The Judicial Committee of the Privy Council has allowed an obstetrician’s appeal against a finding of negligence in a Trinidad and Tobago birth injury case, restoring the decision of the trial judge. The case, Balwah v Abdulla, involved a delivery in May 2002, with proceedings issued in 2013 and tried in 2019.
The claimant’s appeal against a private hospital was refused, and its protective cross-appeal fell away. The trial judge found two breaches of duty, but neither was shown to have caused the claimant’s injury.
Causation turned on a narrow chronology, with all counsel agreeing that unless at least an hour had elapsed without monitoring after attempts at vaginal delivery ceased, the mechanism relied on could not have operated. The judge found that attempted delivery ran from 4.30 am to 5.30 am, leaving no sufficient window.
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The Court of Appeal substituted a finding of 4.00 am, criticising the judge on three grounds and holding the obstetrician to a pleaded admission from which his witness statement had departed. However, the Privy Council found each ground unsustainable.
The inference drawn from a nurse’s note recording full dilation was said to be a matter for expert comment, but the transcript contained an exchange in which the claimant’s own obstetric expert accepted that dilation would not be measured during attempted delivery. A referral note recording prolonged second stage labour had been set out in the judgement, and its weight was for the judge.
The Privy Council also noted that departures from a pleaded case are permissible where justice requires, citing Loveridge v Healey and Ali v Dinc. On causation, the Board held that the appellate court had proceeded as though general mismanagement of labour were an established breach when no such finding existed.
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The decision in Balwah v Abdulla highlights the importance of careful consideration of the facts in negligence claims, and the need for appellate courts to exercise caution when substituting their own findings for those of the trial judge. They noted that entering judgement without proper consideration of the evidence can be premature, and the matter should have been remitted for further consideration.
The Privy Council closed by returning to rule 20.1(3) of the local Civil Proceedings Rules, whose threshold of good explanation and promptitude admits of no discretion once failed. They invited the Rules Committee to reconsider whether amendment should instead be governed by a discretion balancing prejudice against the interests of justice.
