The Measure Of Damages

In personal injury and clinical negligence cases, the need for claimants to mitigate their losses often arises in respect of medical treatment. Can claimants reasonably refuse to undertake treatment that might improve their prognosis and, for example, their ability to return to work?

Two Privy Council rulings are important when considering this issue. In the case of Selvanayagam v University of West Indies [1983], the Privy Council ruled that the burden lies on a claimant who has refused medical treatment to prove that the refusal was reasonable. This ruling sparked immediate criticism as being inconsistent with two decisions of the House of Lords in the 1940s and consequently few defendants made submissions using the judgment.

The issue was clarified by the Privy Council in Geest Plc v Monica Lansiquot [2002]. The claimant was employed by the defendant shipping company when she injured her back as a result of catching her foot on metalwork on board a vessel.

She consulted her GP shortly after the accident complaining of pain in her back radiating to her legs. A prolapsed disc was diagnosed by a consultant neurosurgeon and, as there did not appear to be any compression of the nerve roots, conservative management was advised with a recommendation that a scan should be undertaken if the symptoms persisted. The symptoms did continue and the MRI scan revealed discal protrusion but without evidence of neural compression. The treating consultant warned that surgical options might need to be considered, including an open discectomy, but that he could not guarantee a good outcome. Laser decompression was carried out and there was some improvement in the symptoms.

Unfortunately, the claimant suffered a set back. She saw a physician and rheumatologist who both considered that open surgery was the best option, but noted that she was not keen on this and therefore advised further conservative management. Her condition did not improve and she was reviewed again. Surgery was the only treatment option available but there were no assurances that it would cure the pain. The claimant was re-examined before the damages hearing when it was noted that it was unlikely her condition would improve.

At the trial, the defendant company presented no evidence but the defendant's counsel, in his closing speech, argued that the claimant had failed to mitigate by declining the surgical option. In a written judgment, the judge accepted that argument and limited the...