Council given permission to plead ‘novus actus’ defence of clinical negligence in uncovered manhole personal injury claim

No ‘specific rule’ exists concerning medical treatment and breaking the chain of causation in personal injury cases, the High Court has found.

Mr Justice Andrew Baker was called on to rule in Jenkinson v Hertfordshire County Council [2023] EWHC 872 (KB) whether Hertfordshire could plead a novus actus defence on the basis that it was not to blame for surgical procedures that worsened Mr Jenkinson’s health.

The claimant had suffered a bad fracture to his right ankle when his foot went into an uncovered manhole in Hertford.

Hertfordshire admitted liability for negligence or breach of statutory duty under s.41 of the Highways Act 1980 but made no admission as to the extent of injury and put Mr Jenkinson to proof on quantum, while instructing its own orthopaedic expert, a Mr Macin.

He found the surgery to Mr Jenkinson’s ankle was performed negligently and that instead of him returning to work within 3-6 months after this injury his disability was more extensive.

The judge noted that whether or not the surgery was negligently performed, “it is common ground that it did not have a good outcome [as] over the course of the following three years or so, the claimant underwent six further surgeries, and has a much poorer prognosis than Mr Machin said he ought to have achieved”.

District Judge Vernon had rejected Hertfordshire’s attempt to amend its defence to make the novus actus case.

Andrew Baker J said: “In my judgment, the 'specific rule’ does not exist as a principle of law defining a necessary ingredient of a novus actus defence in the context of medical interventions. It follows that…DJ Vernon misdirected himself.”

Expanding on his reasoning, Andrew Baker J said: “Without the constraint of the ‘specific rule’ as a principle of law, in my judgment there is a real prospect on the basis of Mr Machin's opinion, if accepted at trial, of a finding that the claimant's initial injury, admittedly the result of the defendant's negligence, was so badly mistreated that the defendant ought not, in fairness, to be considered responsible for the consequences of that mistreatment.”

How far Hertfordshire’s liability might be reduced was for consideration at later stages of the case.

He concluded: “This was a straightforward case in which permission to amend should have been granted but for the view that was taken that the proposed causation defence has no real prospect of success.

“In my judgment, that view was wrongly taken, in that (a) the premise was that the 'specific rule’ exists, - i.e. a rule of law requiring proof of medical treatment so grossly negligent as to be a completely inappropriate response to the injury inflicted by the defendant, when there is no such rule of law, and (b) the conclusion was reached erroneously that there was no real prospect of satisfying that rule, because it was wrongly considered that poor quality surgery cannot turn appropriate treatment into inappropriate medical response, and the potential import of Mr Machin's evidence was not correctly identified.”

Commenting on the case Geoffrey Brown of 39 Essex Chambers, who appeared for Hertfordshire, said: “It has been commonly perceived that there is a ‘special rule’, specific to intervening clinical negligence in a personal injury case, such that the chain of causation to the negligence of the original wrongdoer will only be broken if the medical treatment in question is deemed to have been so grossly negligent as to be a completely inappropriate response to the injury which a claimant has suffered.”

He said Andrew Baker J had in the Jenkinson case “rejected the notion of there being any such ‘specific rule’” and “the implication of that is that the normal rules of causation (and breaking the chain) will instead apply”.

Mr Brown said that although this case was an appeal on a point on the pleadings, “it is nevertheless of importance by reason of the judge’s consideration of the underlying point of law and his conclusion that there is no ‘specific rule’ such as has been propounded”.

Mark Smulian