MR DANIEL WATTS v NORTH BRISTOL NHS TRUST

A claimant alleging inadequate consent must prove, on the balance of probabilities, what decision he would have made if properly advised. The assessment is necessarily hypothetical. Smith v Barking, Havering and Brentwood Health Authority does not impose an additional hurdle, but appropriately cautions courts when assessing evidence given after the adverse outcome is known.

An appellate court may interfere with a factual finding only where it is plainly wrong, meaning that no reasonable judge could have reached it. In assessing causation, the claimant must prove that the alternative treatment would probably have produced a better outcome, not merely that the treatment actually given caused some continuing symptoms.

Mr Daniel Watts appealed against the dismissal of his clinical negligence claim by HHJ Ralton in the County Court at Bristol. He alleged that a spinal surgeon had failed to advise him adequately about microdiscectomy as an alternative to spinal fusion.

The trial judge found a breach of duty in failing to present a meaningful choice, but held that Mr Watts had not proved that he would probably have chosen microdiscectomy. The judge also held that, apart from short-term effects, Mr Watts had not proved that microdiscectomy would have produced a better outcome.

The appeal concerned whether those findings were plainly wrong or inadequately reasoned.

1. Ground 1 dismissed. The trial judge was entitled to require Mr Watts to prove, on the balance of probabilities, that he would have chosen microdiscectomy in the properly defined hypothetical situation.
2. Smith v Barking, Havering and Brentwood Health Authority did not impose an additional evidential hurdle. It was a reminder that evidence about a hypothetical choice, given after the adverse outcome is known, should be approached with caution. Objective factors may carry particular weight, although the claimant’s subjective evidence remains relevant.
3. The trial judge was entitled to find that the choice was not obvious. Fusion offered a materially greater prospect of relieving back pain, addressed spinal tilt and instability, and was reasonably recommended by the surgeon. Microdiscectomy had advantages, including shorter recovery and preservation of future options, but those advantages did not compel the conclusion that Mr Watts would have selected it.
4. The trial judge’s reference to a lack of reasoning was properly understood as a failure by Mr Watts to engage with the surgeon’s strong recommendation and with the different benefits of the procedures. His inability in cross-examination to answer the clarified hypothetical question further weakened his evidence.
5. The court nevertheless considered ground 2. The relevant causation question was whether microdiscectomy would probably have produced a better outcome than fusion. Evidence that fusion caused some continuing or worsened pain was insufficient without evidence establishing the likely outcome after microdiscectomy.
6. The trial judge’s reasoning on ground 2 was insufficient. He did not adequately address the agreed evidence that fusion had made Mr Watts worse, or explain how equivalent deterioration after microdiscectomy could be inferred despite the estimated 5–10% risk of deterioration after that procedure. The conclusion on ground 2 would therefore not have been upheld if ground 1 had succeeded.
7. Because ground 1 failed, the appeal was dismissed.

• High Court (Queen's Bench Division): The appeal from the County Court at Bristol was dismissed.
• County Court at Bristol: HHJ Ralton dismissed the clinical negligence claim on 6 December 2019, despite finding a breach of the duty to advise about the reasonable alternative of microdiscectomy.