Aeden Balwah (by Shelly-Ann Balwah, his mother and next friend) and another (Respondents) v Marwan Ahmad Alsayed Abdulla (Appellant) (Trinidad & Tobago)

Case summary

Case ID

JCPC/2025/0063

Jurisdiction

Trinidad and Tobago

Parties

Appellant(s)

Marwan Ahmad Alsayed Abdulla

Respondent(s)

Aeden Balwah (by Shelly-Ann Balwah, his mother and next friend)

Surgi-med Clinic Co. Ltd

Issue

These appeals concern allegations of clinical negligence following Aeden’s birth. The issues raised for the JCPC’s consideration all concern findings of fact in relation to the cause of Aeden’s cerebral palsy. In Dr Abdulla’s appeal: (1) Was the Court of Appeal wrong to find that the High Court had made a “plainly wrong” finding of fact as to the timing of Dr Abdulla’s arrival? (2) Was the Court of Appeal wrong to find that causation was inevitably proved against Dr Abdulla, if it was proved that he arrived at 4am? In Aeden’s appeal: Was Court of Appeal wrong to uphold the High Court’s finding that it had not been proved that Surgi-Med Co Ltd’s breach of duty caused Aeden’s cerebral palsy?

Facts

Aeden Balwah was born by caesarean section at around 6.15am on 19 May 2002. He was born at Surgi-Med Clinic, which was owned and managed by Surgi-Med Co. Ltd (“the Clinic”). Dr Marwan Abdulla (“Dr Abdulla”) was contracted by Aeden’s mother (Mrs Balwah) to be the attending obstetrician throughout her pregnancy and at Aeden’s birth. Aeden’s mother (Mrs Balwah) was admitted to Surgi-Med Clinic at around 6.30pm on 18 May 2002. She was given a dose of misoprostol (a drug used to induce labour), which was administered by Dr Abdulla before his departure at around 8pm. Dr Abdulla returned the next morning. The exact time of his return is disputed. At 5.30am, Dr Abdulla made a clinical decision to proceed to a caesarean section. Aeden was delivered by caesarean section at around 6.15am. Aeden has cerebral palsy. By a claim form filed on 3 May 2013, Aeden brought claims for damages against Dr Abdulla and the Clinic. Aeden alleged that his cerebral palsy was caused by their negligence during Mrs Balwah’s labour and delivery. It is known that Aeden’s cerebral palsy was caused by a factor which occurred prior to his birth. However, it is not known whether that factor occurred prior to Mrs Balwah’s labour (pre-partum), or during labour (intra-partum). It is therefore possible that his cerebral palsy was caused by an intra-partum event, specifically a Partial Prolonged Hypoxic Ischaemia (“PPHI”), which would involve Aeden being partially deprived of oxygen for a period during his mother’s labour. The courts below took it as having been agreed by the experts in this case that for PPHI to occur during the 2nd stage of labour, that stage would need have lasted for over 1 hour. It was agreed by the parties that the 2nd stage of Mrs Balwah’s labour ended at 5.30am, when the decision to proceed to a caesarean section was made. It was also agreed between the parties that the beginning of the 2nd stage coincided with Dr Abdulla’s arrival at the clinic in the early hours of 19 May 2002. Originally, it was agreed by the parties that Dr Abdulla had arrived at 4am. This was Dr Abdulla’s position in his pleaded Defence to the claim, and he never amended his pleaded position. However, in the course of the trial before the High Court, the Clinic amended its pleaded case so as to retract its agreement on this issue and suggest that Dr Abdulla had instead arrived at 4.30am. Dr Abdulla’s oral and written evidence at trial was that he had arrived at 4.30am. Had Dr Abdulla arrived at 4am, the 2nd stage of Mrs Balwah’s labour would have lasted >1 hour, which would be a sufficient period for PPHI to occur during that stage. Had Dr Abdulla arrived at 4.30am, the 2nd stage would have been <1 hour and therefore would not have been sufficient for PPHI to occur during the 2nd stage. The High Court of Trinidad and Tobago found the Clinic had (through the actions of the nurses and staff it employed) breached its duty of care to Aeden by (1) failing to keep a proper record of events with respect to Aeden and Mrs Balwah, and (2) failing to monitor Aeden’s foetal heart rate between 8pm on 18 May 2002 and 12.30am on 19 May 2002. The High Court found Dr Abdulla had breached his duty of care to Aeden by (1) failing to properly inform Mrs Balwah about the risks of misoprostol, and (2) administering a large dose of misoprostol without extremely good cause. The High Court found that Aeden had not proved that any of these failures had caused him to develop cerebral palsy. The High Court reached this conclusion on the basis of a finding that Dr Abdulla had visited Mrs Balwah at 4.30am, and therefore that the 2nd stage of labour was not sufficiently prolonged for PPHI to occur during that stage. On that basis, the High Court concluded that it was more likely that Aeden’s cerebral palsy was caused by a pre-partum event than by the negligence of either Dr Abdulla or the Clinic. Consequently, Aeden’s claim against both defendants was dismissed. Aeden appealed the High Court’s decision. The Court of Appeal upheld the High Court’s findings in relation to the Clinic but held the High Court had been “plainly wrong” to conclude that Dr Abdulla arrived at 4.30am. The Court of Appeal found that Dr Abdulla had arrived at 4am meaning the 2nd stage of Mrs Balwah’s labour was sufficiently prolonged for PPHI to occur during that stage. The Court of Appeal held it was more likely than not that Aeden’s cerebral palsy was caused by PPHI, and therefore Aeden had proved that Dr Abdulla’s negligent management of the delivery and labour had caused his cerebral palsy. The Court of Appeal allowed Aeden’s claim against Dr Abdulla, subject to an assessment of the damages to be awarded. Dr Abdulla now asks the Privy Council to overturn the Court of Appeal’s decision in relation to Aeden’s claim against him. Aeden asks the Privy Council to overturn the Court of Appeal’s decision to uphold the High Court’s dismissal of his claim against the Clinic.

Date of issue

10 July 2025

Case origin

PTA

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