Making Clinical Negligence Simpler
A complex area of the law has been helpfully clarified this week in the Privy Council’s decision in Williams v The Bermuda Hospitals Board (Bermuda)  UKPC 4 (25 January 2016). This decision should help clinical negligence lawyers to run cases more proportionately.
Mr Williams suffered a negligent delay in operating on his infected appendix of between around 2.5 and 5 hours
. The issue was whether this was sufficient to have caused his severe infection. Although it contributed to the worsening infection he suffered, the law requires Claimants to prove that any negligence was the probable cause of the injury sustained.
The Bermuda Hospitals Board appealed its country’s Court of Appeal
decision and this was held in London before the Privy Council
. Broadly speaking, this is equivalent to our Supreme Court and the same judges sit in both courts. The decision does not bind our courts but is persuasive for this reason. The NHS Litigation Authority (NHSLA)
chose to intervene in this case because it saw an opportunity to clarify English law and attempted to persuade the court that Claimants should not be allowed to obtain compensation in cases where medical knowledge is insufficiently far advanced to allow them to prove that the negligence probably caused their injury.
Instead, the court rejected these arguments and confirmed that Claimants can prove their case by showing that the negligence materially contributed to the process by which their injury was caused. In this case, the negligent delay in operating on Mr Williams made his infection worse but it could not be shown by how much. The court also helpfully advised that an important English case on this point (Bailey v MOD)
would also have been won applying the usual, all-or-nothing ‘but for’ test making this sort of case less risky for Claimants to bring. Finally, the court also helpfully cautioned against overusing the ‘doubling of risk’ method of assessing the impact of any increased harm. At best this is a guide and not a rigid rule.
Taken together, these comments should help to reduce the costs involved of investigating and proving these cases. This is one of the NHSLA’s
stated goals. However, it remains to be seen whether it continues to instruct its lawyers to look for ways around this decision. These issues arise in many clinical negligence cases; in particular, serious brain injury caused by a lack of oxygen; cancer diagnosis and traumatic injuries. Accordingly, the Privy Council has given us the opportunity to deal with these cases more quickly by reducing the uncertainty over the law. These cases require complex analysis by the lawyers but simple advice to clients and Simpson Millar welcomes the Privy Council’s decision which gives the judges greater freedom in inferring that the injury was avoidable for themselves.