Conan v Williams

In a clinical negligence claim based on events many years earlier, the claimant must prove the factual foundation of the alleged breach on the balance of probabilities. Genuine and detailed recollections may nevertheless be unreliable where the events occurred decades before trial. Independent evidence must be assessed for its actual probative value and should not be treated as establishing a fact merely because it is consistent with it.

Where the alleged breach is not proved, questions concerning the extent of liability for indivisible injury do not arise. If they do arise, the first-instance court must apply a binding Court of Appeal decision unless it can properly be distinguished.

The claimant, a protected party with disabilities associated with cerebral palsy, brought a clinical negligence claim against his former general practitioner. It was alleged that the defendant had negligently failed to recognise or investigate a possible premature rupture of the membranes when he saw the claimant’s mother on 29 July 1983.

The claimant also contended that, had the defendant been negligent, the negligence materially contributed to an unquantifiable reduction in the claimant’s disability and attracted liability for the whole injury. The central issues were whether fluid loss had occurred before the consultation and, if so, whether the defendant’s liability would extend beyond the quantifiable consequences of the alleged negligence.

1. Alleged breach. The claimant’s case depended on proving that fluid loss had occurred before the defendant saw his mother on 29 July 1983 and that this should have prompted recognition of possible membrane rupture. The court approached the evidence in accordance with Bull v Devon AHA [1993] 4 Med LR 117, recognising that the lapse of time principally affected the difficulty of proving disputed facts.
2. The witnesses were honest, but their recollections of events 26 years earlier had materially changed and conflicted. The differing uterine measurements, the hospital note referring to possible membrane rupture, the premature birth, and the described leakage were each consistent with rupture at some stage, but none established that rupture had occurred before the consultation.
3. The later obstetric consultation strongly supported the conclusion that there had been no substantial earlier loss of fluid. The court found that any substantial loss in the pub occurred after that consultation. Any earlier dampness was minimal and did not provide a sound basis for finding that the defendant should have suspected membrane rupture.
4. The likely explanation for the consultation was cystitis, from which the mother was in fact suffering. The essential factual foundation of the negligence allegation therefore failed. The defendant was not negligent and the claim failed.
5. Extent of liability. The issue was unnecessary to decide. The court nevertheless held that, if it had been necessary, it would have applied Bailey v Ministry of Defence [2009] 1 WLR 1052. The expert evidence treated the causal factors as making unquantifiable material contributions to an indivisible disability, so a reliable apportionment could not be made. The proposed division of liability was therefore rejected.