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Chester v. Afshar
Factual and Procedural Background
The Plaintiff experienced chronic lower-back pain from 1988 onwards. After years of conservative treatment by a rheumatologist, imaging revealed significant disc protrusions. In November 1994 the rheumatologist referred the Plaintiff to the Defendant, an experienced neurosurgeon, who advised elective lumbar surgery and performed it three days later. The procedure was carried out with due technical skill but resulted in cauda equina syndrome, leaving the Plaintiff partially paralysed.
The trial judge found no operative negligence but held that the Defendant had breached a duty to warn the Plaintiff of a 1–2 % inherent risk of serious neurological damage. Although the judge could not say the Plaintiff would never have consented to surgery, he found she would at least have postponed it to seek more information. Judgment was entered for the Plaintiff. The Court of Appeal affirmed. The Defendant appealed to the ultimate appellate court.
Legal Issues Presented
- Whether a doctor’s negligent failure to warn a patient of a small but inherent surgical risk can be treated as the legal cause of the ensuing injury when the patient cannot prove she would ultimately have refused the operation.
- Whether traditional “but-for” causation should be modified in informed-consent cases so that breach and materialisation of the warned-about risk suffice for liability.
- Whether public-policy considerations concerning patient autonomy justify such a modification.
Arguments of the Parties
Defendant's Arguments
- Causation in negligence requires proof that, but for the breach, the injury would probably not have occurred; the Plaintiff could not show she would have declined surgery altogether.
- Failure to warn did not increase the risk; the same 1–2 % chance would have existed whenever and by whoever the surgery was performed.
- Creating liability without proof of increased risk would make doctors insurers against inherent surgical hazards.
Plaintiff's Arguments
- The Defendant’s duty was to protect the Plaintiff’s right to make an informed choice; breach of that duty combined with realisation of the very risk about which she should have been warned is sufficient causation.
- If properly warned, the Plaintiff would have postponed the procedure, sought other opinions, and the statistical likelihood of this specific injury on a later occasion was extremely small.
- Policy considerations supporting patient autonomy warrant a narrow but necessary departure from orthodox causation rules.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Fairchild v Glenhaven Funeral Services Ltd | Exceptional departure from “but-for’’ causation where justice demands | Cited to illustrate that causation rules can be modified where policy justifies it |
| Chappel v Hart (High Court of Australia) | Failure to warn and occurrence of warned-about risk can satisfy causation | Majority reasoning adopted by the Court; dissent used by minority of their Lordships |
| Pearce v United Bristol Healthcare NHS Trust | Scope of surgeon’s duty to warn of material risks | Confirmed existence of the duty owed by the Defendant |
| Bolam v Friern Hospital Management Committee | Professional standard for medical negligence | Framework for assessing breach; duty to warn recognised within it |
| Sidaway v Board of Governors of the Bethlem Royal Hospital | Duty to warn and patient autonomy under English law | Provided historical context for right to informed consent |
| Bolitho v City and Hackney Health Authority | Judicial scrutiny of expert medical opinion | Reinforced that courts, not doctors, define duty content |
| Smith v Barking, Havering & Brentwood HA | Failure-to-warn causation fails where patient would have consented anyway | Contrasted with present facts |
| Smith v Salford HA | Similar point on causation and informed consent | Distinguished |
| McAllister v Lewisham & North Southwark HA | Successful claim where patient would have refused surgery | Illustrative comparison |
| Smith v Tunbridge Wells HA | Breach of duty to warn about impotence risk | Comparison for causation analysis |
| Rogers v Whitaker (High Court of Australia) | Objective “prudent patient’’ test for disclosure | Cited in discussion of international approaches |
| Canterbury v Spence (US) | Patient-centred duty of disclosure | Discussed as alternative model rejected in Sidaway |
| March v E & MH Stramare Pty Ltd | Common-sense approach to causation | Relied on in comparative reasoning |
| Monarch Steamship Co Ltd v Karlshamns Oljefabriker | Illustration of intervening events and causation | Used in minority analysis |
| Carslogie Steamship Co Ltd v Royal Norwegian Government | Breaks in chain of causation | Used in minority analysis |
| Environment Agency v Empress Car Co | Scope of duty informs causation question | Cited to support policy-driven causation reasoning |
| Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd | Need to link loss to scope of duty | Referenced in majority reasoning |
| Kuwait Airways Corp v Iraqi Airways Co (Nos 4 & 5) | Duty scope and causation | Cited in passing |
| Central of Georgia Railway v Price | Coincidental loss unrelated to breach | Analogy used by minority |
| Associated Portland Cement v Houlder Brothers | Remoteness and coincidence | Illustrative analogy in minority speech |
Court's Reasoning and Analysis
Five Law Lords delivered separate opinions. A majority (Judge Steyn, Judge Hope, and Judge Walker) endorsed a limited departure from traditional causation:
- The core purpose of the warning duty is to safeguard patient autonomy; without an effective remedy that purpose is undermined.
- The injury suffered was the very risk about which the Defendant was obliged to warn. That intimate nexus justifies treating breach and injury as causally linked.
- Policy considerations—respect for personal autonomy and maintenance of public confidence—support a “narrow and modest” relaxation of the “but-for” rule, analogous to the approach in Fairchild.
The minority (Judge Bingham and Judge Hoffmann) would have allowed the appeal:
- Traditional causation was not satisfied; the Plaintiff could not prove she would ultimately have refused surgery.
- Failure to warn did not increase the risk; imposing liability would improperly make physicians insurers of unavoidable surgical hazards.
- Vindication of autonomy might justify nominal relief, but not full compensatory damages for physical injury.
Holding and Implications
Appeal dismissed. The Plaintiff is entitled to damages for the neurological injury.
Implications: The ruling recognises an exception to strict “but-for” causation in informed-consent litigation. Where a patient suffers the very injury about which a warning was required, courts may treat breach and injury as causally connected even absent proof the patient would never have consented. The decision strengthens patient autonomy but is expressed as a “narrow and modest” doctrinal modification rather than a wholesale replacement of causation principles.
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