Hall v Thomas & Ors

A physiotherapist is judged by the standard of the reasonably competent physiotherapist. Evidence that rehabilitation activities may have caused or contributed to injury does not, without more, establish breach of duty. Functional observation, including assessment of balance, co-ordination, agility and control, may properly be preferred to isometric strength testing. Failure to keep adequate records may justify critical scrutiny and adverse inferences, but it does not reverse the burden of proof. Where negligent delay contributes to damage, recovery remains subject to proof on the balance of probabilities. A lost possibility of a better outcome is not actionable damage.

The claimant, a professional football scholar, brought negligence claims arising from serious injuries to his left knee. He alleged that the second defendant, a physiotherapist employed by the third defendant, delivered rehabilitation which fell below the standard of a reasonably competent physiotherapist. He also alleged that the first defendant, the club doctor, negligently delayed treatment for a Staphylococcus aureus infection following surgery.

The first defendant admitted that treatment should have begun two days earlier and accepted liability for damage caused by that delay. The trial therefore concerned breach and causation against the second and third defendants, and the extent of damage attributable to the admitted breach by the first defendant.

1. Claim against the second and third defendants. The claimant failed to establish that the rehabilitation fell below the standard of the reasonably competent physiotherapist. The rehabilitation protocol was acceptable in principle, and the evidence showed no red flags requiring the programme to be stopped or materially altered. Reviews by the treating orthopaedic surgeon and Lilleshall professionals generally endorsed the claimant’s progress. When concerns arose, the physiotherapist responded appropriately, including by referring the claimant for review and temporarily reducing activity.
2. Isometric testing was not an essential part of ACL rehabilitation. It supplied additional evidence only. The proper assessment for progression involved experience, observation and functional ability, including balance, co-ordination, agility, joint control and the claimant’s response to activity. The evidence did not establish that a reasonably competent physiotherapist could not permit the activities undertaken with the recorded quadriceps deficits, or that retesting to a specified strength threshold was mandatory.
3. The inadequate records were a proper matter for critical evaluation, but they did not themselves establish breach. The principle in Keefe v The Isle of Man Steam Packet Company [2010] EWCA Civ 683 did not require adverse findings where other evidence permitted the court to test the physiotherapist’s account. The claim against the second and third defendants therefore failed.
4. Claim against the first defendant. On the balance of probabilities, treatment on 17 September 2007 would have avoided 50 per cent of the septic-arthritis damage. However, the claimant failed to prove that the meniscal repair would have succeeded absent the negligence. The orthopaedic evidence established that, after 48 hours of untreated infection, the repair was probably destined to fail. The consequent loss was therefore no more than a possibility of a better outcome, which was not actionable under Gregg v Scott [2005] UKHL 2.
5. The claimant accordingly succeeded against the first defendant to the extent of the causation findings, with the precise valuation of the attributable damage left for the quantum stage. The claims against the second and third defendants were dismissed. Consequential orders and costs were left for further submissions.

Not stated in the judgment.