Loss of right in English law

In the English law of tort, loss of right is a new heading of potential liability arising as a matter of policy to counteract limitations perceived in the more traditional rules of causation.

Loss of a right

Recent medical negligence cases suggest tacit recognition of a more rights-based approach to damage. Under this approach, claimants who cannot establish causation using the traditional "but for" rules may nevertheless recover if they can show that in failing to fully advise of the risks inherent in treatment, a defendant has deprived them of the right either to choose a more experienced doctor or to defer the date of the treatment. In "Chester v. Afshar" ["Chester v. Afshar" [2004] [http://www.bailii.org/uk/cases/UKHL/2004/41.html UKHL 41] ] the claimant was advised by the defendant surgeon to undergo surgery which carried a small (1-2%) but unavoidable risk of a seriously adverse result inherent in the procedure and not dependent on any characteristics of the patient. The surgeon did not warn her of that known risk, and she suffered serious nerve damage which left her partially paralysed. There was no evidence of negligence in the surgery itself. The alleged breach of duty was the failure to warn of the risk and the claimant had to prove that "but for" the failure to warn her, she would not have had the surgery. Lord Hope said: “It is plain that the ‘but for’ test is not in itself a sufficient test of causation.” (para 72) but accepted: “…that a solution to this problem which is in Miss Chester’s favour cannot be based on conventional causation principles..” (para 81). Nevertheless, he thought that: “ [t] he issue of causation cannot be separated from issues about policy.” (para 85) and questioned whether in the unusual circumstances of this case, justice required the normal approach to causation to be modified, given that the issue which had arisen in this case raised an issue of legal policy which a judge must decide. The general view is that patient autonomy must be respected which is why the law has imposed a duty on doctors to give comprehensive information so that the patient can make an informed choice as to whether to have the operation. If there are known risks, some might find the choice whether to consent easy, but others would find the choice difficult and would wish to consider all options before taking the decision. Not to enforce the duty to warn of known risks would render the duty useless in the cases where it might be needed most. Lord Steyn said at para 19,

[I] t is a distinctive feature of the present case that, but for the surgeon’s negligent failure to warn the claimant of the small risk of serious injury the actual injury would not have occurred when it did and the chance of it occurring on a subsequent occasion was very small. It could therefore be said that the breach of the surgeon resulted in the very injury about which the claimant was entitled to be warned.”

In general, it is not desirable to depart from established principles of causation, except for good reasons, the Lords held the right of autonomy and dignity justified a modification of the general rule in this case. (cf ": Chappel v Hart" (1998) 195 CLR 232 in Australia). Stevens argues that this decision is problematic. Suppose that a car being driven at an excessive speed is struck by a falling tree and a passenger is injured. It does not matter whether the risk of falling trees was foreseeable (e.g. because of prevailing weather conditions) that risk is not increased by driving too fast. The purpose of the rule imposing a duty to drive safely is to avoid traffic accidents not falling trees. In "Chester v Afshar", the surgeon's breach of duty has not caused the patient to run any greater risk. If the purpose of the duty is solely to enable the patient to make an informed choice about whether to have the operation at all, the claimant's argument should fail. As Lord Hoffmann says at para 31,

This argument is about as logical as saying that if one had been told, on entering a casino, that the odds on No 7 coming up at roulette were only 1 in 37, one would have gone away and come back next week or gone to a different casino."

Although it is true that a patient may wish to take time to discuss the matter with family and friends and, possibly, seek a second opinion, the ultimate decision does not change the nature of the risk. It seems that the majority of the Lords wish to create an exception because the opportunity to reflect is itself deserving of respect.

Notes

References

*Cane, Peter. (1999). "Atiyah’s Accidents, Compensation and the Law". Sixth edition, Chapter 5. Cambridge: Cambridge University Press. ISBN 0-521-60610-1
*Deakin, Simon; Johnston, Angus & Markesinis, B. S. (2003). "Markesinis and Deakin's Tort Law". pp. 174-201. Oxford: Clarendon Press. ISBN 0-925731-925711-4
*Hart, H. L. A. & Honore, A. M. (1985). "Causation in the Law". Oxford: Clarendon Press.
*Luckham, Mary. "Informed consent to medical treatment and the issue of causation: the decision of the House of Lords in Chester v Afshar [2004] UKHL 41" [http://www.lawinabox.net/lbnewswire07e.html]
*Rogers, W. V. H. "Winfield and Jolowicz on Tort", pp. 195-231. London: Sweet & Maxwell. ISBN 0-421-76850-9
*Stevens, Robert. "An Opportunity to Reflect" [http://www.biicl.org/admin/files/afshar5.doc]
*Weir, Tony. (2002). "Tort Law". Chapters 4 & 5. Oxford: Oxford University Press. ISBN 0-925017-924997-9