On Thursday 7 June the Court of Appeal handed down judgment in Duce v Worcestershire Acute Hospitals NHS Trust [2018] EWCA Civ 1307. The case concerned allegations of failure to warn of the risk of pain following hysterectomy.

At trial, the Trust (represented by Richard Mumford) was successful in establishing that the warning given satisfied the requirements set out by the Supreme Court in Montgomery v Lanarkshire Health Board and that the Claimant, even if given a different warning as to risk, would nonetheless have undergone surgery at the time she did. The claim was therefore dismissed.

The Claimant appealed the trial judge’s determination, arguing that there had been a misapplication of the test in Montgomery as well as an error in the approach to establishing causation pursuant to Chester v Afshar; furthermore, it was argued that the Judge erred in his finding of fact that the Claimant would not have deferred surgery in any event. The Court of Appeal unanimously dismissed the appeal.

Of particular interest, the Court of Appeal reaffirmed that the modified test for causation in consent cases established by Chester does not does not negate the requirement for a claimant to demonstrate a “but for” causative effect of the breach of duty and specifically that the operation would have not have taken place when it did. This was in line with the Court’s recent jurisprudence in Correia v University Hospital of North Staffordshire NHS Trust [2017] EWCA Civ 356  in which the court emphasised that if “the exceptional principle of causation” established by Chester is to be relied upon it is necessary to plead and prove that, if warned of the risk, the claimant would have deferred the operation. In addition to the leading judgment of Hamblen LJ, the judgment of Leggatt LJ contains an interesting commentary on the rationale behind the majority’s approach in Chester, including various “matters which may be thought ripe for further consideration by the Supreme Court when the opportunity arises.”

Philip Havers QC and Richard Mumford were instructed by David Roberts and Dominic Ip of Capsticks Solicitors.

Read more about the case on Lawtel here.