Webster (A Child) v Burton Hospitals NHS Foundation Trust [13 February 2017] EWCA Civ 62

This appeal is against the judgment… dated 28 November 2014 in which he found in favour of the respondent hospital on the issue of liability (causation), breach of duty having been admitted. (paragraph 1)

The appellant was born at 16.09 on 7 January 2003… with cerebral palsy. He has profound physical and cognitive impairment. It is common ground that his disabilities were caused by an injury to his brain which occurred in a period of between 72 and 48 hours prior to his delivery, and that if he had been delivered before 16.09 on 4 January 2003 he would have avoided brain injury and his consequent disabilities. The injury was a hypoxic-ischaemic insult to the brain caused by a relatively short period of cord compression. If it had been longer than a relatively short period, he would have died. (paragraph 2)

In summary, the appellant’s case is that Mr Hollingworth should have offered the possibility of induction of labour at term on 27 December; and that if he had done so the appellant’s brain damage would have been avoided. The respondent’s case is that, if the two omitted ultrasound scans had been carried out (as it accepts they should), they would have provided reassurance. The SGA, the polyhydramnios and (to the extent that it still existed) the asymmetry should not have given rise to the need for any heightened vigilance or advice about the dangers which might be avoided by induction. (paragraph 17)

…the Judge followed the Bolam approach of basing his judgment on whether D acted in accordance with a responsible body of expert medical opinion. It is now clear from Montgomery that this is no longer the correct approach. (paragraph 34)

…I would allow the appeal and reverse the Judge’s decision on the issue of liability. (paragraph 43)