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Articles, News | Mon 24th Apr, 2023
This week the team look at what some will find a surprising development in the doctrine of novus actus interveniens in the context of medical interventions, and ask whether we’re likely to see an increase in claims against the NHS as a result; and we also consider the operation of Regulation 11 of the Package Travel and Linked Travel Arrangements Regulations 2018 where visa requirements prevent travel.
Meanwhile, our extensive cocktail tastings have come to an end (and not a moment too soon), with the team narrowly favouring the simple perfection of the Deka in the Afternoon – a potent mixture of absinthe and champagne – over the siDEKAr or the classic Tom Collins. Remarkably, this makes it two for two for Nathanial Martindale of Plexus; an accolade to be proud of, and one we will no doubt be toasting over the Summer, should it ever arrive.
When will negligent surgical treatment breach the chain of causation?
Jenkinson v Hertford County Council [2023] EWHC 872 (KB) is a decision that may leave many personal injury practitioners questioning what they thought they knew about the chain of causation.
The claim arose out of a tripping accident in which the Claimant suffered a nasty ankle fracture. Shortly before the first CCMC, the Defendant’s expert produced a report in which he opined that the surgical treatment of the fracture, while it was the correct intervention, had been performed negligently. Had it not been, the Defendant’s expert was of the opinion that the Claimant would have made a reasonable recovery with a return to work within 3-6 months. In fact, the Claimant had had a very poor outcome involving 6 further surgeries and consideration of amputation.
The Defendant applied for and was refused permission to amend its Defence to deny that it could be held responsible for injury, loss and damage arising from negligent treatment of the Claimant’s original injury. They alleged that responsibility for this rested with the NHS Trust. Further or alternatively, any chain of causation had been broken by negligent treatment, which constituted a novus actus interviens. It was that refusal of permission which was the subject of the appeal before Baker J.
The judge refused permission on the ground that the proposed amended Defence did not have a real prospect of success. This was because he considered that Webb v Barclays Bank and Portsmouth Hospitals NHS Trust [2001] EWCA Civ 1141 establishes as a rule of law that medical treatment of an injury caused by a defendant’s tort cannot break the chain of causation unless it is such grossly negligent treatment as to be a completely inappropriate response to the injury (“the Specific Rule”). He found that there was no prospect of the Defendant satisfying the Specific Rule.
Webb was also a tripping case in which the Claimant had, after her injury, wrongly been advised to undergo above knee amputation. In an appeal relating to Barclays’ contribution claim against the NHS Trust, the Court of Appeal ruled:
“52. … The question here is whether, when an employee is injured in the service, and by the negligence, of her employer, his liability to her is terminated by the intervening negligence of a doctor brought in to treat the original injury, but who in fact made it worse.
53. Unsurprisingly, there is no general rule on the question. As Laws L.J. said in Rahman v Arearose Limited [2001] [QB] 351 at 366G:
“… it does not seem to me to be established as a rule of law that later negligence always extinguishes the causative potency of an earlier tort. Nor should it be. The law is that every tortfeasor should compensate the injured claimant in respect of that loss and damage for which he should justly be held responsible.”
54. The same question was considered in the High Court of Australia in Mahoney v Kruschick (Demolitions) Pty Ltd (1985) 156 C.L.R. 522 …
55. Finally, we agree with the editors of Clerk & Lindsell on Torts, when they say:
“Moreover, it is submitted that only medical treatment so grossly negligent as to be a completely inappropriate response to the injury inflicted by the defendant should operate to break the chain of causation” (18th ed., 2-55).”
56. We are of clear opinion that [here] the chain of causation was not broken. We have in mind that:
57. In short, the negligence in advising amputation did not eclipse the original wrong-doing. The Bank remained responsible for their share of the amputation damages. The negligence of [the consultant] was not an intervening act breaking the chain of causation.”
