Breaking the chain of Causation: no ‘special rule’ for Negligent Medical Treatment
In Jenkinson v Hertfordshire County Council  EWHC 872 (KB), the High Court have provided guidance as to when negligent medical treatment will break the chain of causation. To sum up the case in a nutshell, the High Court clarified that negligent medical treatment is to be treated exactly the same as any other potential intervening act; there is no special rule (as was previously thought) that the treatment had to be ‘grossly negligent’ before it would break the chain of causation.
Mr Jenkinson badly fractured his ankle when his foot entered an uncovered manhole or drain gully. Breach of duty was admitted by the Council but the extent of the injury and causation were disputed.
Mr Jenkinson had surgery on his ankle. The Council’s medical expert opined that the surgery had been performed negligently and that, as a result, Mr Jenkinson’s prognosis was much worse than it should have been. According to the Council’s expert, Mr Jenkinson should have made a relatively full recovery from the ankle injury, but instead had to undergo six further surgeries.
The Council applied to add the relevant NHS Trust and amend its defence to include the assertion that the negligent treatment had broken the chain of causation between the accident and the Claimant’s poor outcome.
The application to amend was refused by District Judge Vernon, who directed himself that, ‘in cases where alleged negligent medical treatment is given to address injuries sustained as a result of an earlier tort, only medical treatment so grossly negligent as to be a completely inappropriate response to the injury inflicted by the defendant should operate to break the chain of causation.’
District Judge Vernon derived that proposition from Webb v Barclays Bank and Portsmouth Hospitals NHS Trust  EWCA Civ 1141. In effect, District Judge Vernon was of the view that Webb was authority for the proposition that it was only in situations where the medical treatment was so grossly negligent as to be a completely inappropriate response that the chain of causation between the Defendant and the Claimant could be broken.
The High Court examined the decision in Webb and the earlier case law to determine whether District Judge Vernon directed himself correctly. Webb was a case about what contribution to damages (if any) should be paid by an NHS trust who had negligently advised Mrs Webb to have an above-knee amputation after falling at work.
The Court of Appeal identified that there was no general rule on the question of whether the liability of an employer to its employee for negligence is terminated by the intervening negligence of a doctor who treated the original injury. The Court of Appeal went on to approve a reference in Clerk & Lindsell on Torts which stated, ‘Moreover, it is submitted that only medical treatment so grossly negligent as to be a completely inappropriate response to the injury inflicted by the defendant should operate to break the chain of causation.’
The Court of Appeal in Webb went on to make the finding that the doctor’s negligence did not eclipse the employer’s original wrongdoing. In reaching that decision, the Court of Appeal considered that the original wrong-doing remained a causative force; that the medical intervention was plainly foreseeable; and that the doctor’s conduct was negligent but not grossly negligent. Notably, it can be seen that the Court of Appeal considered more factors than simply whether or not the doctor’s conduct was negligent or grossly negligent.
The High Court decided that there was no such rule of law as set out by District Judge Vernon. It noted that there was no logical justification for creating a specific rule of law in the context of negligent medical intervention. It anticipated that such a rule would be a recipe for litigation over the side-issue of determining when treatment is so poorly executed that it becomes an inappropriate response to the original injury.
The High Court decision must be correct. The issue of whether or not an intervening act has broken the chain of causation is one which requires consideration of a multitude of factors. The court has to make an assessment as to whether or not the ultimate damage is damage for which the original tortfeasor should be responsible. It is not a question for which bright-line rules of law are suitable, nor is there any apparent reason why intervening acts performed in the context of medical treatment should form a special category of their own.