Boyes Turner’s expert serious injury lawyers have successfully resolved a claim for a lady who suffered a serious shoulder injury, which will permanently restrict her ability to work. Client’s workplace injury and initial allegations Our client worked in a supermarket and was regularly made to lift heavy items above shoulder height, with no assistance from colleagues. While they admitted that they were at fault, they alleged that our client’s ongoing symptoms were, in fact, due to surgery that she had to her shoulder a year after she had to stop working. They alleged that the surgery was performed negligently and that it ‘broke the chain of causation’. This means that a subsequent negligent act or omission intervenes and worsens the effects of an injury caused by the previous negligent act or omission. While we had to bring the hospital trust into proceedings in order to protect our client’s position, we were ultimately able to argue that there was little to suggest that the surgery had been carried out negligently, let alone that it broke the chain of causation. Our client’s claim settled for £240,000 after they had previously argued that it was worth no more than £60,000 due to the supposed break in the chain of causation. ‘Gross negligence’ and the chain of causation The law in cases where a Claimant has sustained injuries in an accident caused by the negligence of a third party (and has then subsequently had negligent medical treatment) was that such treatment is not necessarily sufficient to break the chain of causation. Rather, it was necessary to show that the treatment was so grossly negligent as to be a completely inappropriate response to the original injury. In the case of Webb v Barclays Bank Plc and Portsmouth Hospitals NHS Trust (2002), Henry LJ cited and agreed with the following passage from Clerk & Lindsell (18th Edition 2-55); “Moreover, it is submitted that only medical treatment so grossly negligent as to be a completely inappropriate response to the injury inflicted by the defendant should operate to break the chain of causation”. This is a high bar and our position was always that there was nothing to suggest that the surgery our client had was a completely inappropriate response to her original injury. However, the position may now have changed, following a decision in Jenkinson v Hertfordshire CC (2023). The Claimant in that case suffered a right ankle fracture after stepping into an uncovered manhole cover. The Claimant pursued a claim against the council, but they applied to amend their Defence to plead that subsequent negligent treatment had broken the chain of causation. The application was refused at first instance, but then allowed in the High Court by Baker J. He stated that there is no reason why there should be a distinct rule in cases of negligent medical intervention and appears to have reframed the test as to whether the Claimant was “so badly mistreated that the Defendant [i.e. the council] ought not, in fairness, to be considered responsible for the consequences of that mistreatment”. Implications for Future Cases While High Court judges are not technically bound by the decisions of their peers, it is generally accepted that they should follow such decisions unless there are powerful reasons for not doing so. As such, unless the test is subsequently overturned by a higher court, it seems likely that this will be the approach from now on. If you have suffered serious injury as a result of an accident and would like to find out more about rehabilitation and making a claim, you can talk to one of our experienced solicitors, free and confidentially, by contacting us here.
