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Is it now easier to make a birth injury claim?


    A change in the law should lead to more successful claims for children who suffer a brain injury due to negligence around the time of their birth.

    By Simon Elliman

One of the difficulties faced by claimants bringing claims for brain injury suffered at the time of their birth is what lawyers call causation.  Essentially, once you prove that there has been negligence (for example, it was negligent not to do a caesarean section earlier as a baby was clearly in distress) you also have to prove that the negligence has caused injury (for example, that the delay in delivering the baby caused oxygen starvation and therefore brain damage) or, put another way, that the brain injury would have been avoided if acceptable treatment had been provided.

A recent case is hoped to make it easier to win a birth injury claim in the future. It’s a rule that doesn’t apply in every case, but means that some claims which might otherwise have failed should now succeed.


Sometimes birth injury claims fail because it’s not possible to say when the brain damage to the baby occurred. It may be clear that the brain damage happened at some point between 2pm and 3pm, but no-one can say exactly when. Maybe it’s proved that the baby should have been born by 2.30pm. How can you tell whether the brain damage had already occurred by 2.30pm (in which case there is no claim) or whether it occurred after 2.30pm, (in which case the earlier delivery would have avoided the damage, so there is a successful claim)?

The answer is that sometimes you can’t tell. But because of what judges have said in a case called Popple v Birmingham Women’s NHS Foundation Trust, it may no longer matter. The law now says that, if medical science can’t prove when the brain damage occurred, but some of it definitely occurred after 2.30pm and so would have been avoided by earlier delivery, the birth injury claim succeeds.

But it doesn’t just succeed in part, as you might think. It succeeds in full. Even though some of the brain damage may have happened anyway, the injured person is treated as though the earlier delivery would have avoided all of it.


The principle is called “material contribution”, and it has been around as a legal principle for a long time – since 1956 in fact, and a case called Bonnington Castings v Wardlaw.  But the principle has only been applied much more recently to medical negligence claims, and the clear application to birth injury claims is very recent indeed.


The Clinical Negligence Team specialise in birth injury claims and know that many of them fail precisely because of this sort of technical causation point. It is very frustrating for the parents of a brain injured child to be told that there has been negligence but a claim still can’t succeed. Due to this development, such frustrating situations may now arise less often, which is a very positive development.

The consequences of suffering a brain injury during birth can be catastrophic, and compensation for birth injury claims usually runs into several million pounds which can make a huge difference to the quality of life of the injured person.  It is vital if you are considering a birth injury claim to instruct a specialist birth injury lawyer who is experienced in the complex legal arguments that need to be made to achieve the best possible outcome.

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