Update: clinical negligence

The complex issue of causation in the context of successive tortfeasors was recently considered by the Court of Appeal in Wright (A Child) v Cambridge Medical Group (A Partnership) [2011] EWCA Civ 669.

The court heard an appeal by the claimant, Wright, against the first instance judge's decision that a GP's negligent delay in referral to hospital, where there had also then been a subsequent negligent delay in diagnosis and treatment by the hospital, had not been causative of permanent injuries.

The Court of Appeal found in favour of Wright, Lord Neuberger MR giving the lead judgment and Elias LJ dissenting.

As an initial point, the court felt that the trial judge should have decided whether his conclusion required a finding that the hospital would have been negligent if Wright had been admitted on 15 April, which would have necessitated him making a finding as to whether it had been negligent on 17 April. As a prerequisite to determination of the main arguments on appeal, the court concluded that the hospital had indeed been negligent in its treatment between 17 and 21 April.

The defendants contended that the hospital had caused the damage and that they had not. They argued that the hospital's negligence from 17 April should be regarded as the sole cause of the injuries claimed for; the only damage the defendants could be held liable for was: a) pain between 15 and 17 April; and b) pain from the drainage operation, which would have been avoided had W been referred on 15 April; neither of which had been pleaded by the claimant.

The court considered that this raised two issues: first, whether the defendants' negligence caused or significantly contributed to Wright's injuries; and, second, whether those injuries fell outside the scope of the defendants' duty.

In relation to the first issue, the court concluded that the defendants' breach of duty was a causative factor in the injuries. The court considered that it could not be right that where there were successive tortfeasors each could avoid liability by blaming the other and considered that, applying Rahman v Arearose Ltd [2000] EWCA Civ 190 as per Laws LJ, 'it cannot be 'a rule of law that later negligence always extinguishes the causative potency of an earlier tort''.

In this case, there was a 'synergistic interaction' in that the negligence of both the defendants and the hospital made the other worse, such that it was appropriate to conclude that both were causative of the damage. Indeed, the hospital's negligence was neither of such significance that it justified a finding that the defendants' negligence was not causative of W's injuries, nor was it such an 'egregious event', in terms of the degree or unusualness of the negligence, that it should break the chain of causation.

The court concluded that the negligent delay in treatment that resulted in Wright's permanent injuries amounted to less than six days, of which just over two days' delay was attributable to the defendants' failure to refer and just under three days' delay to the hospital's failure to treat the claimant properly.

No escape

In relation to the second issue, the court concluded that the injuries did not fall outside the scope of the defendants' duty and were not, therefore, too remote, in that the defendants had a duty to refer and the delay in doing so had an 'ongoing effect' because of the increasing risk of permanent harm with the passage of time; because of this ongoing effect, the resulting permanent damage could not be considered to be too remote from the defendants' delay (per Dame Janet Smith).

Wright contended that it was not open to the first instance judge as both a matter of law or on the facts to conclude that her claim failed because the hospital would not have treated her properly if she had been admitted on 15 April, and the court accepted this.

As a matter of law, it was a generally accepted proposition that a doctor cannot escape liability for damage caused by his breach by establishing that, if he had not been in breach, the damage would have occurred anyway because he would have committed a subsequent different breach.

This was a concession correctly made in Bolitho v City and Hackney Health Authority [1998] AC 232. The proposition was based on two principles. First, a party cannot rely on his own wrong, even a hypothetical notional or contingent wrong, though this principle has to be applied with care (Re C L Nye Ltd [1971] 1 Ch 442 considered). Second, the doctor's argument that the damage would have occurred anyway gets him nowhere, because his 'actual' breach has lost his patient the opportunity to claim damages for his subsequent 'notional' breach, this notional breach being the very breach upon which he is relying to avoid liability for the actual breach.

Accordingly, in this case, the negligent failure to refer deprived W of the opportunity to be treated properly, and, if the hospital had not treated her properly, 'that opportunity would be reflected by the fact that she would have been able to recover damages from them'. Unless the negligent late referral resulted in the hospital's subsequent negligence either depriving the late referral of causative effect or taking any damage outside the scope of the duty (as discussed above in relation to the defendants' arguments), the proposition applied. In this instance, the judge had been wrong in law.

Judge's mistakes

As to matters of fact, the court also considered the judge had erred, concluding that: a) the doctors who would have seen W had she been admitted earlier may have treated her appropriately and it was unjustified to consider otherwise; b) indeed, consultants may have been available then, who had not been available two days later, and so the judge's reliance on 'systemic inadequacy' (as the trial judge described it) was not fairly justifiable; c) any inept treatment on 15 April by the hospital would have resulted in significantly less damage; d) the judge had misdirected himself on the burden of proof: once W had established that she should have been referred and as a result would not have suffered damage, there was a presumption that she would be competently treated; which, if a rebuttable presumption, could be discharged by evidence; e) the hospital only narrowly failed to treat appropriately, so things did not need to be much better on 15 April for there to be appropriate treatment; and f) W's condition was less complex on 15 April, so it would have been easier to make the correct diagnosis.

The court concluded that the judge's decision that W would have suffered the same damage if admitted two days earlier could not stand and the presumption that W would be properly treated if she had been admitted then had not been rebutted by the defendants on the facts.

Rejected arguments

The court, however, rejected W's argument that, as she had suffered some damage (i.e. her hip had deteriorated), the defendants were liable for all the damage she suffered, as per an observation in Dingle v Associated Newspapers Ltd [1961] 2 QB 162 by Devlin LJ: 'As between the plaintiff and the defendant, it is immaterial that there are others whose acts have also been the cause of the injury'¦ [T]he plaintiff'¦ can obtain judgment for total compensation from anyone whose act has been a cause of the injury.'

The court considered that this argument relied upon the damage suffered before 17 April being indivisible to that suffered after, as this was a prerequisite to Devlin LJ's observation, and in this case the pain W suffered between 15 and 17 April was divisible from any pain suffered after 17 April, and the hospital could not be held liable for damage before 17 April, so the injuries suffered by W were clearly divisible.

The court also decided that it would probably have rejected W's argument based on a loss of a chance, i.e. the loss of a real chance of proper treatment, even if a less than evens chance. While the court considered that loss of a chance had not been conclusively shut out in cases such as this, and that the issue would be appropriate for reconsideration by the Supreme Court, this level of appellate court should probably not expand the loss of a chance doctrine into the clinical negligence realm, and such an argument should be treated as foreclosed, following Gregg v Scott [2005] UKHL 2.