Oliver v Williams

In a clinical negligence claim, a claimant must prove on the balance of probabilities that the breach caused, or materially contributed to, a measurable loss. Damages are not recoverable merely for a loss of chance. General biological plausibility or evidence that a different treatment outcome might have been better is insufficient without evidence quantifying the difference in the individual case. Where a breach materially contributes to a recognisable psychiatric disorder, the court may apportion damages between injury caused by the breach and injury that would have occurred in any event.

The claimant alleged that her general practitioner failed to tell her that an urgent hospital referral had been made after consultations in December 2006. The referral was not received, and ovarian cancer was diagnosed in July 2007. She claimed damages for delayed surgery, reduced life expectancy, pain and suffering, psychiatric injury and loss of earnings.

The court found that the claimant had not been told of the referral. It then considered whether the delay caused a measurable reduction in life expectancy, whether it caused compensable psychiatric injury, and whether it caused loss of earnings.

1. Breach and delay. The defendant had failed to tell the claimant that an urgent referral had been or was going to be made. Had she known, she would probably have obtained an appointment by early January 2007, leading to surgery by early February rather than July. The breach therefore caused a delay of about five and a half months.
2. Life expectancy. The medical evidence established in general terms that a smaller volume of residual cancerous tissue improved prognosis. It did not establish the amount of tissue that would have remained after earlier surgery, or provide reliable evidence of the effect of that difference on this claimant’s life expectancy. The claimant therefore failed to prove a measurable reduction in life expectancy on the balance of probabilities. Following Gregg v Scott [2005] UKHL 5, damages could not be awarded for a mere loss of chance. The approach in Tahir v Haringey Health Authority [1998] Lloyd’s LR (Med) 105 was applied: the breach had to cause, or materially contribute to, a measurable loss. JD v Mather [2012] EWHC 3063 (QB) was distinguished because it involved a change in disease staging supported by good statistical evidence.
3. Other loss. The claimant recovered £2,500 for pain and suffering during the avoidable delay. She had developed a recognisable psychiatric disorder, but most of it would have occurred independently of the breach. The breach materially contributed to her anger, loss of control and distress, warranting £5,000. The loss-of-earnings claim failed because the evidence did not establish that psychiatric injury prevented full-time work in May 2008, and the claimed longer remission was not proved.
4. Judgment was entered for the claimant in the sum of £7,500, with appropriate interest from commencement of proceedings.