Loss of Chance? Probably Not

Originally published in January 2002

The recent decision of the Court of Appeal in Webb v Barclays Bank Plc & Portsmouth Hospitals NHS Trust1 is not one to set pulses racing. However, at first blush (and at first instance) a few eyebrows were raised as Rougier J opted in April 2000 to assess damages as a lost chance instead of using the traditional "but for" test. Clinical negligence claims potentially took on a different complexion, albeit briefly.

The claimant was a 45 year old bank employee. In January 1994 she tripped at work, causing increased pain and disability to the left knee. After advice from a consultant orthopaedic surgeon, she underwent an above-knee amputation in February 1995. She sued Barclays for damages for personal injury. Barclays contended that the above-knee amputation had been unnecessary and the claimant joined the NHS Trust as a second defendant. Barclays sought a contribution from the Trust.

The claimant's claim was settled in full by Barclays shortly before trial. The contribution proceedings continued to trial and judgment was given on 13 April 2000.

Rougier J concluded that the consultant orthopaedic surgeon had negligently failed to advise the claimant of treatment options alternative to amputation. However, he found causation difficult. He accepted that, in ordinary circumstances, the test for assessing the extent of recoverable damage (if any) would be:

"... whether on the balance of probabilities, the claimant succeeded in proving, either by direct evidence or necessary inference that she would have ... avoided amputation and its consequences"

However, he took the view that he did not have sufficient evidence before him to apply that test. Instead, he assessed the claimant's "loss of a chance" of avoiding amputation, valuing that lost chance at 40%. He conceded that this was a speculative exercise.

The Trust appealed, contending that the wrong test had been applied. The correct approach, they said, was to decide whether the claimant would have undergone amputation in any event, on the balance of probabilities. As the judge had concluded that there was insufficient evidence that the claimant would have avoided amputation, the claim against the Trust must fail. It followed that the contribution proceedings must also fail.

In fact, the parties agreed before the Court of Appeal hearing that the "balance of probabilities" test was the right one.

The Court of Appeal therefore made no ruling on that point...