Brint v Barking, Havering and Redbridge University Hospitals NHS Trust

A claimant alleging injury from medical treatment must prove breach of duty and causation on the balance of probabilities. Where a patient would have proceeded with treatment despite an adequate warning, the ordinary principles of causation apply; the exceptional approach in Chester v Afshar is confined to materially different facts. A radiographer’s decision to continue a scan may fall within reasonable clinical judgment where the patient is not suffering severe pain or distress and the scan serves an important diagnostic purpose. Unreliable evidence does not necessarily amount to dishonesty. Dishonesty requires the two-stage inquiry stated in Ivey v Genting Casinos Limited: ascertain the person’s actual belief as to the facts, then apply the objective standards of ordinary decent people.

The claimant alleged that an extravasation injury sustained during a contrast-enhanced CT scan caused disabling physical and psychological conditions. She alleged inadequate warnings, lack of consent, negligent conduct during the scan and inadequate aftercare. Liability, causation, quantum and, shortly before trial, fundamental dishonesty were disputed.

The High Court heard the evidence at a ten-day trial. The claimant’s account was rejected in material respects, while the defendant’s witnesses and the contemporaneous records were preferred. The central issues were whether the defendant had breached its duty, whether the injury caused the claimed disability, and whether the claimant had been fundamentally dishonest.

1. Liability. The claim failed. The court found that the claimant was warned of the risk of extravasation and that she consented to the cannulation and scan. The evidence did not establish that she withdrew consent or asked for the procedure to stop.
2. The decision to continue the scan was within the range of reasonable radiological management. The claimant was not in severe pain or distress when the scan began, the images showed that she remained substantially still, and the scan was clinically important because it investigated a potentially serious lesion. No breach of duty was established during the scan or in the aftercare.
3. Causation. The court considered, but did not need to decide, whether the claimant could succeed despite having agreed to proceed with the scan. It would have distinguished Chester v Afshar because the claimant would not have deferred the scan. The ordinary principles of causation would therefore have applied. The court’s findings also indicated that the later widespread disability was more probably attributable to pre-existing conditions and somatisation than to the extravasation.
4. Fundamental dishonesty. Applying the two-stage test in Ivey v Genting Casinos Limited, the court accepted that the claimant genuinely believed her evidence, although much of it was unreliable. Applying ordinary standards, it was not satisfied that she had been dishonest. The allegation was rejected.
5. The defendant’s late application to admit further evidence was refused. Admission after closing submissions was appropriate only in exceptional circumstances where the interests of justice required it; those circumstances were absent.