Introduction

1. 1. The approach to causation in clinical negligence cases has changed significantly over the past 20 years. In this article I consider whether as practitioners we are about to see another significant step forward or whether in practical terms little has changed.

Life before Bailey

1. 2. Before Bailey v. MoD, most clinical negligence practitioners thought that satisfying traditional ‘but for’ causation was a requirement for a successful claim. In a case where there had been a negligent five minute delay in delivering a baby but there would still have been an injury in an event a claim would be assumed to fail because the claimant could not prove how much damage had been caused by the breach of duty.

1. 3. Bailey was followed by a sea-change in practice with successful claims being brought in circumstances where it could be proved that the breach of duty had materially i.e. more than negligibly, contributed to the outcome. Many practitioners will recall some surprise at the decision in Bailey because we could immediately see that it would open the door to many more clinical negligence claims, particularly obstetric claims.  Would the door be shut again we wondered?  Academics meanwhile thought the only surprise was that material contribution had not been applied more quickly by practitioners to clinical negligence cases, seeing no basis for distinguishing clinical negligence cases from other personal injury claims.

See Paul v Royal Wolverhampton NHS Trust [2024] UKSC 1

The common law general rule is that “the law does not grant remedies for the effects – whether psychological, physical or financial – of the death or injury of another person.” (para 48)

Therefore, to establish a claim in the tort of negligence, a secondary victim needs to bring themself within the common law exception to the general rule.

Note about terms: at para 51, the primary/secondary victim distinction is said to be “difficult” and para 110 tells us that distinguishing between the two is often difficult/arbitrary. At para 105 we are reminded that there may, in fact, be no primary victim. That said, the terms “primary victim” and “secondary victim” remain current and are used by the Supreme Court throughout.

Case law relating to the exception to the general rule (Alcock,McLoughlin,Frost) was long understood as requiring a secondary victim to satisfy a number of threshold criteria.

Paul tells us that this was a misunderstanding. It does away with many of the criteria.

If the words sudden appreciation by sight or by sound of a shocking and horrifying event have been dinned into your ears, din them out.

1. It has taken the Supreme Court eight months to decide what to do about claims for psychiatric injury by secondary victims in clinical negligence cases. By a majority of six to one they have decided that nervous shock has no place in clinical negligence cases:

“We are not able to accept that the responsibilities of a medical practitioner, and the purposes for which care is provided, extend to protecting members of the patient’s close family from exposure to the traumatic experience of witnessing the death or manifestation of disease or injury in their relative. To impose such a responsibility on hospitals and doctors would go beyond what, in the current state of our society, is reasonably regarded as the nature and scope of their role.”

2. The Supreme Court found that Taylor v Novo was correctly decided (as before that was Taylor v Somerset HA).

1. This is another decision from Mr Justice Ritchie which, like CNZ v Bath, focusses on consent in an acute setting rather than the more leisurely context of the outpatient clinic.

2. The Claimant suffered spinal cord injury as a result of the penetration of her spinal cord by an anaesthetic needle.

3. An epidural had been recommended to provide post-operative pain relief following major bowel surgery. There were alternatives to an epidural, including patient controlled analgesia. The Claimant’s case was that it was a breach of duty to recommend epidural without giving any alternatives.

4. Doctors made a total of 10 attempts at placing the epidural. The first three attempts were made whilst the Claimant was conscious. There was no criticism of these attempts.

5. After these initial attempts the Claimant was distressed and in pain. Seven further attempts at placing the epidural were made after general anaesthesia had been induced.  The last four of these were by a second anaesthetist. One of the seven ‘unconscious’ attempts led to the spinal cord injury.

1. If you ever worry that you find it hard to get your head around material contribution then stop. You are not alone.

2. The Court of Appeal has now given welcome clarification and explained:
   1. That material contribution causation applies both to divisible and indivisible injuries.
   2. That this area of law “has been bedevilled by apparent inconsistency and imprecision at the highest level on multiple occasions.” [in other words it wasn’t just you and you weren’t imagining it].