Thompson v Bradford

In medical negligence, a breach is actionable only if the injury falls within a risk against which the doctor’s duty required protection. Foreseeability asks what consequences a competent practitioner could reasonably anticipate from the alleged failure.

Failure to explain that an unusual abscess might require surgery was not a relevant breach where no competent doctor could foresee that the omission would cause, or increase the risk of, vaccine-associated poliomyelitis. A competent GP could advise vaccination where the child had a local infection, rather than an acute illness or systemic disturbance, and no recognised contraindication existed. The appeal was allowed and the cross-appeal dismissed.

This was an appeal by Dr Bradford from Wilkie J’s judgment of 3 November 2004. The judge held that Dr Bradford properly advised that vaccination could proceed, but had been at fault in failing to explain that the child’s recurrent perianal abscess was unusual and might require surgery. He found that the parents would have postponed vaccination and that the child contracted vaccine-associated poliomyelitis through the abscess wound.

The appellant challenged breach, factual causation and legal causation. The child cross-appealed the finding that the advice to proceed was not negligent. The central issue was whether either alleged failure was a relevant breach of duty for the purposes of the injury claimed.

1. Disposition. The Court of Appeal allowed Dr Bradford’s appeal and dismissed the cross-appeal. Lords Justice Jonathan Parker and Sir Christopher Staughton agreed with Waller LJ. Since there was no relevant breach of duty, the factual causation issues did not arise.
2. Relevant breach and foreseeability. Waller LJ adopted the reasoning in Brown v Lewisham and North Southwark Health Authority [1999] Lloyds Reports Medical 110 at 117, observing that although the passage was strictly obiter it accurately reflected the law. Medical liability is controlled by foreseeability. The relevant breach must concern a risk against which the doctor’s duty required protection, and the injury must fall within that risk.
3. Even assuming that Dr Bradford should have advised postponement or explained the unusual abscess and possible surgery, no competent GP could have foreseen VAPP, or an increased risk of VAPP, as a consequence. The foreseeable consequences were limited to discomfort from surgery occurring alongside a vaccine reaction, or a possibility that vaccination would fail to immunise. The judge therefore erred by finding fault and proceeding directly to factual causation.
4. Cross-appeal. The trial finding that a reasonably competent GP could regard the abscess as a local infection rather than an acute illness or systemic disturbance could not be challenged. It followed that Dr Bradford could reasonably conclude that there was no contraindication to immunisation under the Green Book and advise vaccination to proceed.
5. Waller LJ expressed serious doubts about whether the parents would in fact have postponed vaccination, but the issue did not arise for decision. The court also declined to review the medical evidence on whether the surgical wound caused VAPP, or to express a view on whether the Green Book should be amended, leaving that question to experts.

• Court of Appeal (Civil Division): [2005] EWCA Civ 1439; appeal allowed and cross-appeal dismissed.
• Queen’s Bench Division, High Court of Justice: Wilkie J, judgment dated 3 November 2004; held that the advice to proceed with vaccination was proper, but found fault in the failure to provide information and held Dr Bradford liable for the resulting injury.