Hossack v Ministry Of Defence

Negligence requires a causal connection between the breach of duty and the claimant’s injury or loss. It is insufficient that the breach merely provided an opportunity for the injury to occur. Causation must be considered in the light of the scope of the duty undertaken. In delayed diagnosis cases, later disability may be recoverable where the delay caused deterioration, made an operation necessary, or reduced the prospects of successful treatment. However, an unconnected condition arising after the breach is not caused by it merely because timely treatment would have led to a different course of events. The distinction between causation and remoteness must be maintained.

The claimant, a soldier, developed chronic lower-leg problems during military service. The Ministry of Defence admitted negligence in failing to arrange a timely orthopaedic referral. The judge found that earlier referral would probably have led to the claimant being downgraded and leaving the Army, but that his condition had not worsened during the delay. An operation later performed was appropriate and not negligent. The claimant’s subsequent posterior tibial tendonitis had not been shown to result from the operation or its aftercare.

The judge awarded £5,525 for pain and suffering caused by the delayed decision but rejected a further claim of £100,000 for the claimant’s present disability. The appeal concerned whether the admitted breach caused that disability.

1. Appeal dismissed. The claimant was entitled to the damages awarded for the postponement of the decision to downgrade him, but he failed to establish that the breach caused his present disability.
2. The submission that the claimant would have avoided his present condition but for the negligent delay was rejected. The breach had to be causally connected with the condition, rather than merely providing the opportunity for it to develop. The court applied the reasoning in South Australian Asset Management Corporation v York Montague Ltd [1997] AC 191, including the distinction between a loss caused by the scope of the relevant duty and loss which would have occurred independently.
3. Causation had to be examined in the light of the scope of the duty. The duty was to arrange an earlier orthopaedic referral. The appropriate question was why the claimant suffered the injury or loss. If the answer did not connect the injury with the breach, causation was not established.
4. The court distinguished causation from remoteness. Whether the operation was a reasonably foreseeable consequence of the failure to refer or downgrade was unnecessary to the causation issue.
5. Delayed diagnosis can cause additional disability where the delay causes deterioration, makes an operation necessary, or prejudices the chance of successful treatment. In such cases, damages may require discounting to reflect the possibility that treatment would have failed even if undertaken promptly.
6. On the facts, the claimant’s condition was already chronic before the relevant delay. The operation was appropriate treatment and was not necessitated by deterioration caused by the delay. The evidence did not establish, on the balance of probabilities, that the operation or aftercare caused the tendonitis. The appeal was therefore dismissed.

• Court of Appeal (Civil Division): Appeal from the judgment of Mitchell J dated 31 March 1999. Appeal dismissed.