Rahman was a case in which the NHS Trust had conceded that it was solely responsible for the negligent surgery, which was also the case of the Claimant and of the original tortfeasor. This concession was described by Laws LJ in the Court of Appeal as “inevitable”. Baker J noted that if the Specific Rule existed, it would be surprising that Laws LJ did so just one month before Webb was decided. There was no suggestion in Rahman of gross negligence. However, Baker J noted that nor is Rahman a decision against the Specific Rule since neither the Claimant nor the NHS Trust took the point that the original tortfeasor was responsible for the damage caused by the surgery because the surgery was an appropriate response, negligently executed, that did not break the chain of causation.
As to the comment in Clerk & Lindsell, this, at least in the current edition, is based on the editors’ preference for Lord Reid’s dissenting view in Hogan v Bentinck West Hartley Collieries (Owners) Ltd [1949] 1 All ER 588. The majority of the House of Lords had held that amputation of the top joint of a thumb was not appropriate treatment for a work place injury and thus operated as a novus actus.
Baker J held that notwithstanding the apparently unqualified endorsement of the Specific Rule in Webb at [55], it was not applied by the Court of Appeal to decide that case. Rather, Henry LJ at [56] considered a range of factors, only one of which was that there had been negligence but not gross negligence. Further, he considered there is no logical justification or policy reason for creating a specific rule of law in the context of negligent medical intervention, and that a rule of law in terms of the Specific Rule is a recipe for litigation within litigation over when treatment otherwise proper in kind is so poorly executed as to become an inappropriate medical response.
Baker J held that the Specific Rule does not exist as a principle of law defining a necessary ingredient of a novus actus defence in the context of medical interventions. Accordingly, the judge below had misdirected himself. Further, the amended Defence did have a real prospect of success on the basis of the Defendant’s expert evidence. Baker J considered that the judge had reached an erroneous conclusion that there was no real prospect of satisfying the Specific Rule, because he wrongly considered that poor quality surgery cannot turn appropriate treatment into an inappropriate medical response. Exercising the discretion afresh, as it was agreed he should, Baker J gave permission for the amendment.
If Baker J is right, and the Specific Rule does not exist, the question remaining is what is the correct test to apply in deciding whether negligent medical treatment constitutes a novus actus? This decision offers no real guidance as it is limited only to determining that the amendment should have been permitted as having a real prospect of success.
In Rahman Laws LJ said “The law is that every tortfeasor should compensate the injured claimant in respect of that loss and damage for which he should justly be held responsible.” He continued that the real questions is “what is the damage for which the defendant under consideration should be held responsible. The nature of his duty (here, the common law duty of care) is relevant; causation, certainly will be relevant–but it will fall to be viewed, and in truth can only be understood, in light of the answer to the question: from what kind of harm was it the defendant’s duty to guard the claimant? … Novus actus interveniens, the eggshell skull rule, and (in the case of multiple torts) the concept of concurrent tortfeasors are all no more and no less than tools or mechanisms which the law has developed to articulate in practice the extent of any liable defendant’s responsibility for the loss and damage which the claimant has suffered“
Having expressed their support for Lord Reid’s dissenting view, the editors of Clerk & Lindsell continue “No precise or consistent test can be offered to define when the intervening conduct of a third party will constitute a novus actus interveniens sufficient to relieve the defendant of liability for his original wrongdoing. The question of the effect of a novus actus “can only be answered on a consideration of all the circumstances and, in particular, the quality of that later act or event” [per Lord Simonds, one of the majority, in Hogan, at 593]. Four issues need to be addressed. Was the intervening conduct of the third party such as to render the original wrongdoing merely a part of the history of events? Was the third party’s conduct either deliberate or wholly unreasonable? Was the intervention foreseeable? Is the conduct of the third party wholly independent of the defendant, i.e. does the defendant owe the claimant any responsibility for the conduct of the intervening third party? In practice, in most cases of novus actus more than one of the above issues will have to be considered together.”
Further authoritative guidance would be helpful, and it will be interesting to see whether there is any appeal against Baker J’s decision, or indeed against any final determination of the case. However, if the Specific Rule does not exist, both claimant and defendant personal injury practitioners are likely to want to give careful consideration to joining NHS Trusts to proceedings, meaning such Trusts may also expect to see an increase in clinical negligence claims.
