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Chester v Afshar, House of Lords, 14 October 2004

18 October 2004
The issues

Causation – Clinical Negligence – Surgeon Failing To Warn Claimant Of Risk Of Post Operative Paralysis – Whether There Was A Causal Link Between The Failure To Warn And The Claimant’s Injury

The facts

The Claimant suffered from low back pain. A Neurosurgeon advised her to undergo an elective lumbar surgical procedure. There was a 1% to 2% chance of serious neurological damage arising from the operation. The Claimant should have been told of the risk. The surgeon in breach of his common law duty of care failed to inform the Claimant. The Claimant underwent the surgery and sustained the very injury about which she should have been warned, namely serious neurological damage. There was no negligence in the performance of the operation. The surgeon by what he did, did not increase the risks which were inherent in the surgery. However, if the Claimant had been warned she would have not have undergone it.

Instead she would have sought advice on alternatives. The Judge was unable to find whether if the Claimant had been warned she would with the benefit of further medical advice have given or refused consent to surgery. However, if she had agreed to surgery at a subsequent date, the risk would have been the same.

The Trial Judge found that the Claimant had established a causal link between the breach and the injury and found the Defendant liable. The Court of Appeal upheld the decision of the Trial Judge.

The decision

The choice was a stark one between two fundamentally different approaches:- the one favouring firm adherence to traditional causation techniques and the other a greater emphasis on policy and corrective justice. There was no direct English authority permitting a modification of the approach to the proof of causation in a case such as this. However there was the analogy of Fairchild v Glenhaven Funeral Services Limited.

In that case the traditional “but for” standard of causation was not satisfied. The modification of ordinary principles was applied in that case in the interest of justice and policy.

As a result of the surgeon’s failure to warn the patient the Claimant could not have been said to have given informed consent to the surgery in the full legal sense. Her right of autonomy and dignity ought to be vindicated by a narrow and modest departure from traditional causation principles.

Appeal dismissed.

Comments

Lord Hoffman delivered a short but powerful dissent (along side Lord Bingham) noting that the Judge had made no finding that the Claimant would not have had the operation nor was the Judge invited by the Claimant to make such a finding. The Claimant’s case he noted had been that as a matter of law it was sufficient that she would not have had the operation at that time or by that surgeon even though that the evidence was that the risk would have been precisely the same if she had had it at another time or by another surgeon. This Lord Hoffman commented was a logical as saying “that if one had been told, on entering a casino, that the odds on number 7 coming up at roulette were only 1 in 37, one would have gone away and come back next week or gone to a different casino”. He noted that the Claimant had failed to prove the Defendant’s breach of duty caused her loss and that therefore on all principals of tort law the Defendant should not be liable.

There was an issue as to whether a special rule should be created in which Doctors who failed to warn patients of risks should be made insurers against those risks. There may be argument for saying that in such cases a modest award should be made although there would be great difficulty in fixing a suitable figure.

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