Webb v Barclays Bank Plc & Anor

In a personal-injury claim arising from negligent medical advice, causation is determined on the balance of probabilities. Damages are not awarded for a percentage chance of avoiding the injury where the claimant’s underlying claim is for personal injury.

A doctor’s specific consent defence fails where the consent resulted from negligent failure to investigate and explain relevant alternatives. The patient’s own evidence about what would have happened is not legally indispensable. Where negligent medical treatment follows an original tort, it will not ordinarily break causation if the treatment was foreseeable and was not grossly inappropriate.

The claimant was injured when she fell at her employer’s premises, aggravating a polio-affected knee. A hospital consultant later advised an above-knee amputation without adequately investigating the knee or alternative bracing. The amputation caused substantial further loss.

The employer settled the claimant’s personal-injury claim and pursued contribution proceedings against the hospital trust. Rougier J found negligence, but assessed causation as a 40 per cent lost chance. The Trust appealed. The Bank cross-appealed against the reduction of its recoverable contribution and the finding that the original negligence was displaced by the medical negligence.

The central issues were the proper test for causation, the effect of the claimant’s consent, whether the medical negligence broke the chain of causation, and the just and equitable allocation of responsibility under the Civil Liability (Contribution) Act 1978.

The Court allowed the Trust’s appeal on the loss-of-a-chance issue and allowed the Bank’s cross-appeal in part. The order of Rougier J was set aside in part and substituted.

1. Causation. The judge should have asked, on the balance of probabilities, whether Mrs Webb would have consented to amputation if properly advised. A personal-injury claimant cannot recover damages calculated as a percentage chance of avoiding the injury. The Court inferred that, given the claimant’s trust in Mr Jeffrey, the finality of amputation and the availability of bracing as a viable alternative, she would probably have declined amputation if properly advised.
2. Medical negligence and consent. The breach was not merely the performance of the operation. Mr Jeffrey failed to investigate the pathology, assess modern bracing and provide the information and encouragement necessary for a reasoned choice. Specific consent obtained in those circumstances did not absolve him from liability. The case concerned inadequate investigation and advice, rather than the general-warning issue considered in Sidaway v Board of Governors of Bethlem Royal Hospital, [1985] AC 871.
3. Patient evidence. The Court rejected the suggestion in Chappel v Hart, [1999] LLR 222, that a claim must fail unless the patient personally gives evidence about what would have happened with proper advice. Causation may be established by the evidence and inferences available to the court.
4. Intervening negligence. Following Rahman v Arearose Ltd, [2001] CA 351, and agreeing with the approach reported in Mahoney v Kruschick (Demolitions) Pty Ltd, (1985) 156 CLR 522, the Court held that later medical negligence does not automatically extinguish the original tort’s causative potency. The original fall remained causative, medical treatment was foreseeable, and the treatment was negligent but not grossly negligent.
5. Contribution. Under sections 1(1), 1(4) and 2(1) of the Civil Liability (Contribution) Act 1978, the settlement represented the same damage for contribution purposes. Responsibility was assessed as 25 per cent for the Bank and 75 per cent for the Trust. The Trust was ordered to pay £89,808.75 plus interest, together with 50 per cent of specified costs.

• Court of Appeal (Civil Division): Appeal from the decision of Mr Justice Rougier in contribution proceedings. The Trust’s appeal was allowed on causation and the Bank’s cross-appeal was allowed in part.
• High Court, Queen’s Bench Division: The Trust was ordered to make a contribution based on a 40 per cent lost-chance assessment.