The case involved allegations of negligence concerning the Claimant's neonatal management in 1982. The Cliamant had been born by Caesarean section at 32 weeks gestation in poor condition. In the first hours of life he was intubated and was noted, at about 0015 hours on the day after birth, to be suffering from metabolic acidosis. He developed hyaline membrane disease and an intraventricular haemorrhage and hydrocephalus with resultant severe cognitive and physical disability.
By the end of the trial, which was on liability only, the sole focus of dispute was on the allegedly negligent failure to detect and rectify a problem with the Claimant's ventilation during a 45 minute period between 2330 hours and 0015 hours, when he was 2-3 hours old. It was common ground that by 0015 hours the Claimant's endotracheal tube had slipped out of position. the Claimant's case was that the seriousness of the Claimant's condition at that time indicated that it was likely that the tube had slipped out of position by 2330 hours after which time some oxygen had reached the Claimant, but not a sufficient amount.
According to the judgment this case arose out of oral evidence from the Claimant's expert. The Judge rejected it for two principal reasons. First, the theory was "no more than speculation, it being more likely that the tube was disturbed" when checks were made at about 0015 hours. Second, the doctor concerned with the Claimant's care (over 30 years previously) said in evidence that she would have been watching the Claimant's breathing on a continual basis and would have noticed if he had ceased to breathe in time with the ventilator.
The Judge was satisfied that the Claimant's deteriorating condition up to 0015 hours was explicable by his condition at birth rather than deprivation of oxygen in the neonatal period. The Claimant could not, in the judge's finding, prove causation on a "but for" analysis. His Counsel relied, in the alternative, on Bailey-v-MOD, contending that the 45 minute period made a material contribution to the subsequent brain damage. the Judge rejected that argument:
"...this is not a case of cumulative agents, where it is impossible to determine whether or not a negligent act caused any injury. In this case the experts have been able to express a clear view as to whether the injury would or would not have occurred in any event and I have found that because of the Claimant's condition at birth, it would have occurred notwithstanding the 45 minute period in question.
"I accordingly hold that, even if the Defendant had been responsible for the worsening of the Claimant's condition between 2330 and 0015 (contrary to my finding above) I would not have found that such matters caused the Claimant's ultimate brain injury."
Bailey-v-MOD will not apply unless medical science cannot answer the but for test one way or the other. If the Court is satisfied that the evidence answers the but for test negatively from the Claimant's point of view, then Bailey-v-MOD does not permit a "second bite at the cherry".