Knee Injury in UK Law

Much reference was made by Mr Cogley to Lord Hoffmann's example of the mountaineer in his speech in SAAMCO (at 213). The importance of that example is that it illustrates the significance of the scope of a defendant's duty for the purpose of questions of causation and remoteness. A mountaineer is told by his doctor that his knee is fit for a mountain climb, but the doctor is negligent, ie the knee is not fit.

But what does the mountaineer's example teach us in the present case?

In cases such as the present, however, it simply cannot be said that the injury suffered had nothing to do with the problem which had taken the claimant to the doctor. It was a consequence of that very problem and the doctor's attempt to put it right. Furthermore it was a consequence about which the claimant had expressed her concern to the doctor and been wrongly reassured.

Consistency is important, because it assists in achieving justice between one claimant and another and one defendant and another. It also assists to achieve justice by facilitating settlements. The courts have become increasingly aware that this is in the interests of the litigants and society as a whole, particularly in the personal injury field. It is for this reason that the introduction of the guidelines by the Judicial Studies Board ("JSB") in 1992 was such a welcome development.

When the question is the level of damages for non-pecuniary loss the Court is engaged in a different exercise. As we have said, it is concerned with determining what is the fair, reasonable and just equivalent in monetary terms of an injury and the resultant PSLA. The decision has to be taken against the background of the society in which the Court makes the award.

A mountaineer about to undertake a difficult climb is concerned about the fitness of his knee. He goes to a doctor who negligently makes a superficial examination and pronounces the knee fit. The climber goes on the expedition, which he would not have undertaken if the doctor had told him the true state of his knee. He suffers an injury which is an entirely foreseeable consequence of mountaineering but has nothing to do with his knee.