Court of Appeal Finds Error in Timing in CDE v Surrey and Sussex Healthcare NHS Trust Medical Negligence Case

Citation: [2023] EWCA Civ 1330
Judgment on


The case of CDE v Surrey and Sussex Healthcare NHS Trust is a significant exploration of how English courts interpret and apply legal tests within the realm of medical negligence, particularly with a focus on causation. The Court of Appeal, presided by Lady Justice Nicola Davies, Lord Justice William Davis, and Lord Justice Peter Jackson, examined whether the High Court, with Mr. Justice Ritchie presiding, erred in its application of the legal tests for medical negligence and causation. This analysis provides a detailed overview of the appellate court’s assessment of the legal principles applied at first instance, highlighting critical judicial interpretations and the subsequent legal consequences for both the claimant and the respondent.

Key Facts

The heart of the dispute involves an appellant/claimant, a severely brain-damaged child, who suffered a brain injury around the time of her delivery at the East Surrey Hospital. The claimant contended there was a negligent delay in her delivery, resulting in acute profound hypoxic ischemia (PHI), and ultimately causing severe global developmental delay and quadriplegic cerebral palsy. The judge at first instance found breaches of duty by the NHS Trust but concluded that the brain damage occurred regardless of these breaches. The appellant sought to challenge the timing of the factual causation established by the judge, arguing that the consultant obstetrician, Miss Nicks, would have entered the mother’s room earlier had the cardiotocograph (CTG) been set up as required, potentially altering the outcome for the child.

The legal principles that play a central role in this case include:

  • The Bolam Test: Originating from Bolam v Friern Hospital, this test determines negligence by assessing whether a medical professional acted in accordance with a practice accepted as proper by a responsible body of medical professionals.

  • The Bolitho Addendum: As elucidated in Bolitho v City and Hackney HA, this principle refines the Bolam test by requiring the court to ensure that the medical opinions have a logical basis and consider the comparative risks and benefits.

  • Causation in Medical Negligence: The claimant must prove the injury was caused by the breach of duty. In circumstances involving omissions to act, the court examines the hypothetical scenario of what would have happened had the duty been fulfilled.

The Court of Appeal meticulously dissected the application of these tests by the trial judge, specifically scrutinizing the determination of factual causation and timing.


The Court of Appeal found an error in the first instance judge’s application of legal logic, determining that had Miss Nicks heard the bradycardia at 17:50 as she would have on the proper “but for” scenario, she would have entered the room at 17:51, not 17:52 as found by the judge.

This one-minute earlier entry would have led to the baby’s delivery one minute earlier, at 18:07. Since the judge found that every minute of PHI mattered in terms of the claimant’s injury, this error in timing was material.

The appeal court set aside the finding of the first instance judge that the claim failed on factual causation for this reason and remitted the issue back to the same judge for further consideration with the benefit of additional expert evidence.


The CDE v Surrey and Sussex Healthcare NHS Trust case underscores the appellate court’s rigorous scrutiny of legal logic when applied to medical negligence and causation. The legal intricacies of the Bolam and Bolitho principles in relation to factual determinations of negligence within the National Health Service are central to understanding the decision-making process in this appellate judgment. This case will be an instructive reference for the interpretation and application of these principles in future claims of medical negligence and evidences the significance the court places on precise timings and the “but for” scenario in cases of childbirth-related medical negligence.

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