The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The evidence established that cauda equina syndrome was a random and inherent risk of the surgery, which would have been the same whenever and at whoever’s hand she had the operation. It was also established that she would have had the operation at some point in time, regardless of whether she was warned of the risk. The judge had not found that she would not have had the operation at that time if told. The doctor now appealed.
Held: The appeal failed. The claimant had established causation. The ‘but for’ test was satisfied, because she would not have had the operation when she had it if the appropriate warning had been given and on the probabilities the complication would not have arisen on another occasion The issue went as to causation. A surgeon owes a legal duty to a patient to warn him or her in general terms of possible serious risks involved in the procedure. Her right of autonomy and dignity can and ought to be vindicated by a narrow and modest departure from traditional causation principles. The doctor was liable (Bingham and Hoffmann dissenting).
Lord Hope of Craighead said: ‘To leave the patient who would find the decision difficult without a remedy, as the normal approach to causation would indicate, would render the duty useless in the cases where it may be needed most. This would discriminate against those who cannot honestly say that they would have declined the operation once and for all if they had been warned. I would find that result unacceptable. The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Unless this is done the duty is a hollow one, stripped of all practical force and devoid of all content. It will have lost its ability to protect the patient and thus to fulfil the only purpose which brought it into existence. On policy grounds therefore I would hold that the test of causation is satisfied in this case. The injury was intimately involved with the duty to warn. The duty was owed by the doctor who performed the surgery that Miss Chester consented to. It was the product of the very risk that she should have been warned about when she gave her consent. So I would hold that it can be regarded as having been caused, in the legal sense, by the breach of that duty. . . I would hold that justice requires that Miss Chester be afforded the remedy which she seeks, as the injury which she suffered at the hands of Mr Afshar was within the scope of the very risk which he should have warned her about when he was obtaining her consent to the operation which resulted in that injury.
Lord Woolf said: ‘In a case where it is being alleged that a plaintiff has been deprived of the opportunity to make a proper decision as to what course he or she should take in relation to treatment, it seems to me to be the law, as indicated in the cases to which I have just referred, that if there is a significant risk which would affect the judgment of a reasonable patient, then in the normal course it is the responsibility of a doctor to inform the patient of that significant risk, if the information is needed so that the patient can determine for him or herself as to what course he or she should adopt. ‘
Judges:
Lord Bingham of Cornhill, Lord Steyn, Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe
Citations:
[2005] 1 AC 134, [2004] 3 WLR 927, [2004] UKHL 41, Times 19-Oct-2004, 67 BMLR 66
Links:
Jurisdiction:
England and Wales
Citing:
Appeal from – Afshar v Chester CA 27-May-2002
The surgeon carried out the operation successfully, but the claimant suffered consequential post operative damage. He had not been warned of the risk, and sought damages.
Held: Failure to warn of a risk did not vitiate consent, and any . .
Cited – Fairchild v Glenhaven Funeral Services Ltd and Others HL 20-Jun-2002
The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the . .
Cited – Smith v Barking, Havering and Brentwood Health Authority 1994
The patient claimed damages.
Held: On the balance of probabilities the claimant would have consented to the operation even if properly advised as to the risk of tetraplegia. The defendant was not liable. . .
Cited – Pearce and Pearce v United Bristol Healthcare NHS Trust CA 20-May-1998
A doctor advised a mother to delay childbirth, but the child was then stillborn. She complained that he should have advised her of the risk of the baby being stillborn.
Held: ‘In a case where it is being alleged that a plaintiff has been . .
Cited – Bolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
Cited – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL 21-Feb-1985
Explanation of Medical Risks essential
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to . .
Cited – Bolitho v City and Hackney Health Authority HL 24-Jul-1997
The plaintiff suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure as a child whilst at the defendant hospital. A doctor was summoned but failed to attend, and the child suffered cardiac arrest and brain . .
Cited – Maynard v West Midlands Regional Health Authority HL 1985
The test of professional negligence is the standard of the ordinary skilled man exercising and professing to have that special skill. Lord Scarman said: ‘a doctor who professes to exercise a special skill must exercise the ordinary skill must . .
