The infant plaintiff suffered severe brain injuries during birth following unsuccessful attempts by the defendant obstetrician to perform a forceps delivery in the labour room.
The trial judge found the obstetrician negligent for failing to transfer the mother to a delivery room where a c-section could be performed more quickly if the forceps failed.
The Court of Appeal allowed the obstetrician's appeal and ordered a new trial, finding that the trial judge erred by basing liability on a 'risks management' theory that was not pleaded or argued by the plaintiffs, and by using hindsight to impute knowledge of severe fetal distress to the obstetrician at the critical time.
