Medical treatment and breaks in the chain of causation: Getting stuck in a Webb?

Mon, 24 Apr 2023

Picture the scene with me. Whilst gathered around the water-cooler chatting about causation, as is of course the wont of personal injury lawyers, the topic of post-negligence medical treatment breaking the chain of causation comes up. It would be unlikely to cause much disagreement. Everyone knows only gross negligence by the hospital would become a novus actus interveniens (the use of legal Latin also being a particular favourite of personal injury lawyers of course).

However, it would seem that consensus has to be revisited. Mr Justice Andrew Baker held in Jenkinson v Hertfordshire County Council [2023] EWHC 872 (KB) that there was no such rule of law that medical negligence had to be grossly negligent in order to break the chain of causation.

The matter came before Andrew Baker J on an appeal against the refusal of a District Judge to allow the Defendant to amend the Defence to plead later medical treatment as a break in the chain of causation. In directing himself on the law, the District Judge repeated what our water-cooler crowd all agreed to be correct, that any such negligent treatment had to be grossly negligent to do so. The judge was therefore deciding whether that was a correct statement of the law, referring to it as the ‘Specific Rule’ within his judgment. In the view of Andrew Baker J, there is no such Specific Rule and the District Judge was wrong.

In Webb v Barclays Bank and Portsmouth Hospitals NHS Trust [2001] EWCA Civ 1141, a claimant suffered a knee injury whilst working for Barclays Bank. A surgeon recommended amputation, which took place, but that treatment strategy was negligent. The claimant joined the Trust as well and the Bank also pleaded a contribution claim against the Trust. The Bank then settled the entirety of the claim and so just the contribution proceedings proceeded. In considering the case, the Court of Appeal (a bench of Henry, Hale and Judge LLJ, not exactly a weak constitution of the Court) stated:

55. Finally, we agree with the editors of Clerk & Lindsell on Torts, when they say:

"Moreover, it is submitted that only medical treatment so grossly negligent as to be a completely inappropriate response to the injury inflicted by the defendant should operate to break the chain of causation" (18th ed., 2-55)."

Notwithstanding that clear and unequivocal endorsement, which incidentally also appears in the headnote of the case report in the Personal Injury and Quantum Reports, found at [2002] PIQR 8, Andrew Baker J held that “it was not applied by the Court of Appeal to decide that case. Rather, Henry J at [56] considered a range of factors, only one of which was that there had been negligence but not gross negligence.” Accordingly, in Andrew Baker J’s view, there was no such rule of law.

It is correct to note that in Webb Henry LJ did indeed refer to additional factors as to why there was no break in the chain of causation, namely that the initial injury continued to have causative force and medical intervention was foreseeable. However, it does not follow that the Court of Appeal were therefore disregarding the concept as set out in Clerk & Lindsell that they had endorsed or were in some way not applying it. Firstly, the Specific Rule was explicitly referred to as a reason, in addition to the endorsement a mere one paragraph above. Secondly, there can be more than one reason that there is no break in the chain of causation. Nothing in the judgment in Webb suggests that all factors referred to by Henry LJ had to have been present in order for the chain not to be broken and that it was only the accumulation of them that led to the conclusion reached.   

It is also worth considering one of the further reasons Andrew Baker J relied upon. At [41] he held:

“a rule of law in terms of the Specific Rule is a recipe for litigation within litigation over when treatment otherwise proper in kind is so poorly executed as to become an inappropriate medical response.”

Is that fear correct? Most, if not all, of our water-cooler personal injury lawyers from earlier would say not. Rather the Specific Rule/Webb has allowed parties in personal injury actions to focus on the original tortfeasor, often an employer or otherwise insurer backed, even where later treatment was sub-optimal. Given the high hurdle for defendants to shift the blame entirely on to medical practitioners, which we can probably assume to be the NHS, defendants and claimants simply do not bother to bring the NHS in to the main proceedings. That saves costs and avoids undue complexity. Arguably it is Andrew Baker J’s judgment which will ensnare all parties involved in such a scenario in a Webb of complication.

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