‘With great power comes great responsibility’ – contributory negligence post-Montgomery
21 August 2019
Matthew Fisher is a doctor and aspiring barrister with an interest and experience in MedTech.
Regardless of whether one attributes this famous quote to Voltaire or Spider-Man, the sentiment is the same. Power and responsibility should be in equilibrium. More power than responsibility leads to decision-making with little concern for the consequences and more responsibility than power leads to excessive caution. This article argues that there is now a disequilibrium in the NHS, which is the root cause for defensive medical practice and the growing NHS litigation bill.
Montgomery v Lanarkshire affirmed a transition from patients as passive receivers of care to active consumers by making the collaborative patient-doctor relationship a legally enforceable right. However, as yet patients are not expected to share responsibility for a negative outcome. Medical paternalism may now be dead but judicial paternalism appears to be alive and well. However, contributory negligence is a necessary counter-weight in this balance and it must urgently be applied to restore equilibrium.
In 2005 the annual cost to the NHS of settling clinical negligence claims was £500 million. Today it is £2.2 billion, with estimated future liabilities of £65 billion. To prevent the further diversion of NHS resources from frontline healthcare to the settlement of negligence claims, patients must accept greater responsibility for their choices, even when they have negligently been subjected to harm.
Contributory negligence occurs when the claimant has contributed to his own damage and is governed by the Law Reform (Contributory Negligence) Act 1945. This provides that when the court finds fault on the part of the claimant it should apportion damages to the extent it thinks “just and equitable having regard to the claimant’s share in the responsibility for the damage”.
Lord Denning defined contributory negligence in Froom v Butcher as
a man’s carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable prudent man, he might hurt himself.
Therefore, a precondition for finding contributory negligence is the foreseeability of harm to oneself. For this reason, contributory negligence has been used extensively in road traffic accidents where claimants have neglected to wear a seat belt or crash helmet. It is also why contributory negligence is not considered an appropriate defence against claims made by children.
In English law, there is only one successful application of contributory negligence in a medical context – Pidgeon v Doncaster Health Authority  Lloyd’s Rep Med 130. There are three reasons for this:
- Medical paternalism
- A reluctance to shift blame from negligent doctors onto unfortunate patients
- A lack of case law
Arguably the main reason for the absence of contributory negligence is the traditional, paternalistic patient-doctor relationship. The doctor assumes a parental role and instructs the patient, who like a child must passively accept. Therefore, it is not right to put blame on the patient if things go wrong.
However, the era of deference to doctors and other authority figures is over, a change Lord Woolf touched on when saying extra-judicially that
the public’s expectations of what the [medical] profession should achieve have grown. Like it or not, we have moved from a society which was primarily concerned with the duty individuals owed to society to one which is concerned primarily with the rights of the individual.
This change in society was reflected in Montgomery, which upheld the principle of patient autonomy, ruling that patients are “consumers exercising choices” and not “the passive recipients of the care of the medical profession”. In a sense, society has grown up and entered adulthood, enjoying greater rights but equally needing to accept greater responsibility. Therefore, in an appropriate case, a patient’s carelessness should no longer be considered an unwitting mistake but rather it should be seen in a similar context to that of a motorist who chooses not to wear a seat belt.
The Blame Game
Arguing contributory negligence is essentially an effort to shift blame from the negligent doctor onto the unfortunate patient. For this reason, it can appear an unattractive argument, a point Pidgeon v Doncaster illustrates well.
That case involved a claimant whose smear test in 1988 had been negligently reported as negative when in fact it was positive. The claimant found smear testing embarrassing and painful and because of this she refused to have further tests, despite frequent reminders from the Health Authority. Unfortunately, in 1997 she was diagnosed with cervical cancer.
The question for the court to determine was whether her behaviour had been so unreasonable that it had broken the chain of causation, or alternatively whether it amounted to contributory negligence.
It was found that she had not broken the chain of causation because she was unaware of the original positive smear test and had determined a course of action based on incorrect information. The judge made a distinction between a claimant who indulges in behaviour against a background of known vulnerability (such as a broken leg) and one who fails to take steps which may reveal a condition they had previously been reassured was not present.
However, the court held that whilst the claimant had negligently suffered harm, she had also omitted to take precautions for her own safety. Damages were reduced by two thirds in light of this contributory negligence. There is something distasteful in finding a woman partially responsible, when but for the Health Authority’s negligence she would not have died at a young age of cervical cancer, but in a state-funded health system with finite resources, is it reasonable for such claimants to be fully compensated with a the result that others may be restricted or prevented from accessing healthcare?
