The case also clarifies the application of the ‘but for’ causation test following Chester v Afshar.

The claim centered round the risks associated with a total abdominal hysterectomy and bilateral salpingo-oophorectomy. Whilst the operation was successfully performed the Claimant developed a post-surgical, neuropathic pain. The Claimant argued she should have been made aware of the risk of developing a chronic, neuropathic pain. In addition the Claimant sought to argue, applying Montgomery and Chester v Afshar, that if it was a breach not to disclose the risk, then she should automatically recover damages where that undisclosed risk materialises, irrespective of whether she would still have gone ahead with surgery.

The Trust argued that in 2008, knowledge of chronic, neuropathic pain was not commonplace and was not well-understood by gynaecologists, a view that was shared by both parties’ experts. Doctors could therefore not be under a duty to warn of a risk they were not aware of. The Trust also argued the Claimant’s interpretation of Chester v Afshar amounted to an unwarranted wholesale disapplication of conventional causation principles.

Following a hearing on 17 May 2018, the Court of Appeal unanimously dismissed the Claimant’s appeal and found the trial judge was correct in his application of the test set out in Montgomery and agreed that the issue of whether a doctor should have been aware of the relevant risks is a matter for expert evidence. The Court upheld the trial judge’s findings that the Claimant had been appropriately warned of the risks of surgery and that she would still have proceeded with the surgery, even if the risk of neuropathic pain had been disclosed. The Court of Appeal also rejected the Claimant’s interpretation of Chester v Afshar stating,

the majority decision in Chester does not negate the requirement for a claimant to demonstrate a “but for” causative effect of the breach of duty

What to take away

This decision affirms the limited scope of the exception to conventional causation principles in Chester v Afshar as well as the view that clinicians cannot be required to warn of a risk they are unaware of; whether they should be aware will be a matter for the Court to determine after hearing expert evidence.

Capsticks Solicitors LLP were instructed to act on behalf of the Defendant by Worcestershire Acute Hospitals NHS Trust and NHS Resolution.

The full judgment can be found here.