Author: Daniel Millar, 12KBW Pupil
Introduction
The Judicial Committee of the Privy Council has handed down its first judgment of 2026 in an appeal from the Court of Appeal of Trinidad and Tobago in Singh v Persad [2026] UKPC 1. The Claimant sought damages in respect of a catastrophic hypoxic brain injury he suffered at birth.
The Claimant brought a claim against the St Augustine Private Hospital, and Dr Prakashbhan Persad, a consultant obstetrician and gynaecologist engaged privately by the Claimant’s mother. The action against the Hospital, based on delays in providing the necessary staff, succeeded at first instance. The Hospital’s appeal was dismissed; it acted solely as an intervener before the Board. The claim against Dr Persad was dismissed at first instance, but the Court of Appeal allowed the Claimant’s appeal. Dr Persad appealed to the JCPC, ultimately without success.
The facts
The Claimant’s mother had had an uneventful pregnancy. When she arrived at the Hospital’s maternity ward at c.05:00, a cardiotocography (CTG) machine was put into use, measuring the fetal heart rate (FHR). Under the Standard Operating Procedures published by the Government of Trinidad and Tobago, the midwives bore the responsibility for monitoring the FHR throughout labour. It was found that they had done so while Mrs Singh remained on the maternity ward.
Dr Persad, who was not employed by the Hospital but had admitting privileges and access, attended on Mrs Singh. He discovered that, despite cervical dilation, the baby had not descended to the birth canal. Dr Persad told Mrs Singh that an emergency C-section would be required at 09:00. She was transferred to the operating theatre at 10:20 and the CTG detached. After delays in sourcing staff and administering a spinal anaesthetic, the C-section was commenced and the Claimant’s birth recorded at 11:13.
The Claimant was assessed as having suffered severe and permanent brain damage due to prolonged hypoxia before his birth. The trial judge found that the FHR, which would have indicated fetal distress and caused the C-section to be carried out very urgently, was not monitored after Mrs Singh’s transfer to the operating room.
Judgment
In argument before the JCPC, Dr Persad’s ten grounds of appeal were distilled into three key issues:
- whether it was his responsibility to ensure that the FHR was being monitored;
- whether this allegation of negligence had been adequately pleaded and put in cross-examination; and
- whether the delay in carrying out the C-section was unacceptable even without evidence of fetal distress.
The Board’s judgment, given by Lady Rose, largely upheld the Court of Appeal’s conclusions. Dr Persad’s appeal was dismissed.
It was held, first, that the Court of Appeal had been right to find Dr Persad negligent for failing to ensure that he was kept aware of the FHR while Mrs Singh was in the operating theatre. While the midwives would have had conduct of the FHR monitoring – by stethoscope if not by CTG – Dr Persad, in his overarching and supervisory role, had to keep himself informed of the FHR to ensure he could make informed decisions. His failure to do so fell below an acceptable standard.
Secondly, the Board roundly dismissed the argument that the case against Dr Persad had been inadequately put. It revisited the parties’ statements of case, highlighting assertions in Dr Persad’s Amended Defence that the FHR had been continuously reviewed and, perhaps contradictorily, that it was impractical to use CTG equipment in the operating theatre. The Board also noted that allegations of inadequate FHR monitoring had been put to Dr Persad twice during cross-examination. It held that Dr Persad had been aware of the allegations pleaded against him and had had adequate opportunity to respond.
The Board’s findings on the third issue were more nuanced. It upheld the Court of Appeal’s rejection of the submission that nothing could have been done even if Dr Persad had been aware of fetal distress, finding that the C-section could have been performed without delay. It considered, however, that the Court of Appeal had been wrong to depart from the trial judge’s finding that, in the absence of an indication of fetal distress, it was reasonable for extra time to be taken to administer a safer spinal (as opposed to general) anaesthetic; she had heard evidence to that effect which she was entitled to accept.
Comment
The Board accepted that it would not have been Dr Persad’s role to monitor the FHR. It highlighted the judge’s finding that that responsibility fell to the midwives. It noted Dr Persad’s submission that he was not vicariously liable for the midwives’ failure to continue to monitor. However, the Board upheld the Court of Appeal’s conclusion that Dr Persad was liable as his role was supervisory, and as he required the FHR to be monitored to enable to him to make informed decisions, including on the timing for delivery. The Board correctly focussed on Dr Persad’s functional position, not the technical devolution of responsibilities.
Argument was heard as to whether the Court of Appeal had been entitled to depart from the judge’s findings of fact. The Board found that the Court of Appeal had followed the Trinidad and Tobago caselaw, including Beacon Insurance Co Ltd v Maharaj Ltd [2014] UKPC 21 – which itself followed England and Wales authorities such as Assicurazioni Generali SpA v Arab Insurance Group (BSC) [2002] EWCA Civ 1642. The Court of Appeal, importantly, had not challenged the trial judge’s findings of fact, but rather the inferences drawn, such as an errant and unreasonable conclusion that Dr Persad had been, in essence, an observer of events. The limits to the discretion to depart from factual findings, including on the reasonableness of administering a spinal anaesthetic, were also highlighted. These points apply also to appeals within the domestic jurisdiction.
Clinical Negligence Law 