Andrew Roy KC considers the implications of the Court of Appeal’s recent decision CDE v Surrey and Sussex Healthcare NHS Trust [2023] EWCA Civ 1330 in respect of the vexed and important issue of material contribution.
22 November 2023
Introduction
CDE is a cerebral palsy (CP) case. It is rare example of a successful appeal against findings of fact.
On the face of it, the appeal turned upon the judge wrongly applying the Bolam test in respect of causation (asking what a hypothetical reasonable midwife should have done) rather than properly applying the Bolitho test (asking what the obstetrician who was actually present would have done).
However, the elephant lurking in the room is the application of the material contribution test for causation in respect of CP claims in particular and clinical negligence claims in general.
Essential Facts
C suffered from quadriplegic CP following birth by emergency caesarean section at 18:09 on 4 July 2018. This caesarean was the result of an obstetrician (N) identifying bradycardia when she entered the labour ward room at 17:52. It was agreed that the injury resulted from a short period of near total hypoxic ischaemia.
C claimed that negligent care delay in the transfer of her mother (M) to the labour ward, and thus in delivery, and in monitoring her heart rate during delivery had caused or materially contributed to her CP. The gist of her case was that, but for D’s negligence, the caesarean would have been performed sooner and the CP rendered less severe.
As is common in such claims, C’s case on causation evolved through several iterations. The Particulars of Claim contended that delivery should have been 17:53. In response to a Part 18 request to confirm what on her case was the latest point at which earlier delivery would have made a material difference she pleaded that “Delivery and resuscitation before 1800 would … have avoided all damage. Every minute of delay between 1800 and 1811 … caused or contributed to the overall catastrophic damage … All delay in delivery therefore made a material contribution … but medical science cannot determine the precise extent of such contribution”. The Amended Particulars of Claim then abandoned the contention that delivery should have been by 17:53 in favour of 18:01-18:03 on the basis that the CTG would have been bradycardic by 17:43. Read in conjunction with the Part 18 Response, it appears that C accepted that CP would have occurred irrespective of negligence and that material contribution was her only route to establishing causation. Her closing submission was that “Earlier delivery even by 1, 2 or 3 minutes would have made a material difference”. By the time of the appeal hearing C’s case was that N’s attendance, and thus the delivery, would have been one minute earlier, and this would have made a material difference.
Trial
Ritchie J (“the judge”) dismissed the claim.
The judge held that D had was in breach by delaying by 40-50 minutes the transfer of M to the labour ward. However, he went on to hold that this had made no difference to the outcome.
The judge found that M had arrived on the labour ward just before 17:50 and was connected to the CTG to monitor foetal heart rate. By 17:51, the transducer was sounding out C’s heartbeat, which was bradycardic. N had been on the labour ward and outside the mother’s room at 17:50 and had entered the room at 17:52, before examining the mother and deciding that a caesarean section was required.
In respect of the counterfactual, he held that even if C’s mother had been transferred to the labour ward by 17:10-17:15 as she should have been, a caesarean would not have been required or performed at that time. It was not until 17:49-17:50 that the CTG was would have been bradycardic. This would have led the midwife to call the obstetricians for an assessment within one to three minutes, therefore by 17:49 at the earliest and by 17:52 at the latest. As (a) it would not have been Bolam negligent to call N at 17:52; (b) 17:52 was the time N actually arrived, the prior delay made no difference. C would have been delivered at 18:09 in any event.
Appeal
The Court of Appeal (Peter Jackson, Nicola Davies and William Davies LJJ) unanimously allowed C’s appeal on the very narrow basis that the judge erred in finding that N would probably have walked into M’s room at the same time (17:52) .
Nicola Davies LJ gave the main judgment. She reasoned as follows.
N had been outside the mother’s room at 17:50, had timed the start of her notes at 17:50 and heard the bradycardia at 17:51. Logic indicated that she had begun her note but, on hearing the sound of bradycardia, had immediately entered the room. It followed that there was a short period after 17:50 when N was outside the room writing her note. Whilst N had prefaced her timings by the word “around”, that did not overcome the fact that the judge made findings of specific timings.
