Davenport v Farrow

In a personal injury claim based on alleged negligent failure to respond to symptoms, the claimant must prove each factual link necessary to establish causation on the balance of probabilities. Where liability depends on the injury having occurred during a particular period, the claimant must first prove that timing. If that essential fact is not established, subsequent issues concerning breach, awareness, appropriate investigation and the counterfactual medical outcome do not arise. The court must assess the whole evidential picture, including contemporaneous records, expert evidence, medical history, symptoms and the claimant’s subsequent ability to function. No single evidential feature is necessarily determinative.

The claimant, a promising elite athlete, claimed damages against his former athletics coach for personal injury and consequential loss. The claim was advanced in negligence, breach of contract and breach of statutory duty. He alleged that bilateral L5 vertebral stress fractures developed during intensive training in October or November 2004, that he reported consequential back pain to the defendant, and that the defendant failed to arrange appropriate investigation and treatment.

The defendant disputed both the timing of the fractures and the alleged complaints. Liability was ordered to be tried as a preliminary issue. The central issue was whether the claimant had proved that the fractures occurred in October or November 2004, so that the alleged failures could have caused the claimed injury and loss.

1. Claim dismissed. The claimant failed to prove, on the balance of probabilities, that the bilateral L5 vertebral stress fractures occurred in October or November 2004.
2. The claimant’s case depended on that timing. Unless it was established, the alleged failure to take complaints seriously, arrange investigation or advise medical assessment could not have caused the injury and loss claimed. The remaining issues therefore did not arise.
3. The court assessed the evidence as a whole. The claimant’s uncertainty about when significant symptoms began, the absence of contemporaneous reports of acute back pain, his continued high-level training and competition, and the earlier medical and treatment records weakened the case for an acute injury in late 2004.
4. The expert evidence was necessarily cautious. The scans could not accurately date the fractures, but their appearance was more consistent with longstanding spondylolyses and established non-union. The earlier history of intermittent back symptoms and the screening records supported that conclusion.
5. The court accepted that the claimant experienced fluctuating back pain and that he probably complained to the defendant, who treated the complaints as evidence of poor motivation. That finding did not establish that an acute stress fracture occurred in the period alleged. The failure to prove the essential timing issue was sufficient to defeat the claim.

The claim was issued on 26 October 2007. On 10 October 2008, District Judge Britton ordered that liability be tried as a preliminary issue. The High Court then determined the preliminary liability issue at first instance.