Hughes v SDN Children's Services

The appeal concerned a dispute between the appellants, Mr and Mrs Hughes, and the respondent, SDN Children's Services, regarding the cause of Jacob Hughes' disabilities. The central issue was whether these disabilities were caused by congenital Cytomegalovirus (CMV) infection, and if so, whether this infection resulted from a primary maternal infection during pregnancy. The case was heard on appeal after a trial decision.

The legal issues before the court were whether the trial judge erred in his findings regarding the causation of Jacob's disabilities and whether the appellants had proven, on the balance of probabilities, that Jacob's disabilities were caused by a primary CMV infection contracted by the first appellant during her pregnancy. Specifically, the court had to review the medical evidence, including the opinions of various medical experts, to determine the likelihood of primary versus reactivated CMV infection and its link to Jacob's condition.

The court's reasoning focused on re-evaluating the evidence that the trial judge may have overlooked. It noted that while the first appellant's statistical chance of being seropositive at the start of her pregnancy was high, Jacob's statistical chance of having congenital CMV due to primary infection was low. However, the court considered several factors that supported the appellants' case. These included the first appellant experiencing flu-like symptoms around Christmas, which Professor Isaacs suggested could indicate seroconversion, aligning with the known incubation period of CMV and the estimated time of foetal insult. Furthermore, the first appellant's work environment presented a significantly elevated risk of contracting the virus. Crucially, the court highlighted that Professor Isaacs consistently linked the severity and specific pattern of Jacob's disabilities to a primary CMV infection, and this aspect of his evidence was not challenged in cross-examination or contradicted by other evidence. The court found that the trial judge may have conflated "severity" with the "exact type" and "pattern" of abnormalities, overlooking the significance of the latter in Professor Isaacs' opinion.

The appeal was allowed.