Hotson (A.P.) v East Berkshire Health Authority
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bridge of Harwich,Lord Brandon of Oakbrook,Lord Mackay of Clashfern,Lord Ackner,Lord Goff of Chieveley |
| Judgment Date | 30 July 1987 |
| Judgment citation (vLex) | [1987] UKHL J0730-2 |
| Court | House of Lords |
[1987] UKHL J0730-2
Lord Bridge of Harwich
Lord Brandon of Oakbrook
Lord Mackay of Clashfern
Lord Ackner
Lord Goff of Chieveley
House of Lords
My Lords,
The respondent plaintiff is now 23 years of age. On 26 April 1977, as a schoolboy of 13, whilst playing in the school lunch hour he climbed a tree to which a rope was attached, lost his hold on the rope and fell some 12 feet to the ground. He sustained an acute traumatic fracture of the left femoral epiphysis. Within hours he was taken to St. Luke's Hospital, Maidenhead, for which the appellant health authority ("the authority") was responsible. Member of the hospital staff examined him, but failed to diagnose the injury and he was sent home. For five days he was in severe pain. On 1 May 1977 he was taken to the hospital once more and this time X-rays of his hip yielded the correct diagnosis. He was put on immediate traction, treated as an emergency case and transferred to the Heatherwood Hospital where, on the following day, he was operated on by manipulation and reduction of the fracture and pinning of the joint. In the event the plaintiff suffered an avascular necrosis of the epiphysis. The femoral epiphysis is a layer of cartilage separating the bony head from the bony neck of the femur in a growing body. Avascular necrosis results from a failure of the blood supply to the epiphysis and causes deformity in the maturing head of the femur. This in turn involves a greater or lesser degree of disability of the hip joint with a virtual certainty that it will in due course be aggravated by osteoarthritis developing within the joint.
The plaintiff sued the authority, who admitted negligence in failing to diagnose the injury on 26 April 1977. Simon Brown J., in a judgment delivered on 15 March 1985 [1985] 1 W.L.R. 1036, awarded £150 damages for the pain suffered by the plaintiff from 26 April to 1 May 1977 which he would have been spared by prompt diagnosis and treatment. This element of the damages is not in dispute. The authority denied liability for any other element of damages. The judge expressed his findings of fact as follows, at pp. 1040-1041:
"(1) Even had the health authority correctly diagnosed and treated the plaintiff on 26 April there is a high probability, which I assess as a 75 per cent. risk, that the plaintiff's injury would have followed the same course as it in fact has, that is he would have developed avascular necrosis of the whole femoral head with all the same adverse consequences as have already ensued and with all the same adverse future prospects. (2) That 75 per cent. risk was translated by the health authority's admitted breach of duty into an inevitability. Putting it the other way, their delay in diagnosis denied the plaintiff the 25 per cent. chance that, given immediate treatment, avascular necrosis would not have developed. (3) Had avascular necrosis not developed, the plaintiff would have made a very nearly full recovery. (4) The reason why the delay sealed the plaintiff's fate was because it allowed the pressure caused by haemarthrosis — the bleeding of ruptured blood vessels into the joint — to compress and thus block the intact but distorted remaining vessels with the result that even had the fall left intact sufficient vessels to keep the epiphysis alive (which, as finding (1) makes plain, I think possible but improbable) such vessels would have become occluded and ineffective for this purpose."
On the basis of these findings he held, as a matter of law, that the plaintiff was entitled to damages for the loss of the 25 per cent. chance that, if the injury had been promptly diagnosed and treated, it would not have resulted in avascular necrosis of the epiphysis and the plaintiff would have made a very nearly full recovery. He proceeded to assess the damages attributable to the consequences of the avascular necrosis at £46,000. Discounting this by 75 per cent., he awarded the plaintiff £11,500 for the lost chance of recovery. The authority's appeal against this element in the award of damages was dismissed by the Court of Appeal (Sir John Donaldson M.R., Dillon and Croom-Johnson L.JJ.) on 14 November 1986 [1987] 2 W.L.R. 287. The authority now appeal by leave of your Lordships' House.