Given N’s further unchallenged evidence that she would have entered the room earlier had she heard the bradycardia, there was no need for the judge to postulate what a midwife would or should have done when the trace became bradycardic. There was therefore a flaw in the judge’s reasoning, and his finding that N would probably have walked into the room at the same time as she had did not represent what would have happened on a “but for” scenario. He had incorrectly applied the Bolam test to a Bolitho counterfactual issues. Given that N would have heard the bradycardia herself and entered the room as a result, the question of when the midwife should have called her was irrelevant.
She concluded at [53]:
It follows, and I so find, that the finding of fact that Miss Nicks would have entered M’s room at 17:52 and at the same time as in fact she did ([297]) must be quashed and the appeal allowed upon the basis that Miss Nicks would have entered the room at 17:51. The issue which now falls to be considered is what, if any difference, one minute would have made to the issue of medical causation. At trial this case did not proceed on the basis of a lost minute. None of the experts called to address the issue of medial causation were asked to specifically focus upon a delivery a minute earlier at 18:07 and what, if any difference, this would have made to the primary injury sustained by the claimant and the resultant period of resuscitation. Given the complexity of this issue I have concluded that this case should be remitted to the same judge for specific consideration, supported by further expert evidence, as to the effect upon the claimant’s injuries and functional disability of a delivery at 18:07.
Peter Jackson LJ added the following at [58]:
… there are many contexts in which short periods of time make no difference to the outcome of a trial, and it unnecessary for a court to be at all precise about timings. There are other contexts, of which this is one, where very short time periods may be critical. The judge rightly considered the evidence minute by minute and at paragraph 280 he made a broad finding that any reduction in the period of PHI would have reduced the primary injury to the claimant’s brain neurones. It was therefore not suggested to us that in a case of this kind, a minute of PHI is too short to be capable of mattering. Indeed Mr Sheldon rightly accepted that if there was a ‘lost minute’ the case would have to be remitted. As to his submission that the timings given by witnesses were approximate, I agree with Nicola Davies LJ. Once the judge had made findings on timings, they became fixed points. Now that the delay is measured at a minute, it will be a matter for the judge, having heard further expert evidence, to determine whether that period would as a matter of probability have spared the claimant any material part of her injury.
Comment and takeaway points
It is extremely unusual for a finding of fact be overturned, especially in what the Court of Appeal correctly recognised as a meticulously careful judgment. However, as Peter Jackson LJ noted at [57] “the single error here was not one of fact-finding but of legal logic”. The bar for challenging factual findings remains as high as ever.
The direct takeaway point is to try to ensure that the correct test for causation is applied at all points. However, it is easy to see how this error occurred here.
It is an almost inevitable feature of such cases that the evidence will evolve through the process of reports, joint statement and the trial itself. It will therefore often be unwise for a claimant to pin their causation colours too firmly to any given mask. Indeed, causation will sometimes not properly crystallise until the judge has made specific findings as to the facts and as to breach. CDE provides a vivid illustration of this.
Reflecting this, whilst the Court of Appeal were implicitly critical of the shifts in C’s case, they ultimately accepted per Nicola Davies LJ at [52] that this did not preclude C’s eventual argument as her “pleadings and written submissions did eventually postulate a delivery of 1 – 3 minutes earlier and following from that, a submission that the same would have made a material difference in respect of the issue of causation and injury”. In other words, C had done enough to keep open the argument for causation based on a one minute delay.
The elephant in the room is the issue that has been remitted, material contribution. This is a common issue in CP cases. It will often not be possible to prove that the injury would have been avoided altogether (the window of opportunity for doing so typically being around 10 minutes) and the residual window of opportunity for material contribution will often be very tight. CDE again provides a vivid illustration of this.
