Background
The Claimant, aged 11 months, contracted chickenpox and was admitted to hospital where she acquired a bacterial super-infection. She was sent home without diagnosis and her condition deteriorated. The Claimant’s mother contacted the Defendants but they failed to arrange for the Claimant to be seen. The Defendants admitted that this failure represented negligence.
The Claimant was seen by a different GP two days later and was referred to hospital. However, the hospital failed to diagnose her condition for a further three days by which stage she had sustained severe permanent injury.
The trial judge, Mackay J, held that, although the Defendants admitted they were negligent in not referring the Claimant to a hospital when they should have done, the Claimant failed on causation. Even if the Claimant had been admitted at an earlier date, she would not have been treated adequately so would have suffered the permanent damage in any event.
The Claimant appealed. The main issues were whether:
- The hospital’s negligence (for the delayed treatment) should be regarded as the sole cause of injury.
- The damage suffered as a result of the Defendants’ negligence was divisible from the damage suffered after admission to hospital.
- It was wrong (in law and on the facts) to conclude that the hospital would have negligently failed to treat the Claimant if she had been referred and admitted at an earlier time.
Judgment
The Claimant’s appeal was allowed (Lord Justice Elias dissenting). The Master of the Rolls, Lord Neuberger, rejected the Defendants’ argument that their duty was restricted to referring the Claimant to a hospital to be properly treated. The Defendants argued that the damages they should be liable for did not extend to the loss from having been referred too late for the Claimant’s condition to have been remedied. The Court disagreed - the Defendants’ duty extended to the permanent injury suffered.
The burden of proof was on the Defendants to prove the hospital would have still treated the Claimant negligently even with earlier referral. The Defendants had not discharged this burden as a matter of fact. Even if the Defendants had established such negligence on the part of the hospital, the Defendants had still deprived the Claimant the opportunity to be treated properly and, therefore, had an ongoing effect on events.
It was held that the hospital's treatment of the Claimant was not such an egregious event - in terms of the unusualness of the negligence or the period of time for which it lasted - to defeat the causative link between the Defendants’ negligence and the injury. It was the Defendants’ delay of over two days for referral that was of crucial importance.
Comment
This case highlights the fact that where there are successive tortfeasors, liability cannot be avoided by them blaming each other. Whether the negligence of the first is negated by the subsequent negligence of the second depends very much on the facts of each particular case including the length of each period of negligence and the unusualness of events. Careful analysis of the contributory effects of each period of negligence must, therefore, be undertaken at an early stage.
A point to be alive to is Lord Neuberger’s criticism that neither party saw it fit to join the hospital in proceedings. He stated that in cases such as this, it can be more expensive in terms of time and cost not to join the relevant party and hear their evidence. He suggested there would have been a better chance of a negotiated settlement had the hospital been a party. Whether this judgment tests the medical defence organisations (MDO) protocol in similar future cases remains to be seen.
Further, Lord Neurberger indicated his support for previous House of Lords’ decisions which rejected loss of chance arguments in clinical negligence cases. Resolving issues of causation on the balance of probabilities remains the favoured approach for achieving “certainty and consistency”. As this case shows, however, causation remains tricky where multiple tortfeasers are involved.