Fighting For A Cause

Nadia Krueger-Young examines complex causation issues in medical negligence claims.

In the well-known case of Chester v Afshar [2004] UKHL 41, the claimant’s risk of suffering cauda equina syndrome during the surgery she underwent was 1-2%. If she had had the surgery, say, three months later, the risk would have been the same. It was therefore held by a majority in the House of Lords that Miss Chester could not show that the risk of the injury would have been any different had the operation been carried out on a different occasion. Even though the risk of injury was so small, it was held that it would have occurred regardless of when the surgery had taken place. In other words, the change in the date of the surgery had not increased the risk of injury. This meant ‘but for’ causation would fail.