TW (A Child) v Royal Bolton Hospital NHS Foundation Trust [2017] EWHC 3139 (QB) (04 December 2017)

…a claim in negligence for damages for personal injury and consequential losses arising out of C being born at the D’s hospital in March 2008 with serious brain injury. He was born by vaginal breech delivery at 05.57 on 26 March 2008. It was common ground between the parties that C was injured as a result of the events surrounding his delivery. C was injured by a period of near total hypoxic ischaemia following collapse of his circulation at about 05.40. Circulation was restored at about 10 minutes of age that is at 06.07 when his Apgar score reached 5 out of 10. The period of C’s collapse lasted a total of 27 minutes. If he had been exposed to only 10 minutes of circulatory collapse he is likely to have been undamaged. (paragraph 2)

D,,, has accepted that ‘the Claimant would probably have been spared if he had been delivered by caesarean section before 05.50.’ (paragraph 3)

The allegations of breach of duty do not concern the vaginal delivery which gave rise to the injury. The acute profound hypoxia accounting for the brain injury was the result of cord compression associated with the vaginal breech delivery. C’s vaginal delivery was undoubtedly complicated… by a combination of (i) a very rapid labour and (ii) C being in a breech presentation which had not been diagnosed before the labour started. It is not suggested either of these complications could reasonably have been foreseen before C’s mother was admitted in labour. (paragraph 4)

Rather the one and only breach of duty of care alleged, is in failing to invite or advise Cl’s mother to come into hospital when what has become known as the first telephone call, was made to the midwifery unit by C’s paternal grandmother who passed the phone to the mother to speak to the midwife directly. This call was at about 4.00 am on the 26th of March 2008.

[There was factual uncertainty concerning the telephone call.]

Breach of duty

a) The mother had a SRM at 03.30;

b) The mother was only 19 years of age;

c) C’s mother was in significant pain and contracting.

d) C’s mother and her family were concerned enough about C’s mother’s condition to ring the hospital at 4.00am;

e) C’s mother was wanting to come into hospital and was asking to come in. (paragraph 79)

the advice which was given, which was that C’s mother should not come in with a clear positive discouragement from coming in, fell below any acceptable standard of competent care which in these circumstances required that the mother in that first call should have been issued at the very least with an invitation to come into the hospital to be assessed and checked out when she was ready to do so. The advice given was below the standard of any reasonable responsible midwife. Breach of duty has been established. (paragraph 80)

…the only competent advice was to invite the mother to come in but to leave it to her how urgently she came in. It seems to me to be both logical and reasonable to leave it to the mother as she is probably the best judge of how well she is coping and whether she wants pain relief and reassurance. (paragraph 87)

Factual causation

[There was detailed consideration of the timings.]

…the mother would have been in theatre and the spinal anaesthetic would have been started to be administered before 05.15, that is at around 05.00 or not long thereafter, and delivery would have been achieved before 05.50 meaning C would have been spared his injuries. (paragraph 122)


Claimant succeeds on liability + causation. (paragraph 124)