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Chester v Afshar [2004] 3 WLR 927 House of Lords

The claimant had suffered back pain for 6 years. This became quite severe and at times she was unable to walk or control her bladder. An MRI scan revealed that there was disc protrusion into her spinal column and she was advised to have surgery. The surgery carried a 1-2% risk that even if it was performed without negligence the operation could worsen rather than improve her condition. Her consultant neurosurgeon Mr Afshar was under a duty to warn her of this risk although he failed to do so. The claimant had the operation and unfortunately it worsened her condition. The trial judge found that the surgeon had not been negligent in performing the operation but his failure to warn her of the risk was a breach of duty. The claimant argued that if she had been warned she would not have taken the decision to have the operation straight away but would have taken time to consider other options and discuss the risks with her family and would thus not have had the surgery on the day which she did have it. She did not say she would never have had the operation. The judge held that if she had the operation on another occasion it may have been successful. He therefore found for the claimant. The defendant appealed. The Court of Appeal dismissed the appeal and the defendant appealed to the House of Lords on the grounds of causation in that she was likely to have consented to the operation and that even if it had been on a different occassion it carried the same risk.

Held:

3:2 decision (Lord Bingham & Lord Hoffman dissenting) appeal dismissed.

Lord Hope:

"To leave the patient who would find the decision difficult without a remedy, as the normal approach to causation would indicate, would render the duty useless in the cases where it may be needed most. This would discriminate against those who cannot honestly say that they would have declined the operation once and for all if they had been warned. I would find that result unacceptable. The function of the law is to enable rights to be vindicated and to provide remedies when duties have been breached. Unless this is done the duty is a hollow one, stripped of all practical force and devoid of all content. It will have lost its ability to protect the patient and thus to fulfil the only purpose which brought it into existence. On policy grounds therefore I would hold that the test of causation is satisfied in this case. The injury was intimately involved with the duty to warn. The duty was owed by the doctor who performed the surgery that Miss Chester consented to. It was the product of the very risk that she should have been warned about when she gave her consent. So I would hold that it can be regarded as having been caused, in the legal sense, by the breach of that duty."
 
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