Wednesday, 10 August 2011

Wright v Cambridge Medical Group [2011] EWCA Civ 669: splitting two causes

Causation is the bugbear of tort.  It sounds simple enough.  You live your life normally, someone does something wrong, you get injured, you sue, you win.  But getting between the something wrong and the injury is awkward.  Someone throws a rock at you when you’re driving, you swerve off the road; the throwing is close enough to cause your injury.  But if you’re a bystander at the end of the street struck by a lamp-post that’s knocked over by a lorry driver who sees the aftermath of the accident and forgets to look at the road…is the throwing the cause of THAT one?

Even worse is when there are two causes.  You get run over, you get taken to hospital, your injury gets worse.  Does the original driver pay for the hospital’s exacerbation?  Tricky.

Even trickier if one of the parties isn’t present.  This is what happened in the Wright case.  Distressingly simple facts; Clarissa, an eleven month old girl caught chickenpox, ended up with a hospital bug, and her mother called the doctor.  The doctor was negligent; he didn’t bother going to see the girl, and it was agreed that, had he done so, she would have been taken to hospital. 

Because the condition did not improve Clarissa’s mother took her to another doctor, who referred her at once to the hospital.  That’s when things got even worse.  Clarissa was already suffering, but the hospital made it worse – the antibiotics applied inflamed the bacterial strain.  Clarissa is left with long term damage to her hip.

Naturally, Clarissa brought a claim against the initial doctor’s practice.  For some reason she didn’t sue the hospital; nor did the doctor sue for a contribution.  So this was the problem.  At first instance the court couldn’t find that the doctor’s negligence caused the hip injury.  That was due to the hospital’s treatment, which would have happened regardless of when Clarissa was taken there.  Even though the doctor was negligent, he hadn’t caused the loss.

Clarissa’s mother brought the case to appeal.  Surely Clarissa suffered at least SOME harm when the original doctor failed to make the referral?  And the hospital made it worse?  On normal legal principles the initial negligence would carry though.  It’s rare when a second bout of negligence completely destroys the initial bout from a causation perspective.  The case of Rahman v Arearose suggests that, in circumstances where two bits of negligence reinforce each other, both those negligent caused the greater damage.

And so the Court of Appeal found in favour of Clarissa.  The hospital lost a couple of days of analysis and treatment because the doctor failed to refer in time.  It’s not outrageously unforeseeable that a hospital, in circumstances where they have little time, might get the treatment wrong, even more so when that already limited time is truncated by 48 hours.  The two actions were close enough to make sure the doctor was still on the hook.  And that’s without even considering whether an on-time referral might have meant a different doctor – one who would not have made the same mistake – would have dealt with matters at the hospital.  Especially given that by the time Clarissa went to the hospital it was a weekend – when there were fewer paediatric consultants to hand.

The difficulty in causation is shown though by the Court of Appeal coming to a 2-1 decision – and Smith LJ had subtly different reasons to Neuberger LJ in allowing the appeal.  Perhaps the situation would have been made clearer had the hospital been involved in the case; there is no indication as to why it was not…

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