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    Surgeon failing to warn claimant of inherent risk of paralysis in lumbar surgery – surgery performed without negligence but risk eventually – claimant sufficiently satisfying causation test by proving she would not, if properly informed, have undergone surgery when she did

    Following the defendant’s advice, the claimant consented to surgery which resulted in partial paralysis.

    In negligence proceedings, the judge found that, although surgery was not performed negligently, the defendant failed to warn the claimant of the inherent risk which occurred.

    The judge also found that, if warned, she would not have undergone surgery then but would have sought further advice. He concluded that the necessary causal link was established and gave judgment in her favour.

    The Court of Appeal dismissed the defendant’s appeal. The defendant appealed.

    Martin Spencer QC and Kristina Stern (instructed by Hempsons, London) for the defendant, Adrian Whitfield QC and Jacqueline Perry (instructed by Eversheds, Newcastle upon Tyne) for the claimant.

    Held that, since the claimant did not assert that, if informed, she would never have consented to the operation and since failure to warn was not the effective cause of the injury, the claimant could not succeed on conventional causation principles, but that, dismissing the appeal (Lord Bingham and Lord Hoffman dissenting), the scope of the doctor’s duty to warn was closely connected with the need for the claimant’s consent and her right to exercise an informed choice as to whether and, if so, when and by whom to receive treatment; that since the injury was within the scope of that duty and was the result of the risk of which she was entitled to be warned, it was to be regarded as caused by the defendant’s failure; and that, accordingly, justice required a narrow modification of traditional principles to vindicate her right.

    Chester v Afshar: HL (Lord Bingham of Cornhill, Lord Steyn, Lord Hoffman, Lord Hope of Craighead and Lord Walker of Gestingthorpe): 14 October 2004

    “The Law Society’s Gazette” 11th November 2004