About the Author
Ella Davis was called to the Bar in 2013. She undertakes work in the cross border field on behalf of both Claimants and Defendants. She has particular expertise in claims involving allegations of fundamental dishonesty and has a good deal of experience in conducting trials around the issues which arise from such allegations.
“No need to repeat”: Page v Expedia (unreported, 9th February 2023)
The Package Travel and Linked Travel Arrangements Regulations 2018 have been part of the cross-border landscape for quite some time. Despite this, there are many aspects of the Regulations which have not received judicial attention. Page v Expedia is a first-instance judgment which provides an indication of how a court examines Regulation 11 of the Package Travel Regulations and the obligations of package holiday providers. Regulation 11 states (insofar as is relevant):
(3) Paragraphs (4) to (11) apply where, before the start of the package, the organiser—
(a) is constrained by circumstances beyond the control of the organiser to alter significantly any of the main characteristics of the travel services specified in paragraphs 1 to 10 of Schedule 1;
(b) cannot fulfil the special requirements specified in paragraph 1 of Schedule 5; or
(c) proposes to increase the price of the package by more than 8% in accordance with regulation 10(4).
(4) The organiser must, without undue delay, inform the traveller in a clear, comprehensible and prominent manner on a durable medium, of—
(a) the proposed changes referred to in paragraph (3) and, where appropriate, in accordance with paragraph (7), their impact on the price of the package;
(b) a reasonable period within which the traveller must inform the organiser of the decision pursuant to paragraph (5);
(c) the consequences of the traveller’s failure to respond within the period referred to in sub-paragraph (b); and
(d) any substitute package, of an equivalent or higher quality, if possible, offered to the traveller and its price.
(5) The traveller may, within a reasonable period specified by the organiser—
(a) accept the proposed changes; or
(b) terminate the contract without paying a termination fee.
The Facts
On 14th December 2020, the Defendant agreed to supply a package holiday to the Claimant to Los Angeles between 9th and 24th June 2021. This price paid for this was £1,670.56. When the Claimant booked the holiday, he was directed to a travel advisory page where entry requirements and travel advice for the United States of America were provided. This indicated that, since 6th March 2020, British nationals were prohibited from entering the United States if they had been in the UK within the previous 14 days.
On 9th June 2021, the Claimant attempted to check in at London Heathrow Airport. He was denied boarding by the airline on account of the continuing travel restrictions.
The Issue
The Claimant admitted that he knew he could not travel at the point of booking. His case at trial was that the Defendant ought to have updated or warned him in June 2021 that the position had not changed. Had they done so, he would have avoided the loss.
At trial, the Defendant relied on the Covid-19 Passenger Charter. This was a government document providing information for travellers outlining their rights and responsibilities. This clearly stated that it was the passenger’s responsibility to check entry requirements for the country to which they were travelling.
Judgment
Deputy District Judge Morris dismissed the Claim. Regulations 11(3) and 11(4) of the 2018 Regulations provided that once the contract has been entered into, the Defendant was required to give the Claimant information once circumstances had changed. However, given that nothing had changed, the Defendant was under no obligation to warn the Claimant that he was not allowed to travel.
DDJ Morris went further and examined whether there could be a freestanding duty or obligation for the Defendant to warn the Claimant. She noted the existence of the Covid-19 Passenger Charter, and its clear focus on passengers’ responsibilities. Accordingly, there was no freestanding duty or obligation.
Commentary
There are two points which practitioners can draw from this judgment. First, it illustrates the importance of the Covid-19 Passenger Charter when bringing or defending such claims. As government guidance, it strongly informs the obligations of the travel service provider and will be of assistance to judges navigating this nascent area of law. Second, it indicates the difficulty of proving an obligation that goes beyond the confines of the Regulations. The merits of bringing such claims should focus on interpretation of the implied terms imposed by the Regulations, rather than attempting to create new duties.
About the Author
Anirudh Mandagere has a broad practice across all areas of chambers’ specialisms, acting for both claimants and defendants, and is an enthusiastic and valued member of the travel team. Before joining Deka Anirudh worked as a judicial assistant at the Court of Appeal and taught law at the London School of Economics.
Call: 2013
Call: 2019
