Shawe -Lincoln v Neelakandan

Where negligent medical treatment is said to have caused injury by omission, the claimant retains the burden of proving causation on the balance of probabilities. The court must determine, as a question of fact, what would probably have happened if the omitted treatment had been provided. A claimant need prove measurable damage, not merely an increased risk.

Where a defendant’s breach has made relevant evidence unavailable, the court may assess the claimant’s evidence benevolently and the defendant’s evidence critically, and may draw an appropriate inference. This does not reverse the burden of proof. The inference is fact-sensitive and depends on matters including the proximity of the breach to the missing evidence and the other evidence available.

The claimant brought clinical negligence proceedings concerning the defendant’s failure, on an out-of-hours call, to attend and arrange urgent hospital admission after the claimant developed severe pain and reported numbness and inability to move his legs following an assault.

Negligent breach was admitted. The preliminary issues concerned whether the claimant would probably have suffered significant neurological deterioration before his actual admission, what treatment he would have received had he been admitted earlier, and the recovery he would probably have made.

1. Preliminary issues determined. The claimant failed to establish that significant neurological deterioration would probably have occurred during the critical period between the proposed admission on 27 November and the evening of 28 November 2005. The evidence supported an earlier deterioration on 26 November followed by a stable condition until the acute decline recorded after 22.05 on 28 November and before 00.30 on 29 November.
2. The burden of proving causation remained on the claimant. Applying Bolitho v City and Hackney Health Authority [1997] UKHL 46; [1998] AC 232, the issue was what would probably have happened had the omitted admission occurred. Under Tahir v Haringey Health Authority [1998] Lloyds Rep (Med) 104, proof of increased risk or a general worsening was insufficient; measurable damage had to be proved.
3. The approach in Keefe v The Isle of Man Steam Packet Company Limited [2010] EWCA Civ 683 concerned evidential weight and permissible inferences, not reversal of the burden of proof. It could apply to causation. Whether an inference should be drawn depended on the circumstances, including the connection between the breach and unavailable evidence, the other evidence, and evidence that could have been called.
4. No favourable inference was appropriate here. The claimant could have called doctors who examined him at the end of the critical period, and the evidence pointed against further deterioration. The court therefore found no significant deterioration during that period.
5. Had significant deterioration been observed after earlier admission, urgent neurological observations would have been made, specialist advice obtained from Frenchay, and emergency imaging arranged. On balance, the Frenchay spinal team would have recommended emergency surgery, to which the claimant would promptly have consented. If performed before the catastrophic decline, the operation would probably have resulted in an average Frankel D recovery rather than the average Frankel C condition actually sustained.