Am I the only one who thinks that the legal tests in clinical negligence are sometimes harder to understand than they should be?

The case law on my favourite topic – Bolam and other tests for breach of duty – is littered with confusion. And it strikes me that Material Contribution is too.

The But For test is, thankfully, beautifully simple and easy to understand. But what if your experts can’t tell whether the outcome would probably have been avoided or the same and you have to use the causation test of Material Contribution ?

The case of Davies v Frimley Health NHSFT 2021 EWHC 169 QB earlier this year is a recent example of the Court addressing both tests on causation in clinical negligence.

This is a strange read.

The issue on appeal to the Supreme Court was:

“If a child born with more than one disability would not have been born but for a doctor’s failure to advise of the risk of their being born with one of those disabilities, can the mother sue the doctor for the costs associated with all of the child’s disabilities, or only for the costs associated with the disability the doctor was consulted on?”

The High Court’s answer was that a claim lies for all of the costs. That was reversed on appeal. The Supreme Court upheld the Court of Appeal. For the underlying facts, see the brief account at the end of this blog.

A very common scenario in clinical negligence and personal injury claims is that the claimant’s negligent injury occurs on a background of pre-existing disability – how does the court assess the damages for care in the claim?

Examples of pre-existing disability in my own cases have included-

• Hydrocephalus;
• Spina bifida;
• Significant learning disability;
• Partial spinal cord injury at C5 resulting in tetraparesis.

The cases of Sklair and Reaney give some guidance as to the correct approach.

There has been a revolution in genetic testing over the past decade. Technological advances have greatly increased the scope and use of testing. Testing is now faster and cheaper.

This has meant that it has become easier to analyse a whole, or large sections of a genome in detail[1]. This innovation brings with it ethical challenges, most notably in terms of consent and disclosure to other family members who may be affected by information identified[2].

These developments are beginning to ripple out to clinical negligence litigation. As they do, the courts will be asked to conduct a sensitive balancing exercise between the Claimant’s Article 8 rights and the Article 6 rights of the Defendant to defend himself.

The much-anticipated judgment in Swift v Carpenter [2020] EWCA Civ 1295 provided a neat and just approach to the valuation of capital costs in accommodation damages claims. Helpfully the Court of Appeal provided an easy to apply formula for accommodation claims where claimants have longer life expectancies thereby providing much needed litigation certainty – and also substantially reducing potential expert costs in future cases. Whilst the most usual type of claims were addressed, the Court could not provide answers to all of the more complex capital accommodation claims which may come before trial judges in the years ahead.

Irwin LJ noted that the Court of Appeal’s guidance should not be regarded as a “straitjacket to be applied universally and rigidly”. One area in which the jacket may not fit is short life expectancy cases. The simple application of the Court’s reversionary interest formula to such claimants appears to be one area where the direct application of the guidance may be inappropriate. As stated by Irwin LJ:

“There may be cases where this guidance is inappropriate. However, for longer lives, during conditions of negative or low positive discount rates, and subject to particular circumstances, this guidance should be regarded as enduring.” [§210]