Clinical Negligence as Novus Actus in a Personal Injury Case

It has been commonly perceived that there is a special rule, specific to intervening clinical negligence in a personal injury case, such that the chain of causation to the negligence of the original wrongdoer will only be broken if the medical treatment in question is deemed to have been so grossly negligent as to be a completely inappropriate response to the injury which a claimant has suffered.

The notion of there being such a rule is espoused in a passage in the leading textbook, Clerk & Lindsell (within paragraph 2-124), which appeared to have been endorsed by the Court of Appeal in Webb v Barclays Bank [2001] EWCA Civ 1141.  It was, however, difficult to reconcile with the approach taken by the Court of Appeal in Rahman v Arearose [2001] QB 351.

In his judgment in Jenkinson v Hertfordshire CC [2023] EWHC 872 (KB), judgment delivered 18 April 2023, Andrew Baker J has now reviewed and rejected the notion of there being any such specific rule.  The implication of that is that the normal rules of causation (and breaking the chain) will instead apply.

The Jenkinson case involved an orthopaedic injury.  The treating surgeon reasonably and appropriately decided that operative intervention was required and decided on an appropriate form of surgery.  But, on the expert evidence obtained by the defendant, his approach was open to substantial criticisms in relation to both the surgical method adopted in performing the operation and the surgical hardware used by the surgeon, with the result that his fixation of the claimant’s fracture failed within a few days, by reason of which the claimant had to undergo extensive further surgical interventions and was left with substantially increased disability.

The defendant had been refused permission to plead a novus actus defence on the basis that there was no such arguable defence.  That was held to be wrong and permission to plead the defence was accordingly granted.  Whilst, then, this was an appeal in relation to a point on the pleadings, it is nevertheless of importance by reason of the Judge’s consideration of the underlying point of law and his conclusion that there is no “Specific Rule” such as has been propounded.

Geoffrey Brown acted on behalf of the Defendant, instructed by Philip Tracey of Plexus Law.