Cited – Smith v Tunbridge Wells Health Authority 1994
The patient was to undergo rectal surgery. He claimed that the doctor had failed to warn him of the risks.
Held: The claimant would have declined the operation if he had been properly advised of the risk of impotence and bladder malfunction, . .
Cited – McAllister v Lewisham and North Southwark Health Authority 1994
The patient claimed damages after suffering injury in an operation, saying the doctor had failed to warn of the risk.
Held: The claimant would not have had the operation if she had been properly warned and on balance of probabilities she would . .
Cited – Smith v Salford Health Authority 1994
The doctor had failed to warn the patient of the risks inherent in the planned operation.
Held: The court not have found him liable for a failure to warn, because he was not satisfied that the claimant would not have had the operation if he . .
Cited – Chappel v Hart 2-Sep-1998
Austlii (High Court of Australia) Negligence – Causation – Failure to warn of inherent risk of operation about which patient had specifically inquired – Plaintiff would have inevitably required the same operation . .
Cited – Monarch Steamship Co Ltd v Karlshamns Oljefabriker A/B HL 1949
Damages were sought for breach of contract.
Held: After reviewing the authorities on remoteness of damage, the court reaffirmed the broad general rule that a party injured by the other’s breach of contract is entitled to such money . .
Cited – Carslogie Steamship Co Ltd v Royal Norwegian Government HL 1952
The plaintiff’s vessel had been damaged in a collision, and underwent temporary repairs at Port Glasgow. It was certified as authorised ‘to be confirmed in her present class without fresh record of survey, subject to certain permanent repairs at the . .
Cited – Stapley v Gypsum Mines Ltd HL 25-Jun-1953
Plaintiff to take own responsibility for damage
The question was whether the fault of the deceased’s fellow workman, they both having disobeyed their foreman’s instructions, was to be regarded as having contributed to the accident.
Held: A plaintiff must ‘share in the responsibility for the . .
Cited – Empress Car Company (Abertillery) Ltd v National Rivers Authority HL 22-Jan-1998
A diesel tank was in a yard which drained into a river. It was surrounded by a bund to contain spillage, but that protection was over ridden by an extension pipe from the tank to a drum outside the bund. Someone opened a tap on that pipe so that . .
Cited – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
Cited – Associated Portland Cement Manufacturers (1900) Ltd v Houlder Brothers and Co Ltd 1917
A vessel was delayed in sailing and torpedoed on 25 May 1916. It would not have been torpedoed if it had made the same voyage two or three days earlier.
Held: The claim failed. There was no cuasative link. . .
Cited by:
Cited – Gregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Cited – Moy v Pettman Smith (a firm) and another HL 3-Feb-2005
Damages were claimed against a barrister for advice on a settlement given at the door of the court. After substantial litigation, made considerably more difficult by the negligence of the solicitors, the barrister had not advised the claimant at the . .
Cited – Ashley and Another v Chief Constable of Sussex Police HL 23-Apr-2008
The claimants sought to bring an action for damages after a family member suspected of dealing drugs, was shot by the police. At the time he was naked. The police officer had been acquitted by a criminal court of murder. The chief constable now . .
Cited – Mosley v News Group Newspapers Ltd QBD 24-Jul-2008
The defendant published a film showing the claimant involved in sex acts with prostitutes. It characterised them as ‘Nazi’ style. He was the son of a fascist leader, and a chairman of an international sporting body. He denied any nazi element, and . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – Montgomery v Lanarkshire Health Board SC 11-Mar-2015
Change in Doctors’ Information Obligations
The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. The consultant considered that a . .
Cited – Meadows v Khan QBD 23-Nov-2017
Claim for the additional costs of raising the claimant’s son, A, who suffered from both haemophilia and autism. It is admitted that, but for the defendant’s negligence, A would not have been born because his mother would have discovered during her . .
Lists of cited by and citing cases may be incomplete.
Professional Negligence, Damages
Updated: 23 June 2022; Ref: scu.216461