I would observe at the outset that the damages referable to the plaintiff's pain during the five days by which treatment was delayed in consequence of failure to diagnose the injury correctly, although sufficient to establish the authority's liability for the tort of negligence, have no relevance to their liability in respect of the avascular necrosis. There was no causal connection between the plaintiff's physical pain and the development of the necrosis. If the injury had been painless, the plaintiff would have to establish the necessary causal link between the necrosis and the authority's breach of duty in order to succeed. It makes no difference that the five days' pain gave him a cause of action in respect of an unrelated element of damage.
Before examining the judge's findings more closely, it is necessary to say something of the conflict of expert medical evidence which the judge had to resolve. The evidence is highly technical and not altogether easy to follow. But at least this much is clear, that the failure of the blood supply to the epiphysis which caused the avascular necrosis could itself only have been caused in one of two ways: either the injury sustained in the fall caused the rupture of such a high proportion of the vessels supplying the epiphysis with blood that necrosis was bound to develop, or the blood vessels remaining intact were sufficient to keep the epiphysis alive but were subsequently occluded by pressure within the joint caused by haematoma (bruising) or haematosis (bleeding into the joint).
The plaintiff's expert witness was extremely tentative in his view as to the part which the delay in treatment may have played in causing avascular necrosis. In his evidence in chief he described the risk of the plaintiff suffering avascular necrosis even if promptly treated as "very considerable" and "very high." He said:
"Statistically, on reports published, he had a marginally better chance of escaping it than having avascular necrosis had it been treated expeditiously."
He was asked:
"Was there a chance, if the condition had been diagnosed and treated promptly, that no avascular necrosis would have occurred at all in any part?"
He replied: "There was a small chance, yes." But he also said that the delay in treatment had made the development of total avascular necrosis of the epiphysis inevitable. His first three answers to questions put to him in cross examination were as follows:
"Q. As I understand it, Mr. Bucknill, you accept that even if there had been no delay, it is likely that there would have been avascular necrosis of the whole head? A. Yes, indeed. Q. And so the probabilities are that the delay in this case made no difference to the eventual outcome of this head? A. As I said, I think it made it inevitable that avascular necrosis occurred rather than likely. Q. In other words, what was always a probability became inevitable? A. Yes."
Later he modified these answers. He said that, given prompt treatment, he thought avascular necrosis was "likely but not probable." He explained that by "likely" he meant about a 40 per cent. chance, by "probable" he meant something over 60 per cent. He also explained his view that delay would have made a total avascular necrosis inevitable by the occlusion of intact blood vessels resulting from haematoma.
By contrast the authority's expert witness was emphatic, even dogmatic, in his evidence. His opinion was that the initial traumatic rupture of the blood vessels caused by the fall must have been so extensive that avascular necrosis was bound to result. He rejected the theory that the failure of the blood supply could be attributed to a haematoma, a condition which, in his opinion, would not occur in this injury. In this connection he distinguished between a haematoma and a haematosis, a condition which could occur in this injury but which would not, in his opinion, occlude intact blood vessels.
The judge indicated his assessment of these two witnesses as follows:
"I regret that I found certain parts of the evidence of both experts, highly qualified and experienced although they both undoubtedly are, difficult to accept, either as a result of internal inconsistency within their evidence or because of what seemed to be an intrinsic want of logic in some particular expressed view. I recognise that the explanation for this may well lie in the deficiencies of my own medical understanding, but the forensic process requires only that I do my best. In the result I find myself unattracted to, and finally unable to accept, either of the competing extreme views.
In analysing the issue of law arising from his findings the judge said [1985] 1 W.L.R. 1036, 1043-1044:
"In the end the problem comes down to one of classification. Is this on true analysis a case where the plaintiff is concerned to establish causative negligence or is it rather a case where the real question is the proper quantum of damage? Clearly the case hovers near the border. Its proper solution in my judgment depends upon categorising it correctly between the two. If the issue is one of causation then the health authority succeed since the plaintiff will have failed to prove his claim on the balance of probabilities. He will be lacking an essential ingredient of his cause of action. If, however, the issue is one of quantification then the plaintiff succeeds because it is trite law that the quantum of a recognised head of damage must be evaluated according to the chances of the loss occurring."
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