Medical Negligence as a novus actus interveniens

To paraphrase Lady Bracknell, to pay for one catastrophic injury may be regarded as a misfortune; to pay for the consequences of subsequent negligent medical treatment looks like carelessness. All personal injury practitioners will be familiar with a variant on this theme – the man involved in a road traffic accident who suffers a spinal cord injury and is then dropped from a height onto his head during hoist transfer; the woman subjected to negligently performed cosmetic surgery who is then misdiagnosed and who develops a life altering condition as a result; the child suffering an avoidable allergic reaction who is not treated timeously (all real cases referred to the authors in the last six months).

To what extent is a tortfeasor liable for the consequences of negligent medical treatment, the need for which only arose out of the original tort? In the case of our first example, should the negligent driver have to compensate the claimant for his head injury as well as his spinal cord injury? On a strict ‘but for’ analysis, the head injury would not have occurred if it had not been for the car accident, and the medical intervention was foreseeable along with presumably the possibility of the Claimant being placed precariously in a hoist. On the other hand, why should road traffic or public liability insurers (or, in uninsured cases, private individuals) pay for the consequences of someone else’s negligence?

Webb v Barclays Bank Plc, Portsmouth NHS Trust [2002] PIQR P8

The Court of Appeal considered these questions in Webb v Barclays Bank Plc, Portsmouth Hospitals NHS Trust [2002] PIQR P8. In that case the Claimant suffered a minor fall at work which caused her left knee to become grossly unstable. After some attempts at alternative treatment, her treating consultant told her that the only viable option was for her to undergo above-knee amputation of the left leg. When she sued her employer, she discovered for the first time that other surgical and non-surgical options had been available to her; the Defendant’s medicolegal expert considered that these would have been preferable. Having obtained medical evidence the bank therefore pleaded an amended defence to the effect that the amputation constituted a break in the chain of causation de-linking the original accident from the Claimant’s permanent, life altered, condition. The bank subsequently settled her claim, but sought a contribution from the NHS Trust responsible under the Civil Liability (Contribution) Act 1978.

The Court of Appeal found that the advice given to the Claimant by her treating consultant had been negligent in all the circumstances, and that had she been properly advised she would not have consented to undergo amputation. It went on to consider whether the employer’s liability to her was terminated by the intervening negligence of the consultant who in fact made her injury worse, holding:

“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.”…

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:

(a) the original wrong-doing remained a causative force, as it had increased the vulnerability of the claimant and reduced the mobility of the claimant over and above the effect of the amputation;

(b) the medical intervention was plainly foreseeable, and it was also foreseeable that the claimant’s pre-existing vulnerability would impose its own risks;

(c) given the doctor’s conduct was negligent, but was not grossly negligent, and given the findings expressed at (a) and (b) it would not be just and equitable, nor in keeping with the philosophy of the 1978 Act for the wrongdoer to be given, in these circumstances, a shield against (i) being liable to the claimant for any part of the amputation damages; and (ii) being liable to make such contribution to the Trust’s amputation damages as was just and equitable.

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.”

As a result, the two Defendants were liable for the same damage, the claim for contribution succeeded, and the bank recovered from the Trust 75% of the damage caused by the amputation.

More generally, practitioners have taken the decision as authority for the proposition that for medical treatment to amount to a break in the chain of causation, the treatment must not only be negligently provided, but grossly negligent. If mere negligence had been enough, the bank would not have been liable to Mrs Webb for the damage arising from the amputation, and it could not, therefore, have recovered a contribution from the Trust in relation to its settlement with her because both defendants would not have been liable for the same damage under the 1978 Act.

This was the generally accepted position prior to a recent decision of Baker J; it is now, perhaps, rather more open to question.

Jenkinson v Hertfordshire County Council [2023] EWHC 872 (KB)

Mr Jenkinson fractured his right ankle as a result of a defect in the Defendant Council’s highway; the Council admitted liability for the accident and the claim proceeded on a quantum only basis. The orthopaedic expert subsequently instructed on behalf of the Council, however, opined that the surgery the Claimant had undergone had been negligently performed. The Defendant wished to amend its Defence to join the responsible Trust to proceedings, but was refused permission to do so, and appealed that decision (as an aside, the procedural history of the case is ample illustration of the maxim more haste, less speed, and should provide a salutary lesson to case management judges not to place perceived efficiency above justice).

At first instance, the District Judge refused permission for the Council to join the Trust on the orthodox basis (derived from Webb) that:

“…in cases where alleged negligent medical treatment is given to address injuries sustained as a result of an earlier tort, 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…”

He held that there was no real prospect of the Council showing that the Trust’s negligence was gross within that definition. The Council appealed on the basis that Webb establishes no such rule.

Baker J allowed the appeal. He, like the Court of Appeal in Webb, referred to Clerk & Lindsell on Torts:

‘Clerk & Lindsell has it that: “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.” By a footnote to the end of that paragraph, the Editors note that it was considered at length by Aikens LJ in Chubb Fire Ltd v Vicar of Spalding [2010] EWCA Civ 981, who concluded that “the ultimate question is: what is the extent of the loss for which a defendant ought fairly or reasonably or justly to be held liable”’.

Baker J did not consider that Webb is authority for the proposition that only gross negligence on the part of treating doctors can amount to a novus actus interveniens; whether or not medical treatment breaks the chain of causation will be highly fact-sensitive and will depend on all the circumstances of the case, including the nature and extent of the negligence and its foreseeability on the part of the tortfeasor.

Conclusion

Baker J’s decision has the advantage that it allows trial judges the ability to do justice between claimants, tortfeasors and medical practitioners. On the other hand, it may give rise to some uncertainty as to whether treatment providers should be joined to otherwise straightforward claims for personal injury. Although as a result of qualified one-way costs shifting in many cases doing so is relatively low risk for claimants, for those advising defendants the choice is a more difficult one. It will be interesting to see whether Jenkinson leads to an increase in claims for clinical negligence – and what comes of Mr Jenkinson’s case against the Council, and of the Council’s case against the Trust.

This article was first published in PI Focus, March 2024.