Chester v Afshar

Chester v Afshar

Introduction

In its decision in Chester v Afshar?1 a 3:2 majority of the House of Lords held that the scope of a doctor's duty to warn his patient of a non-negligible risk inherent in surgery extends to liability for personal injuries sustained by the patient as a result of the actuation of such risk. Where the warning required by the duty is not given? the patient may claim in damages for the injuries sustained? even although? on normal causal principles? she cannot show that she would not have undertaken the surgery at some later date had the warning been given. The course adopted by their Lordships is one which had already been charted by the High Court of Australia in Chappel v Hart?2 a decision to which the majority of the Judicial Committee made extensive reference.

This result may cause consternation in some circles? particularly medical ones? although it is one for which there has been advocacy from leading legal academics.3 Opposition is likely to centre upon concerns about the alleged lack of a causal connection between the doctor's breach of duty and the injuries suffered by the patient? concerns which were given primacy by the minority. If Miss Chester was unable to prove on the balance of probabilities that she would not have had the surgery on being warned of the risks of the injury (in this case? a condition known as cauda equine syndrome? "CES" for short)? then she could not prove that but for the doctor's failure to warn she would not have been in the same position.I wish to argue that the decision reached in Chester v Afshar is not explicable primarily by reference to causation at all.4 Rather? a proper explanation of the decision lies in the formulation given by the majority of the scope of the duty of care undertaken by the doctor towards his patient. Because the majority defined the scope of the duty as extending to injuries which were encompassed within the very risk of which the doctor was required to warn? difficulties with the causal connection between breach of the duty and the harm ensuing were thereby overcome at the duty level. The result was that the majority felt it unnecessary to explain the precise causal connection in anything other than the vaguest terms? and certainly without the need to have recourse to any of the traditional tests of causation-in-fact.5 The explanation of the decision thus lies in a normative conclusion of their Lordships (the doctor ought to be liable for this injury) rather than in a causative one (the doctor caused this injury).

Analysis

A number of duties of care are imposed upon doctors in relation to their patients? most obviously the duty carefully to diagnose and treat patients' medical complaints. There is? more to our purposes here? a duty to warn a patient who is contemplating a surgical procedure of any non-negligible risks attendant upon such procedure.6 The question of what foreseeable consequences should fall within the scope ...