Oakes v Neininger & Ors

In a clinical negligence claim, causation must be proved on the balance of probabilities. Where liability depends on what would have happened if appropriate advice or treatment had been given, the court must assess the hypothetical sequence of events by reference to the evidence and ordinary probability.

Loss of bladder control alone does not necessarily establish complete cauda equina syndrome with retention. Painless urinary retention is also required. Where surgery before that stage would probably have avoided the claimant’s permanent disabilities, the breaches caused those disabilities. A mere chance that earlier surgery after complete syndrome had developed would have improved the outcome is insufficient: measurable damage must be proved.

The claimant developed cauda equina syndrome after consultations with his general practitioners and attendances by two ambulance crews. He alleged that failures to warn him about warning symptoms, arrange hospital admission and require urgent specialist treatment delayed decompression surgery.

Breach of duty was established against Dr Neininger, Dr Brown and Greater Manchester Ambulance Service in respect of the second ambulance attendance. The claim against the first ambulance crew failed because it was not proved that numbness or pins and needles had been reported. The central causation issues were when the claimant progressed from incomplete cauda equina syndrome to complete syndrome with retention, whether earlier surgery would probably have occurred absent the breaches, and whether earlier surgery would have prevented or reduced the permanent consequences.

1. Liability. Dr Neininger was in breach because the claimant had reported pain in both legs and should have been warned about the symptoms of cauda equina syndrome and the need for immediate action. Dr Brown’s breach and the second ambulance crew’s breach were admitted. The claim against the first crew was dismissed because the evidence did not establish that numbness or pins and needles had been communicated to them.
2. Meaning of complete syndrome. The court preferred the evidence that complete cauda equina syndrome with retention required painless urinary retention, not merely loss of bladder control. Painful retention indicated that relevant nerves remained functional and that decompression still had a realistic prospect of improving the outcome.
3. Causation. The court reconstructed the likely events absent each breach. On the balance of probabilities, the claimant would have reached hospital, been assessed, transferred to the specialist unit and operated upon while still at the incomplete-syndrome stage. Earlier surgery would probably have avoided the serious bladder, bowel, mobility, gait and neuropathic consequences, although normal sexual function would probably not have been restored.
4. The claimant bore the burden of proving that the breaches caused the injury. The court applied the requirement for measurable damage. It rejected the claim that earlier surgery after complete syndrome had developed probably would have improved the outcome, because the evidence established at most a chance of some improvement.
5. The claim against Drs Neininger and Brown and GMAS therefore succeeded in negligence. The claimant was awarded damages for the injuries and consequences caused by the delayed surgery, including the additional pain and discomfort caused by the delay.