Loss of a chance and foreseeability of damage in clinical negligence claims
Produced in partnership with Sarah Fraser Butlin of Cloisters Chambers
Loss of a chance and foreseeability of damage in clinical negligence claims

The following PI & Clinical Negligence guidance note Produced in partnership with Sarah Fraser Butlin of Cloisters Chambers provides comprehensive and up to date legal information covering:

  • Loss of a chance and foreseeability of damage in clinical negligence claims
  • Remoteness and foreseeability
  • Failure to treat/loss of chance
  • Failure to warn
  • Failure to act
  • Subsequent negligence
  • Contributory negligence
  • Foreseeability of harm
  • The tortfeasor must take his victim as he finds him

Remoteness and foreseeability

If an injury was in fact caused by an act of clinical negligence, that does not mean the courts will award damages to the claimant against the negligent clinician. The tort only results in damages if all elements of it are proven:

  1. duty of care

  2. breach of that duty

  3. causation ie the breach caused loss, and

  4. injury

Remoteness of loss and foreseeability are slippery concepts that run through every element of the stages set out above. They are the judicial tools by which common sense and policy are exercised.

Failure to treat/loss of chance

Where, but for the clinical negligence, the claimant had a chance of recovering without adverse consequences or had a good chance of a cure, how do the courts approach causation and what damages are awarded? These are matters of causation mixed with remoteness.

In Hotson v East Berkshire Area Health Authority a 13-year-old fell from a tree, fracturing his left femoral epiphysis. At hospital his condition was not diagnosed for five days and he developed avascular necrosis, resulting in disability in his hip. The health authority admitted negligence but the trial judge found there was a high probability, assessed at 75%, that the condition would have developed anyway. He awarded damages on the basis of a 25% chance that the condition would not