Chester v Afshar
A surgeon who failed to warn of a small risk was liable when the risk materialised, even though the patient would have had the operation later anyway, to protect the patient's right to make an informed choice.
Facts
Miss Chester suffered from back pain, and was advised by Mr Afshar, a neurosurgeon, to have an operation. He did not warn her of a small risk, of about 1 to 2 per cent, of cauda equina syndrome, which could cause paralysis. The operation was performed without negligence, but the risk materialised and she was partly paralysed. She said that, if she had been warned, she would not have had the operation then, but would have sought further advice, although she might have had it later, with the same risk.
Legal principle
The House of Lords held, by a majority of three to two, that Mr Afshar was liable. Lord Steyn said that the claimant's right of autonomy and dignity required that she be informed of the risk, and that, on policy grounds, the normal requirements of causation should be modified to give effect to the purpose of the duty to warn. Lord Hope said that the injury was within the scope of the doctor's duty, and that the function of the law is to protect the patient's right to choose. Lord Bingham and Lord Hoffmann dissented, saying that the failure to warn had not caused her injury, because the risk would have been the same whenever the operation took place.
Related cases on causation
- Baker v Willoughby [1970] AC 467
- Barker v Corus UK Ltd [2006] UKHL 20, [2006] 2 AC 572
- Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428
- Bonnington Castings Ltd v Wardlaw [1956] AC 613
- Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32
- Gregg v Scott [2005] UKHL 2, [2005] 2 AC 176
- Hotson v East Berkshire Area Health Authority [1987] AC 750
- Jobling v Associated Dairies Ltd [1982] AC 794
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