Edinburgh Research Explorer Duties of Care, Causation, and the Implications of Chester v Afshar Citation for published version: Hogg, M 2005, 'Duties of Care, Causation, and the Implications of Chester v Afshar', Edinburgh Law Review, vol. 9, pp. 156-67. https://doi.org/10.3366/elr.2005.9.1.156 Digital Object Identifier (DOI): 10.3366/elr.2005.9.1.156 Link: Link to publication record in Edinburgh Research Explorer Document Version: Publisher's PDF, also known as Version of record Published In: Edinburgh Law Review Publisher Rights Statement: ©Hogg, M. (2005). Duties of Care, Causation, and the Implications of Chester v Afshar. Edinburgh Law Review, 9, 156-67doi: 10.3366/elr.2005.9.1.156 General rights Copyright for the publications made accessible via the Edinburgh Research Explorer is retained by the author(s) and / or other copyright owners and it is a condition of accessing these publications that users recognise and abide by the legal requirements associated with these rights. Take down policy The University of Edinburgh has made every reasonable effort to ensure that Edinburgh Research Explorer content complies with UK legislation. If you believe that the public display of this file breaches copyright please contact [email protected] providing details, and we will remove access to the work immediately and investigate your claim. Download date: 01. Oct. 2021 156 the edinburgh law review Vol 9 2005 Civilian, on the point raised in this case, than the modern codified Civilian systems; both go far to protect the owner’s right through general insistence on the Romanist nemo dat quod non habet. In the modern Civil Law world policy-driven diversity is the norm. A compelling argument for harmonisation is the problem of title laundering by transporting valuable moveables to favourable legal regimes. D L Carey Miller Professor of Property Law University of Aberdeen Professor Kenneth Reid most kindly made helpful comments on an earlier version but the author alone is responsible for this paper. EdinLR Vol 9 pp 156–167 Duties of care, causation, and the implications of Chester v Afshar A. INTRODUCTION In its decision in Chester v Afshar,1 a 3:2 majority of the House of Lords held that the scope of a doctor’s duty to warn his patient of a non-negligible risk inherent in surgery extends to liability for personal injuries sustained by the patient as a result of the actuation of such risk. Where the warning required by the duty is not given, the patient may claim in damages for the injuries sustained, even although, on normal causal principles, she cannot show that she would not have undertaken the surgery at some later date had the warning been given. The course adopted by their Lordships is one which had already been charted by the High Court of Australia in Chappel v Hart,2 a decision to which the majority of the Judicial Committee made extensive reference. This result may cause consternation in some circles, particularly medical ones, although it is one for which there has been advocacy from leading legal academics.3 Opposition is likely to centre upon concerns about the alleged lack of a causal connection between the doctor’s breach of duty and the injuries suffered by the patient, concerns which were given primacy by the minority. If Miss Chester was unable to prove on the balance of probabilities that she would not have had the surgery on being warned of the risks of the injury (in this case, a condition known as cauda equine syndrome, “CES” for short), then she could not prove that but for the doctor’s failure to warn she would not have been in the same position. I wish to argue that the decision reached in Chester v Afshar is not explicable 1 [2004] All ER (D) 164, [2004] UKHL 41. 2 (1985) 195 CLR 232. 3A Honoré, “Medical non-disclosure, causation and risk: Chappel v Hart” (1999) 7 Torts LJ 1; A Grubb, “Clinical negligence: informed consent and causation”, (2002) 10 Med L Rev 322; J Stapleton, “Cause-in- fact and the scope of liability for consequences” (2003) 119 LQR 388. Vol 9 2005 analysis 157 primarily by reference to causation at all.4 Rather, a proper explanation of the decision lies in the formulation given by the majority of the scope of the duty of care undertaken by the doctor towards his patient. Because the majority defined the scope of the duty as extending to injuries which were encompassed within the very risk of which the doctor was required to warn, difficulties with the causal connection between breach of the duty and the harm ensuing were thereby overcome at the duty level. The result was that the majority felt it unnecessary to explain the precise causal connection in anything other than the vaguest terms, and certainly without the need to have recourse to any of the traditional tests of causation-in-fact.5 The explanation of the decision thus