Factual and Procedural Background
This appeal concerns the claim of the Plaintiff against Company A for damages for negligence related to a total abdominal hysterectomy and bilateral salpingo-oophorectomy performed at The Hospital on 25 March 2008. Following the operation, the Plaintiff suffered nerve damage resulting in serious and permanent pain, described as Chronic Post Surgical Pain ("CPSP"). There was no allegation that the operation itself was performed negligently; rather, the Plaintiff's case was that she was not adequately warned of the risk of pain associated with the operation.
After a four-day trial before Judge Worster in Birmingham County Court in September 2015, judgment was delivered on 5 February 2016 dismissing the claim on the grounds that the respondent was not negligent and causation was not established. Both findings were appealed.
Prior to the operation, the Plaintiff had a history of painful and heavy periods worsening over time and lower back pain. She pursued medical advice and expressed a strong desire for the operation despite being informed it was major surgery with associated risks. Consultations confirmed her decision to proceed, with notes indicating risks were explained, although evidence was unclear whether written information was provided.
On the day of surgery, the Plaintiff was late, felt pressured during the consent process, and signed a consent form that did not mention pain risks. Medical staff acknowledged only warning about normal post-operative pain, not chronic or neuropathic pain. The operation was performed non-negligently. Post-operatively, nerve damage was identified, causing pain different from pre-operative symptoms, consistent with CPSP.
The Plaintiff originally claimed failure to warn of CPSP, but expert evidence did not support the existence of a known risk of CPSP at the time of surgery. The claim was amended to allege failure to warn of post-operative pain generally. The Plaintiff's case evolved to include some duty to warn of neuropathic and short-term chronic pain, relying on a 2009 Guidance from a professional body which post-dated the surgery but was accepted as best practice.
Legal Issues Presented
- Whether the judge erred in applying the test for breach of duty set out in Montgomery v Lanarkshire Health Board, particularly regarding the materiality of the risk of pain given the Plaintiff's motivation for surgery.
- Whether the judge erred in applying the test for causation as set out in Chester v Afshar, and if the Plaintiff would have succeeded had that test been applied.
- Whether the judge misapplied the causation test by failing to consider that the Plaintiff's motivation for surgery was pain relief and that appropriate warning would have caused her to have second thoughts.
Arguments of the Parties
Appellant's Arguments
- The judge failed to properly apply the Montgomery test by not considering the materiality of the risk of chronic or neuropathic pain in light of the Plaintiff’s desire for pain relief.
- The judge applied an outdated Bolam test instead of the correct Montgomery standard.
- The judge erred in causation by not applying the Chester test, which would have allowed the Plaintiff to succeed without proving she would have declined surgery altogether.
- The judge failed to properly consider that a warning of risk would have caused the Plaintiff to reconsider or seek further advice.
Respondent's Arguments
- The judge correctly applied the law by finding insufficient knowledge among medical professionals in 2008 about the risk of chronic or neuropathic pain to impose a duty to warn.
- The judge properly rejected the causation arguments, finding on the facts that the Plaintiff would have proceeded with surgery despite any warning.
- The Chester decision does not displace the requirement to prove "but for" causation in the circumstances of this case.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Montgomery v Lanarkshire Health Board [2015] UKSC 11 |
Defines the duty of doctors to warn patients of material risks; introduces the test of materiality based on what a reasonable patient would consider significant. |
The court considered whether the judge correctly applied the materiality test and concluded that the judge did not err in finding no duty to warn due to insufficient medical knowledge of the risk in 2008. |
| Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871 |
Established the Bolam test for medical negligence regarding disclosure of risks. |
The court noted that the judge's reliance on the Bolam approach was understandable given the timing of expert reports but affirmed that Montgomery governs the duty to warn. |
| Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 |
Sets the standard of care for medical professionals based on accepted medical practice. |
The court distinguished between medical judgment and the patient's right to be informed, confirming that risk disclosure is not governed solely by Bolam. |
| Chester v Afshar [2004] UKHL 41 |
Modified causation principles in informed consent cases where failure to warn led to injury; allows causation to be established if injury was intimately connected to the risk about which the patient should have been warned. |
The court rejected the appellant's argument that Chester removes the need to prove that the operation would not have proceeded when it did, affirming the necessity of "but for" causation. |
| Correia v University Hospital of North Staffordshire NHS Trust [2017] EWCA Civ 356 |
Clarified that the exceptional causation principle in Chester requires pleading and proving that the claimant would have deferred the operation if warned. |
The court cited this case to support the requirement for factual proof of causation, rejecting the appellant's causation argument. |
| Wallace v Kam [2013] HCA 19 |
Australian case on scope of duty to warn and causation in medical negligence. |
Referenced to illustrate the scope of duty and causation issues relevant to the appellant’s arguments, indicating no duty to protect from risks inherent in surgery itself. |
| Chappel v Hart [1998] HCA 55 |
Australian case on causation where claimant would have chosen a different surgeon if warned. |
Discussed as a comparative case showing a different causation scenario than Chester, not directly applicable here. |
| Shaw v Kovac [2017] EWCA Civ 1028 |
Rejected claims for damages based solely on invasion of personal autonomy due to failure to warn. |
Used to confirm that damages cannot be claimed for mere failure to warn without physical injury consequences. |
| Allen v Sir Alfred MacAlpine & Sons Ltd [1968] 2 QB 229 |
Illustrates shifting burden of proof where defendant's negligence causes difficulty in proving causation. |
Referenced in policy discussion on burden of proof but not applied to alter the burden in this case. |
| Phillips v Whatley [2007] UKPC 28 |
Similar to Allen, concerning burden of proof in negligence cases. |
Referenced in the context of burden of proof but no alteration made in this case. |
Court's Reasoning and Analysis
The court carefully analysed the factual and expert evidence concerning the duty to warn and causation. Regarding breach of duty, the court reaffirmed the Montgomery framework, distinguishing the medical professional’s knowledge of risks from the materiality of those risks to the patient. The judge found that in 2008 the medical community, specifically gynaecologists, did not have sufficient understanding of chronic or neuropathic pain risks to impose a duty to warn. This finding was supported by expert evidence and consistent with the contemporaneous professional guidance.
The court noted that the Plaintiff’s case had evolved during trial, complicating the duty to warn claim, but that the judge’s approach was justified and consistent with legal principles. The court rejected the appellant’s contention that the judge failed to apply the Montgomery test properly, concluding that the judge’s findings were a legitimate application of the law to the facts.
On causation, the court examined the Chester principle, which allows modification of traditional causation rules in informed consent cases. However, the court emphasised that Chester requires proof that the operation would not have proceeded when it did if the patient had been warned. The judge found on the evidence that the Plaintiff would have proceeded regardless of warning, given her longstanding symptoms and determination to have the surgery. This factual finding was supported by substantial evidence and was not disturbed on appeal.
The court also considered policy arguments about the burden of proof and patient autonomy but concluded that these did not justify extending liability where causation was not established. The court reaffirmed that the burden remains on the claimant to prove causation on the balance of probabilities.
Holding and Implications
The court DISMISSED the appeal, rejecting all three grounds advanced by the Plaintiff.
The direct effect is that the original judgment dismissing the negligence claim for failure to warn and lack of causation stands. No new legal precedent was established beyond affirming existing principles from Montgomery and Chester. The decision underscores the importance of contemporaneous medical knowledge in establishing duty and affirms the necessity of factual proof of causation in informed consent cases.