ELIZABETH ANNE WEBB v BARCLAYS BANK PLC & PORTSMOUTH HOSPITALS NHS TRUST [2001] EWCA Civ 1141

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL

DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH

DIVISION

(Mr Justice Rougier)

[2001] EWCA Civ 1141

Case No Case No: B3/2000/2072/QBENF

Venue Royal Courts of Justice, Strand,, London, WC2A 2LL

Between

ELIZABETH ANNE WEBBClaimant

BARCLAYS BANK PLC & PORTSMOUTH HOSPITALS NHS TRUST

Respondent/1st Defendant Appellant/2ndDefendant

Before

Lord Justice Henry

Lord Justice Judge

Lady Justice Hale

Paul Rees Esq, QC

(instructed by Messrs Kennedy for the

Appellant)

A Whitfield Esq, QC & Julian Matthews Esq

(instructed by

Messrs Vizards Staples & Bannister for the Respondent)

Date 16 July 2001

LORD JUSTICE HENRY:

This

[1]is the judgment of the Court. Mrs Webb, the claimant in this action was born in 1949, and contracted polio in the second year of her life. She coped with courage and determination. She took an intelligent and informed interest in her condition and its treatment, and developed a close professional relationship with her consultant, Mr Jeffrey, who is and was at all material times employed by the second defendants, the Portsmouth Hospital NHS Trust, which we will call the Trust.

[2]In 1994, while in the employ of Barclays Bank she stumbled and fell in their forecourt, tripping over a protruding stone. In this fall she hyper-extended her polio-affected left knee. What appeared to be a minor fall with her returning to work the next day triggered a disproportionate reaction. She was left with a grossly unstable knee.

[3]She consulted Mr Jeffrey. A month after the accident he wrote that she was left with a wobbly joint with poor muscle control. It needed treatment with physiotherapy, bracing (which she was resistant to because of childhood experiences with callipers) eventually looking to arthrodesis, or fusion of the joint.

[4]Mr Jeffrey decided to wait and see how matters developed. Her "knee" (created by a McEwan's osteotomy by Mr Jeffrey in 1984) was grossly unstable. Progress was poor. There was correspondence between the claimant and Mr Jeffrey between June and July. He expressed the view:

"... that with the degree of instability you have got, I do not think that anything other than a long term calliper would be any help."

She reacted indignantly, saying she did not want to go back to a calliper.

[5]At about the same time, she began to experience very severe pain in the knee. She tried a calliper. The trial was not a success. It looked ugly, the knee hinges broke, and it did nothing to alleviate her "terrible pain".

[6]She saw Mr Jeffrey on 22nd November. His only note of the consultation was "return in trouble". Mr Jeffrey then suggested (for the first time) an above-knee amputation of the left leg. The claimant did not give evidence before the judge, but he thought it "highly probable" that she was aghast at the suggestion, but prepared to accept, because of her state of mind at the time, the view that there was really nothing else to be done.

[7]Mr Jeffrey discussed the case with a colleague, Mr McLaren, who saw the claimant and her husband, and said he endorsed Mr Jeffrey's view, noting:

"I agree that amputation is the best option"

. There is no evidence that that colleague (Mr McLaren) performed any independent examination. The claimant's husband (who also did not give evidence) states in his witness statement:

"It was not an easy decision to take, and after a lost of discussion, we felt that the best option was to follow the advice given to us by Mr Jeffrey and Mr McLaren and for Elizabeth to have her leg amputated."

This was done on 22nd February 1995.

[8]On 16th May 1996 Mrs Webb commenced proceedings for damages for personal injury against her employer, the Bank, for their failure to properly maintain the forecourt where she had tripped and fallen.

[9]In the original Particulars of Claim there is no question raised as to either the necessity for or the desirability of the amputation. But in her witness statements, Mrs Webb is very disappointed in her condition. She complains of phantom pains, pains in her lower back, great depression, loss of mobility and how it has affected every aspect of her life, forcing her to depend on others.

[10]She did not realise that there was a question as to whether she should have had the amputation until her third witness statement of 31st August 1999, where she says:

"I had no reason to know there was any suggestion that I should not have had the operation until I read Professor Heatley's report of 30th March 1999."

[11]In that report Professor Heatley expresses surprise that the Portsmouth surgeons opted for amputation, doubts whether the advantages and disadvantages of an above-knee amputation and the risks of becoming wheel-chair dependent can have been spelled out to her, and concludes:

"I feel rather sad, indeed despondent, that she had ended up with an amputation, as I personally would have certainly tried a different surgical option."

Mrs Webb concludes the statement by saying:

"The knowledge that the trial in November may now have to be put off, and that I may now have to sue Mr Jeffrey, in whom I have great trust and who has done a lot for me, and will have to undergo further medical examinations has caused me significant distress and continues to do so."

[12]In July 1999 the Bank filed a draft Amended Defence. That document admitted liability for the claimant's fall, asserted that she had been negligently advised, and that had she been properly advised, she would have been unlikely to have consented to the operation, but would have elected to deal with the instability by alternate means, retaining mobility, and avoiding amputation. It is asserted that the claimant's amputation and subsequent problems were due to the intervening negligence of the Trust. Soon after this, the claimant amended her Particulars of Claim to join the Trust in the proceedings, the Bank served its Amended Defence, and on 28th March 2000 served on the Trust a Contribution Notice under Part 20.6 in respect of "any damages" it might have to pay to Mrs Webb.