lies in a normative conclusion of their Lordships (the doctor ought to be liable for this injury) rather than in a causative one (the doctor caused this injury). B. THE SCOPE OF THE DUTY OF CARE TO WARN OF RISKS INHERENT IN MEDICAL TREATMENT A number of duties of care are imposed upon doctors in relation to their patients, most obviously the duty carefully to diagnose and treat patients’ medical complaints. There is, more to our purposes here, a duty to warn a patient who is contemplating a surgical procedure of any non-negligible risks attendant upon such procedure.6 The question of what foreseeable consequences should fall within the scope of that duty was the issue which the House of Lords had to address in Chester v Afshar.7 In order to answer this enquiry, the majority considered why the duty exists in the first place. Lord Hope, delivering the leading judgment, emphasised the primacy of patient autonomy. The duty to warn exists partly to enable a patient to make up her own mind as to whether or not to have the surgery.8 If, therefore, the duty is broken, one type of loss which properly falls to be considered within the scope of the duty is a diminution of patient autonomy. In Miss Chester’s case this manifested itself in the loss of opportunity to consider, and perhaps take, an alternative course of action (whether not to have the surgery, or to have it performed at a different time or by a different surgeon). Lord Hope also gave a second rationale for the existence of the duty. His Lordship cited approvingly Honoré’s comments, following the decision in Chappel v Hart, that the duty is intended to minimise the risk to the patient.9 Exposure to, or increased exposure to, risk is thus a second type of harm which falls within the scope of the duty. However, Miss Chester’s claim was not expressed in terms either of loss of oppor- tunity or exposure to risk. Her claim was in respect of the personal injuries suffered by 4Cf Lord Bingham, at para 1: “The central question in this appeal is whether the conventional approach to causation in negligence actions should be varied…”; Lord Hope, at para 40: “The issue is essentially one of causation.” 5 The traditional tests of causation-in-fact being the but-for (or sine qua non); the material contribution; and the material increase in risk tests. 6 Sidaway v Board of Governors of the Bethlehem Royal Hospital [1985] AC 871. See, for discussion of this duty in Chester v Afshar, Lord Hope at para 49. 7 This was so despite the insistence of the majority at a number of places that causation was the central issue of the case (see the comments noted at note 4 above). 8 See Lord Hope at para 55. 9 See Lord Hope’s comments at para 80. 158 the edinburgh law review Vol 9 2005 her and consequential losses following therefrom.10 Because of this, their Lordships had to consider whether such loss properly fell within the scope of the doctor’s duty of care. The harm of actual physical injury certainly falls within the scope of the surgeon’s duty to carry out an operation with due skill and care. As we know from the judgment at first instance, affirmed at both stages on appeal, that duty was properly performed by Mr Afshar, so that any injury which resulted from it was not caused by a breach of that duty. However, the fact that this harm falls within the scope of one duty does not necessarily prevent it from additionally falling within the scope of a further duty. The majority in Chester v Afshar conceived that the physical harm was properly to be seen as falling also within the scope of the doctor’s duty to warn. Lord Steyn, in addition to citing the protection of patient autonomy and dignity as within the scope of that duty, stated that the duty “tends to avoid the occurrence of the particular physical injury the risk of which the patient is not prepared to accept”11. This formulation puts the physical injury itself squarely within the scope of the duty. In the same vein, Lord Hope said that “there is no doubt that the injury which Miss Chester sustained when she was operated on by Mr Afshar was within the scope of his duty to warn.” 12 It is not hard to see why their Lordships thought that this should be so. The precise content of the duty of care in question is to warn against the risk of a specific physical injury, so that such physical injury will clearly be in the contemplation of the doctor when considering whether or not to warn the patient.13 The type of injury sustained is thus not in any sense merely coincidental or unrelated to the content of the duty.14 Lord Hope made the further crucial point in relation to the duty that it was “unaffected in its scope by the response which Miss Chester would have given had she been told of these risks.”15 This is of fundamental significance for understanding the determination of the case.