Younas v Okeahialam

In a clinical-negligence claim, causation requires proof, on the balance of probabilities, of each material link in the hypothetical chain between breach and injury. Where a defendant’s breach has deprived the claimant of the best evidence, the court may adopt a benevolent approach to the claimant’s evidence and resolve an evidential range in the claimant’s favour. That approach does not reverse the burden of proof or permit the court to assume facts merely because they are necessary to success.

In reconstructing a missed medical diagnosis, the court must distinguish clinical diagnosis from legal causation. It must assess the particular patient, the hypothetical timing of investigations, relevant hindsight and the totality of the evidence. On the facts, failure to refer an abnormal ECG caused the claimant’s subsequent collapse and spinal injury.

The claimant suffered a serious spinal cord injury when he fainted in a car park on 24 January 2014. The faint was caused by intermittent atrioventricular block, which was later diagnosed and treated with a pacemaker.

The defendant accepted that she negligently failed to refer the claimant to hospital after an abnormal ECG on 21 October 2013. The issue was whether, if referral had occurred, the claimant’s condition would probably have been diagnosed and treated before the accident. The central question was whether the hypothetical cardiology process, including ambulatory ECG monitoring, would probably have detected the condition in time.

1. Causation and burden of proof. The claimant had to prove, on the balance of probabilities, each material link between the negligent failure to refer and the injury. The necessary links were the existence of intermittent AV block, its diagnosis and treatment within the relevant period, and the consequent avoidance of the collapse.
2. Claimant benevolence. Under Keefe v Isle of Man Steam Packet Co [2010] EWCA Civ 683 and the guidance discussed in JAH v Dr Matthew Burne & Ors [2018] EWHC 3461 (QB), the court could judge the claimant’s evidence benevolently where the defendant’s breach had deprived the court of the best evidence. This did not reverse the burden of proof. The claimant still had to establish the relevant probability and could not simply assume the fastest possible diagnostic timetable.
3. Assessment of the medical evidence. The court found that the claimant probably had intermittent AV block from August 2013, based principally on his evidence of a near-fainting episode, considered in the context of the medical records, later episodes and expert evidence. A referral would probably have led to cardiology assessment, detailed history-taking and ambulatory ECG monitoring. The court accepted favourable points within evidential ranges where the evidence established the range, but did not disregard evidence adverse to the claimant.
4. Individualised legal causation. The probability that a 72-hour ECG would detect intermittent AV block had to be assessed for this claimant in his particular circumstances, rather than by asking only whether such testing generally diagnoses the condition. The court considered the proximity of the hypothetical test to the later syncopal episode, the existing bifascicular block and the pattern of subsequent intermittence. Statistical and epidemiological material required caution, as discussed in Sienkiewicz v Greif (UK) Ltd [2011] 2 AC 229.
5. The court concluded that the ambulatory ECG would probably have detected the intermittent AV block and that treatment with a pacemaker would probably have begun before 24 January 2014. The defendant’s negligence therefore caused the claimant’s collapse and resulting spinal cord injury. Judgment was for the claimant on causation.

First-instance decision of the High Court (Queen’s Bench Division). No prior appellate decision is stated in the judgment.