In Pomphrey v Secretary of State for Health and another, Mr. Pomphrey made a claim against the Defendants alleging a failure to diagnose compression of the cauda equina nerve roots and a delay in operating to decompress his spine. During the operation to decompress the spine the Claimant sustained a dural tear which it was accepted was a non-negligent complication of the surgery.

All of the allegations of breach of duty were dismissed, save for a finding that there had been a 10 day delay between the decision to operate and the operation itself.

As to causation, the Claimant invited the court to follow the approach in Crossman v. St George’s NHS Trust [2016] EWHC 2878; i.e. that as the operation carried a small risk of a dural tear had the Claimant undergone surgery on a different date that complication would have been avoided. HHJ Cotter QC rejected the Claimant’s case on causation both on the facts and on the law.  On the facts he found that as there were no material variable factors the dural tear would have occurred had surgery been performed on an earlier occasion. As to the law, he found that it was difficult to reconcile the decision in Crossman with the unanimous views of the House of Lords in Chester v Afshar [2005] 1 AC 174 as to the problems with reliance upon conventional causation principles in such circumstances (i.e. where there had been no material alteration in risk).   Moreover, he found that the effect of the Court of Appeal’s decision in Khan v MNX [2018] EWCA Civ 2609 as to the limitations of ‘but for’ causation given scope of duty considerations was impliedly to overrule the decision in Crossman.

Andrew Kennedy was instructed by Stuart Keyden of DAC Beachcroft for the defendant. Read more about the case below:

  • Lawtel (paywall)
  • ‘Learned Friend’ blog
  • 1COR Quarterly Medical Law Review (released 20th May)’

If you are interested in this topic and want to learn more, we are holding a seminar on ‘Scope of Duty and Causation: Chester v Afshar revisited’ on 6th June 2019.
For more details and to RSVP, please contact Olivia Kaplan.