Material contribution arose in another recent CP case, CNZ v Royal Bath Hospitals NHS Foundation Trust [2023] EWHC 19 (KB); (2023) 192 B.M.L.R. 941. As it happens, this was another decision by Ritchie J. It was effectively an informed consent case. The judge held that D was at fault for not offering the option of an elective caesarean. He held that the mother would have accepted this and that the CP would have been avoided entirely as a result. However, he held that in the alternative (a) the negligence made a material contribution; and (b) as it was not possible to apportion between negligent and non-negligent caused ischaemia, C would even on that basis have been entitled to recover in full for the CP. The judge himself gave permission to appeal on this point. The Court of Appeal is due to hear the matter by 10th January 2024.
The same issues is likely to arise at the remitted hearing in CDE. It is clear that, if material contribution is established, C will be arguing that she is entitled to recover in full for the CP as the extent of D’s negligent contribution is indeterminate. It is easy to see arguments that such a result would be at least counterintuitive in respect of a one minute delay.
However, whilst CP cases are perhaps a paradigm example of those where material contribution can be critical, the concept is a crucial importance to a clinical negligence claims as whole. Almost by definition, the claimant will have something wrong with them before the alleged negligence, otherwise there would be no need for treatment. It follows that there will often be tortious and non-tortious causes potentially contributing to the injury. The clinical context will often make if difficult if not impossible to apportion between them.
The issue is therefore more likely to arise in clinical negligence claims than personal injury ones where the typical scenario is a claimant who was previously well suffering an accident. Of course, material contribution is often crucial to personal injury claims as well. It is a prominent feature in disease claims. And even in a straightforward accident claim, the claimant will not infrequently have suffered from co-morbidities or other non-tortious insults.
Likewise, there are many clinical negligence cases where material contribution has no application by reference to the factual matrix or (as the law currently stands) the indivisible nature of injury. For an example of the latter see Ministry of Defence v AB [2010] EWCA Civ 1317; (2011) 117 B.M.L.R. 101 per Smith LJ at [150] “the claimants cannot rely on … material contribution … Cancer is an indivisible condition; one either gets it or one does not. The condition is not worse because one has been exposed to a greater or smaller amount of the causative agent.”
More generally, AB indicates how material contribution as a concept is under stress. Its current formulation has recently been called into question (obiter) in the clinical negligence cases of Davies v Frimley [2021] EWHC 169; [2021] PIQR P14 and Thorley v Sandwell & West Birmingham Hospitals NHS Trust [2021] EWHC 2604; [2021] Med. L.R. 681. In the latter Soole J, apparently doubting AB, expressed the view at [151 that the law of material contribution to be “ripe for authoritative review”.
Nevertheless, the point remains that material contribution is likely to be a key clinical negligence battleground in the near future. The outcome of CNZ and/or CDE could have profound implications for not just for CP cases, but also for clinical negligence (and indeed personal injury) claims in general. Moreover, for claimants wishing to test the current orthodoxy on material contribution, Thorley suggests that the proposition in AB that it can have no application to an indivisible injury might be open to challenge. Watch this space.
In the meantime, the following takeaway points are suggested:
- Claimant lawyers should keep the material contribution test in mind and ensure that the evidence is properly directed towards it on all realistic factual scenarios and findings of breach.
Thus, for example, even if the claimant’s expert is of the view that plain vanilla “but for” causation is established, they should nevertheless address material contribution in the alternative. This would entail an explanation of the nature of the injury (i.e. how and why it can vary in gravity depending on the number/nature/severity of the insult(s)) and why the defendant’s negligence made a significant difference in the case in in question. - So should defendant lawyers. Thus it will be often insufficient for defendant experts simply to address plain vanilla “but for” causation. They should also address why the (putative) negligence did not make a material contribution, for example by reference to the nature of the injury. Again, the issue should be addressed on all realistic factual scenarios and findings of breach.
- Parties and their advisors on both sides should be bear the uncertainties regarding material contribution in mind when assessing merits and risks, especially with regards to settlement.
Clinical Negligence Law 