These two appeals come before the Board from the Court of Appeal of the Republic of Trinidad and Tobago. They involve proceedings for medical negligence brought on behalf of Aeden Balwah (“Aeden”), a young man now aged 24 who has cerebral palsy, by his mother and next friend Shelly-Ann Balwah (“Mrs Balwah”) against a private hospital, Surgi-Med Clinic Co Ltd (“Surgi-Med”) and a private medical practitioner, Dr Marwan Abdulla (“Dr Abdulla”). Aeden was born at Surgi-Med and Dr Abdulla delivered him. Both Surgi-Med and Dr Abdulla succeeded in resisting Aeden’s claim in the High Court. Aeden appealed against that decision to the Court of Appeal. That was successful to the extent that negligence on Dr Abdulla’s part was found established. Aeden’s appeal against Surgi-Med was unsuccessful. Dr Abdulla now appeals to the Board to overturn the finding of negligence made against him. Aeden appeals against the Court of Appeal’s decision to uphold the High Court’s ruling that he had failed to prove his case against Surgi-Med. Surgi-Med has a cross-appeal to address matters in the event of Aeden successfully defending Dr Abdulla’s appeal. [1]
In general terms, the appeals concern (i) the extent to which it is proper for an appellate court to interfere with primary findings of fact made by a first instance judge and (ii) the correct approach to the admissibility of evidence contrary to a party’s written case and without amendment of that case. [2]
The correct approach for an appellate court asked to substitute its own finding of fact for that of a trial judge is to exercise judicial restraint and give due deference to the conclusion on primary facts by the first instance judge, who will have had the advantage of seeing and hearing all of the relevant evidence. [40]
Dr Abdulla’s appeal is allowed. Aeden’s appeal is refused and Surgi-Med’s cross-appeal is refused as unnecessary. [58]
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