Anonymized Summary of the Opinion

Factual and Procedural Background

The Plaintiffs are the wife and son of the Deceased, who died of lung cancer on 23 February 2023 at age 49. The Plaintiffs allege that the Defendant, the Deceased's general practitioner, negligently failed to inform the Deceased that she had requested a chest x-ray at an appointment on 11 February 2019. The x-ray request was made via an electronic system that requires the patient to attend a walk-in radiology department for the request to be actioned; there is no automatic follow up to the doctor or patient.

It is common ground that an x-ray, had it been performed, would have shown an abnormality leading to CT imaging and subsequent cancer treatment; the parties disagree about whether earlier identification would have altered the cancer's progress. On 7 July 2025 the court (Judge Skinner) ordered the trial of three preliminary issues limited to (a) whether the Deceased was told of the x-ray request and need to attend the walk-in radiology department, (b) if not told, whether he would have attended for the x-ray if he had been informed, and (c) contributory negligence. This opinion records the trial of those preliminary issues. A separate 5-day hearing to consider causation and quantum is listed for May 2026.

Legal Issues Presented

1. Did the Defendant fail to tell/inform the Deceased that a chest x-ray was required and/or that the Deceased needed to attend the local walk-in radiology department in order for the chest x-ray to be carried out?
2. If the court finds that the Deceased was not told and/or informed about the chest x-ray and/or that he needed to attend the local walk-in radiology department, would the Deceased have attended for a chest x-ray had he been so informed?
3. Whether contributory negligence, as pleaded by the Defendant, applies.

Arguments of the Parties

Defendant's Arguments (as advanced by Attorney Webb)

• The burden of proof is on the Plaintiffs and it is unlikely the Defendant would have ordered an x-ray and not told the Deceased about it; her usual practice was to inform patients and explain the process.
• The consultation record contains detail that supports the view the Defendant discussed the matter in the consultation; the absence of an explicit entry about an x-ray does not establish omission.
• The Deceased had a history of non-attendance for appointments (including failure to attend a follow-up appointment on 27 February 2019 and asthma review clinics), which tends to show he might not have acted on an x-ray request even if told.
• Regarding contributory negligence, the Defendant relied on authorities and submitted that failure to attend follow-up appointments and reviews could amount to contributory negligence.

Plaintiffs' Arguments (as advanced by Attorney Rodway)

• The Deceased was a meticulous man who would have followed up a properly explained x-ray request, and it is implausible that he would have been told about an x-ray and then not acted on it.
• The structure and timing of the consultation, and the presence of items later added to the record (for example a prescription entered after the patient left), support the proposition that the x-ray request may have been an afterthought and was not discussed in the Deceased's presence.
• The contributory negligence authorities relied upon by the Defendant were said to be inapposite and not reflective of the facts here.

Table of Precedents Cited

Court's Reasoning and Analysis

The court's analysis proceeded from the evidence available and applied the balance of probabilities standard to the preliminary issues. The evidence was categorised as: contemporaneous medical records; the Deceased's signed statement of 20 January 2022; the Defendant's later statement and oral evidence; and background witness statements from family, a friend, a colleague and the Plaintiffs' solicitor. The consultation record dated 11 February 2019 confirmed that a chest x-ray was requested but contained no narrative of any discussion with the Deceased about that request.

The court recognised that neither the Deceased nor the Defendant had a direct recollection of the consultation and that each party asked the court to prefer a competing proposition: (1) that the Deceased would have remembered and acted on being told to get an x-ray; or (2) that the Defendant had a consistent practice of informing patients when she ordered an x-ray and would have done so here.

The court gave significant weight to the contemporaneous records and to patterns of practice recorded in other clinicians' notes. Key factual observations relied on in the court's reasoning included:

• The Deceased had been worried about his health in late 2018 and early 2019 and had used out-of-hours services on the day before the consultation, which made it more likely that he would have followed up a recommendation for investigation if he had been told one was needed.
• The Deceased had previously been referred for blood tests and had attended for those tests; the court inferred that he was familiar with a process requiring patient action to arrange such tests and would likely have acted similarly for an x-ray if he had known one was requested.
• There was no record that the Deceased had undergone any prior x-ray; the x-ray requested on 6 January 2020 (after the relevant period) led to the cancer diagnosis.
• The consultation note did not record any discussion about the chest x-ray nor include it in the consultation plan, whereas other clinicians' contemporaneous notes in the bundle did record their investigations and plans. The court considered that, had the Defendant discussed the x-ray in the patient's presence, she would likely have recorded that discussion.
• The Defendant added a prescription (prednisolone) after the Deceased had left and sent a text about that prescription; the court viewed this as evidence that some elements of care were attended to after the patient left and that the x-ray request may likewise have been made after he had departed.
• The Defendant accepted that she would have told the Deceased the likely purpose of the x-ray (to rule out serious pathology, including cancer), and the court reasoned that such information would ordinarily prompt a patient to seek reassurance and to follow up.

Balancing these factors, the court found it more likely on the balance of probabilities that the Deceased was not told about the x-ray request. The court then assessed whether, if told, the Deceased would have attended for an x-ray. The same facts (his concern about health, familiarity with arranging investigations, and the likely significance ascribed to an x-ray requested to exclude cancer) led the court to conclude he probably would have attended.

On contributory negligence, the court reviewed the authorities put forward by the Defendant and emphasised that those cases involved evidence that the claimants in them understood the significance of non-attendance. The burden of proving contributory negligence lies on the Defendant, and in this case the court found no evidence that the Deceased understood the significance of failing to attend in the way required by those authorities. Accordingly, contributory negligence was not established.

Holding and Implications

The court's dispositive findings on the preliminary issues were as follows:

a) The Defendant failed to tell/inform the Deceased that a chest x-ray was required and that he needed to attend the local walk-in radiology department in order for the chest x-ray to be carried out;
b) The Deceased would have attended for a chest x-ray had he been so informed;
c) The Deceased was not contributorily negligent.

Core Ruling: The court found for the Plaintiffs on the three preliminary issues listed above.

Implications: The immediate consequence is that the Plaintiffs succeed on the preliminary issues of notification and hypothetical attendance and avoid a finding of contributory negligence. The matters of causation and quantum remain to be tried at the listed 5-day hearing in May 2026. The opinion does not purport to establish a new legal principle; it applies established principles (including a cautious approach to contributory negligence in clinical negligence claims) to the particular facts and evidence before the court.