Lack of Case Law
Contributory negligence is rarely argued in a medical context due to a lack of case law. However, in the United States, Canada and Australia it is being used with increasing vigour and is now often considered routine. In these jurisdictions, the principle of patient autonomy has existed for far longer. In fact, the test for the materiality of risk from Montgomery is derived from the Australian High Court case of Rogers v Whitaker (1992). English law has been slow to reject medical paternalism and accept the principle of patient autonomy, which perhaps explains the absence of patient autonomy’s counter weight — the possibility of a finding of contributory negligence.
Contributory negligence in other jurisdictions
There are several cases from these jurisdictions where contributory negligence has been successfully pleaded, which in English law would likely have resulted in the claimant being fully compensated.
Brushett v Cowan, a Canadian case, involved a claimant who had suffered a knee injury and was advised by the defendant orthopaedic surgeon to have a muscle biopsy. She also consented to “such further or alternative measures as may be found necessary during the course of the operation”, which the surgeon relied upon when in addition he performed a bone biopsy.
Post-operatively the claimant was given crutches but was not warned to keep weight off the leg. While she was not using the crutches the leg broke at the site of the bone biopsy. It was only at this point the claimant discovered that a bone biopsy had been performed. She brought a claim for negligence, arguing that she had not been warned to keep weight off the leg.
The court allowed a claim for negligence but reduced damages by 20% for contributory negligence. Whilst the surgeon had not alerted the claimant to the dangers of failing to use the crutches, it was found that he did order them for her. There is an implication when providing crutches that they should be used and the reasonable course of action would have been to make enquiries to determine the proper use of crutches in her circumstances. The claimant is required to do what is reasonable for her own safety and in failing to do so she had been contributorily negligent.
Undoubtedly, the defendant had been negligent and in English law the claimant would almost certainly have been fully compensated. However, Brushett is a reminder that patient autonomy confers rights as well as obligations.
Darnley and the differing attitudes of the appellate courts
Darnley v Croydon NHS Trust, in which Philip Havers QC of One Crown Office Row appeared, illustrates a difference in the attitudes of the higher courts in this regard.
Mr Darnley attended Croydon’s Emergency Department after suffering a head injury and was informed by a receptionist that there was a four to five hour wait to be seen. This information was incorrect because the hospital had a head injury pathway which required these patients to be triaged within thirty minutes. Mr Darnley chose to leave after 19 minutes without a medical assessment. Later that evening he became acutely unwell secondary to an extra-dural haematoma, which resulted in a permanent hemiparesis.
In a judgment which implicitly recognised that an autonomy-focused approach affects patients as well as practitioners, the Court of Appeal dismissed the claim. It was apparent that the court was reluctant to impose further liabilities on an already overburdened health service. But significantly it also found that Mr Darnley had acted unreasonably in deciding to leave, breaking the chain of causation. The implication is that adults with capacity must bear responsibility for the consequences of the decisions they make.
However, the Supreme Court overturned this decision (covered on the Blog here), finding the receptionist negligent and that the actions of Mr Darnley were not so unreasonable as to have broken the chain of causation. This final ruling suggested that the autonomy-focused approach only had implications for practitioners.
The problem with the current approach is that it appears that an act must be so unreasonable as to break the chain of causation – it is all or nothing. This unfairly favours claimants in clinical negligence disputes.
An alternative argument of contributory negligence in Darnley and similar cases seems necessary. Mr Darnley’s decision to attend the Emergency Department suggests that he appreciated that his condition was potentially serious and required prompt medical assessment with the possibility of a hospital admission. Like in the case of Pidgeon, he determined a course of action based on incorrect information for which reason his claim succeeded. But in choosing to leave after only 19 minutes, had he failed to take reasonable precautions for his own safety?
Contributory negligence traditionally has had little relevance in a medical context due to a culture of medical paternalism, an aversion to reducing the liability of negligent doctors and a lack of case law. However, the first reason is no longer relevant post-Montgomery, the second is unreasonable given the financial pressures on the NHS and the third is a matter for practitioners to remedy in appropriate cases.
In a free society, individual autonomy should be sacrosanct and following Montgomery this has been recognised in a medical context. However, autonomy confers both rights and responsibilities, the former without the latter leads to a power – responsibility disequilibrium. To balance the scales English law must make greater use of contributory negligence. It is now for the judiciary to assume the role of Spider-Man’s Uncle Ben and remind claimants that with great power comes great responsibility.
Fantastic and insightful piece of jurisprudence. You will go far. The writing was on the wall even before Montgomery as seen in Chester v Afshar – where the rules of causation and, a you put it so well, power-responsibility equilibrium is unbalanced for admittedly important policy reasons
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