Shaw v Kovac & Ors

A negligent failure to provide information needed for a patient’s informed consent does not justify separate damages for infringement of personal autonomy. The duty protects autonomy within the traditional framework of negligence. Compensation lies in ordinary general damages for resulting pain, suffering and loss of amenity, which may include distress caused by awareness of the infringement.

Neither nominal, vindicatory nor conventional damages are additionally available. A claim that is in substance for loss of expectation of life in a personal injury action is barred by section 1 of the Administration of Justice Act 1982. Previous adverse judicial decisions involving a party do not, without more, establish apparent bias. The objective question is whether a fair-minded and informed observer would perceive a real possibility of bias.

An 86-year-old patient died following a trans-aortic valve implantation. His personal representative alleged that the defendants had negligently failed to explain the nature and risks of the procedure. The defendants conceded liability on the basis that the patient would not have undergone the operation if properly informed.

HHJ Platts, sitting as a High Court judge, assessed damages at £15,591.83, including £5,500 for pain, suffering and loss of amenity. He refused a further award for loss of life or infringement of personal autonomy. The claimant appealed, seeking £50,000 as a separate compensatory or conventional award.

The court also considered whether two members should recuse themselves because they had participated in earlier judicial review proceedings concerning the inquest into the patient’s death. The central issues were whether apparent bias arose and whether negligent failure to obtain informed consent supported damages beyond conventional compensation.

1. Appeal dismissed. The recusal application was also refused. Previous adverse decisions involving the appellant did not, without more, cause a fair-minded and informed observer to perceive a real possibility of bias. The earlier courts had reviewed the legality of the inquest rather than determined civil liability. Lack of informed consent had subsequently been conceded in the civil proceedings.

2. The duty to give information needed for informed consent operates within the traditional framework of negligence. It does not create a separate cause of action for invasion of autonomy. Such a cause of action had not been pleaded and was ultimately disclaimed on appeal. Negligence requires proof of damage and is not actionable per se, so no additional nominal damages could be awarded.

3. [2004] UKHL 41 and [2015] UKSC 11 did not establish a free-standing head of loss for infringement of autonomy. The former modified conventional causation principles where the injury was the very risk about which the patient should have been warned. The latter removed the Bolam approach from the assessment of the information required for informed consent. Their emphasis on autonomy explained the duty and standard of care; it did not create additional damages.

4. Ordinary general damages provide the appropriate compensation. They may include indignity, distress, humiliation, anger or suffering caused by awareness that personal autonomy was infringed. In this case substantial general damages had already been awarded. If the proposed £50,000 represented compensation for the patient’s lost years, it was in substance a claim for loss of expectation of life and was barred by section 1 of the Administration of Justice Act 1982.

5. The proposed award could not instead be characterised as vindicatory damages. The reasoning of the majority in [2011] UKSC 12 precluded an additional award merely to mark the infringement where compensatory damages and other established remedies sufficiently vindicated the right.

6. No conventional award should be created. The exceptional award in [2003] UKHL 52 arose where policy prevented recovery of losses otherwise available on ordinary causation principles. Here appropriate compensation was already available through general damages. A new award would lack a principled method of assessment and would have wide practical and financial implications, including potential claims after successful treatment or where the patient would still have consented.

1. Court of Appeal (Civil Division): By [2017] EWCA Civ 1028, unanimously dismissed the claimant’s appeal and refused the recusal application.
2. High Court: HHJ Platts assessed damages at £15,591.83, including £5,500 for pain, suffering and loss of amenity, and rejected a separate award for loss of life or infringement of autonomy.
3. High Court liability stage: Consent orders entered judgment for damages to be assessed against the defendants after liability for negligent failure to provide proper information was conceded.