Jurisprudential Analysis

Jurisprudential Analysis

INTRODUCTION

In a Land Mark Judgment the House of Lords have varied the conventional approach to causation in negligence claims and allowed a Claimant to recover compensation even though on a traditional interpretation of the law of causation the Defendant's negligence did not “cause” the Claimant any damage.

FACTS OF THE CASE

Miss Chester had a long history of back pain which was treated by a consultant rheumatologist, Dr Wright with a series of pain relieving injections. However, Miss Chester's pain persisted and became more acute. She was eventually referred for an MRI scan which showed disc protrusion in the lower spine. Dr Wright advised her that she may now need surgery and referred her to Mr Afshar a neurosurgeon, the Defendant in these proceedings. Miss Chester saw Mr Afshar on 18 November 1994, he examined her and then spent about 30 minutes discussing her condition and surgical options. Miss Chester says she made it clear to Dr Wright that she wished to avoid surgery if possible and this had been communicated to Mr Afshar in his letter of referral from. There was a dispute between Miss Chester and Mr Afshar as to what was said at the consultation. Mr Afshar said that he discussed all of the surgical risks importantly including a risk of disturbance to the cauda equina nerve route which could mean paralysis. Miss Chester disputed this version of events, she said that she pressed Mr Afshar about risks and told him that she was concerned about surgery as she had heard a lot of horror stories. She said that paralysis was definitely not mentioned by Mr Afshar, the only reply she got from him when she raised her concerns was a throw away line that he had not crippled anyone yet. Miss Chester went ahead with the surgery, 3 days later because she said because Mr Afshar made it all sound so simple. She suffered nerve damage and paralysis. A second operation, a laminectomy was carried out but with no effect.

FIRST TRIAL

At the first trial Miss Chester argued that Mr Afshar had negligently performed the operation and failed to properly counsel her. It was common ground at Trial that it was Mr Afshar's duty to warn Miss Chester of the risks of damage involved in the surgery including paralysis. The next question that the Trial Judge had to consider was whether or not Mr Afshar had discharged his duties to Miss Chester by giving her adequate warning. The Trial Judge found for Miss Chester on this point and said:- “In these circumstances I do not find it improbable that, in an attempt to reassure, he deflected her enquiries by answering them in the light hearted terms which she has described - and which he accepts that he may have used at some stage. However, understandable such a response may have been in psychological terms, it was not an adequate response in legal terms, as Lord Templeman indicated in ...