The Dekagram 24th April 2023

• Jurisdiction: United States,Federal
• Law Firm: Deka Chambers
• Subject Matter: Litigation, Mediation & Arbitration, Personal Injury, Professional Negligence
• Author: Ms Ella Davis and Anirudh Mandagere
• Published date: 03 May 2023

This week the team look at what some will find a surprising development in the doctrine of novus actus interveniens in the context of medical interventions, and ask whether we're likely to see an increase in claims against the NHS as a result; and we also consider the operation of Regulation 11 of the Package Travel and Linked Travel Arrangements Regulations 2018 where visa requirements prevent travel.

Meanwhile, our extensive cocktail tastings have come to an end (and not a moment too soon), with the team narrowly favouring the simple perfection of the Deka in the Afternoon - a potent mixture of absinthe and champagne - over the siDEKAr or the classic Tom Collins. Remarkably, this makes it two for two for Nathanial Martindale of Plexus; an accolade to be proud of, and one we will no doubt be toasting over the Summer, should it ever arrive.

When will negligent surgical treatment breach the chain of causation?

Jenkinson v Hertford County Council [2023] EWHC 872 (KB) is a decision that may leave many personal injury practitioners questioning what they thought they knew about the chain of causation.

The claim arose out of a tripping accident in which the Claimant suffered a nasty ankle fracture. Shortly before the first CCMC, the Defendant's expert produced a report in which he opined that the surgical treatment of the fracture, while it was the correct intervention, had been performed negligently. Had it not been, the Defendant's expert was of the opinion that the Claimant would have made a reasonable recovery with a return to work within 3-6 months. In fact, the Claimant had had a very poor outcome involving 6 further surgeries and consideration of amputation.

The Defendant applied for and was refused permission to amend its Defence to deny that it could be held responsible for injury, loss and damage arising from negligent treatment of the Claimant's original injury. They alleged that responsibility for this rested with the NHS Trust. Further or alternatively, any chain of causation had been broken by negligent treatment, which constituted a novus actus interviens. It was that refusal of permission which was the subject of the appeal before Baker J.

The judge refused permission on the ground that the proposed amended Defence did not have a real prospect of success. This was because he considered that Webb v Barclays Bank and Portsmouth Hospitals NHS Trust[2001] EWCA Civ 1141 establishes as a rule of law that medical treatment of an injury caused by a defendant's tort cannot break the chain of causation unless it is such grossly negligent treatment as to be a completely inappropriate response to the injury ("the Specific Rule"). He found that there was no prospect of the Defendant satisfying the Specific Rule.

Webb was also a tripping case in which the Claimant had, after her injury, wrongly been advised to undergo above knee amputation. In an appeal relating to Barclays' contribution claim against the NHS Trust, the Court of Appeal ruled:

"52. ... The question here is whether, when an employee is injured in the service, and by the negligence, of...