Amina Shaheen & Anor v Dr Joanna Daish

In a clinical negligence claim, contributory negligence requires proof that the claimant understood the significance of failing to follow the relevant medical advice. The defendant bears that burden. The circumstances in which contributory negligence arises in such claims are rare. A claimant’s failure to attend a review or investigation will not ordinarily be negligent where the claimant was not informed of the investigation or its significance. On the facts, the court found that the defendant had failed to explain the need for a chest x-ray, that the deceased would have attended had he been informed, and that he was not contributorily negligent.

The claim was brought by the wife and son of the deceased against his general practitioner. The claimants alleged that, at an appointment on 11 February 2019, the defendant requested a chest x-ray but failed to tell the deceased that it had been requested or that he needed to attend a walk-in radiology department.

The court tried three preliminary issues: whether the defendant had failed to provide that information; whether the deceased would have attended for the x-ray if informed; and whether he was contributorily negligent. Causation and quantum were left for a later hearing.

1. Findings on breach and counterfactual attendance. The court found, on the balance of probabilities, that the defendant failed to tell the deceased that a chest x-ray was required or explain the process for obtaining it. Relevant factors included the absence of any record of such a discussion, the fact that the x-ray request appeared to have been an afterthought, and the deceased’s concern about his health and prior experience of following up requested blood tests.
2. The court also found that the deceased would probably have attended for the x-ray had he been informed. He was worried about his health and would have understood that the investigation was intended to exclude serious pathology, including cancer.
3. Contributory negligence. The defendant bore the burden of proving contributory negligence. The court considered the observation in Dalton v Southend University Hospital NHS Foundation Trust [2019] EWHC 832 that such claims in clinical negligence cases are rare.
4. Pidgeon v Doncaster Royal Infirmary and Montagu Hospital NHS Trust [2002] Lloyd’s Rep Med 130 and Sims v MacLennan [2015] EWHC 2739 (QB) were distinguishable. In each, there was evidence that the claimant understood the significance of failing to follow medical advice. That evidence was absent here. Without such understanding, it was not unreasonable for the deceased, particularly if feeling better, not to attend the relevant appointments.
5. The preliminary issues were therefore decided in favour of the claimants: breach was established; the deceased would have attended for the x-ray; and he was not contributorily negligent.