[13]On 6th April 2000, four days before the hearing date for trial, the Bank settled the claimant's action for £164,874.35. That sum was in full and final settlement of all the claims for the injuries and damage sustained by her as a result of the fall, that is to say to include both the injuries and damage resulting from the fall, and those resulting from the amputation. It was the clear intention of the Bank to settle the entirety of Mrs Webb's claims, against both themselves as her employers and the Trust, while preserving their claim for contribution against the Trust as concurrent tortfeasors. Unfortunately, the paperwork was done out of sequence with the result that Mrs Webb's claim against the Trust (which was to be assigned to the Bank) was extinguished by the acceptance of the settlement before that assignment took place. But the judge was to rule that the Civil Liability (Contribution) Act, 1978 saved them (this is a point to which we must return).

[14]The trial of the contribution proceedings between the Bank and the Trust commenced on 10th April. By then of course Mrs Webb's entitlement to the agreed damages was secure. In the normal course, she might have been expected to give evidence. But in the event neither she nor her husband did so. No explanation was offered by the Bank, other than that their evidence was not necessary. The judge said that he had been handicapped in his ability to form a proper judgment in that neither Mrs Webb nor her husband had given evidence before him. For instance, he felt he could not resolve the issue of her reaction to Mr Jeffrey first raising the question of amputation. But he concluded that it was "highly probable" that she was considerably aghast at the thought of losing part of her leg, but that in her state of mind at the time, she came to accept the view of Mr Jeffrey that there was really nothing else to be done. The judge had the benefit of six witness statements taken from the claimant, but indicated (without further detail) that many questions remained unanswered, and these statements were not entirely consistent in relation to her feelings about callipers and braces (as he clarified in his judgment). He recognised that she was a woman of considerable courage and determination (as her many activities made plain) who was intelligent and well-informed as to her medical condition and its treatment. We have no idea why the Webbs did not give evidence. In our judgment, there is nothing to suggest that she would prove to have been an untruthful witness. What she said in her witness statement about not wanting to sue Mr Jeffrey appears to be a cri de cœur. One can understand her tiring of doctors and medical examinations. We accept what she there said as what she felt. We see in it nothing to suggest any hostility to Mr Jeffrey or to her employers. At the end of the day, all we can say is that we do not have the benefit of her oral testimony.

[15]A further difficulty arises in the judge's approach. At the conclusion of the evidence he indicated to counsel that he believed this was a case where the claimant was entitled to put her case as the loss of a chance. Both counsel sought to dissuade him from this course, but unsuccessfully. The judge therefore set himself the question: "... had she been given proper advice or exhortation, based on the result of investigations which should have been conducted, what would her reaction have been?" (ie would she have given consent to the operation?)

The judge then went on to quote by way of contrast the normal causation test:

"... had it been possible to say, with any certainty, what advice, based on the result of his various enquiries, Mr Jeffrey would have been in a position to give to Mrs Webb, then I accept that the right approach would be to ask whether on the balance of probabilities, the claimant succeeded in proving, either by direct evidence or by necessary inference that she would have accepted that advice, and thereby avoided amputation and its consequences."

[17]He then went on to place the blame for the evidential gaps in the Trust's case principally on Mr Jeffrey, but partly on Mrs Webb for not giving evidence:

"But the difficulty here is that we do not know what advice Mr Jeffrey would have been in a position to give. We do not know whether a proper examination, both clinical and radiological, would have revealed some bony pathology which was relatively simply curable. The reason we do not know is because Mr Jeffrey never undertook those examinations, and it is no longer possible to examine the knee. By the same token, we do not know what advice Mr Jeffrey would have been able to offer to Mrs Webb as to the range and models of braces available and the chances of ultimately being able to get one which she could tolerate, for the simple reason that such enquiries were never made. We have, therefore, a situation where the very omissions which have been proved against the defendant are those which preclude the claimant from advancing the evidence necessary to establish causation. I cannot believe that the law could possibly countenance such a manifestly unjust situation by insisting on a balance of probabilities approach in circumstances such as these. How, I might ask, could I be expected to determine the reaction of a woman whom I have never seen, to a dissertation that never took place, the contents of which could be no more than guessed at?"

[18]He then, because of the omissions he had complained of, reiterated his "loss of a chance" approach, and said that:

"... had I taken the view urged on me by counsel [ie deciding the case on the ordinary principles of causation - that is to say deciding on the balance of probabilities] although I am making no definite finding on the point, I feel bound to say that I am extremely doubtful that I should have felt entitled to infer that Mrs Webb would have accepted the suggested advice [ie to have rejected amputation in the full knowledge of relevant facts] or, that having accepted it initially, she would have persevered with the trials of orthosis which, in all probability, would have been protracted."

[19]Finally, he assessed his view of the chance of her rejecting the suggestion of amputation after a hypothetical properly detailed advice of the pros and cons, and concluded:

"Mrs Webb's views on braces I have already dealt with. So, upon this distinctly jejune material, I have to ask myself what in percentage terms is the value of the chance of which Mrs Webb was deprived? Some answer has to be given. While I am uneasily conscious that I may be moving from the realm of hypothesis to that of wild speculation, my answer is 40%."

[20]Having reached those conclusions, the judge first apportioned the global settlement figure for both the fall and the amputation with interest (by then £165,953.73) into the amount attributable to each cause of action, adjudicating on a schedule produced by counsel for the Bank, which was not explored in the submissions before us. The judge accordingly ordered the Trust to pay the Bank the sum of £112,808.17. He then took 40% of that figure to represent what Mrs Webb had been deprived of by the notional loss of her chance:

"... of forming a reasoned opinion on the basis of full knowledge of the relevant facts, and in the light of that opinion to have rejected amputation."

[21]The judgment accordingly orders the Trust to pay the Bank: a) £47,898 (being 40% of £119,745 - a figure whose provenance I do not know); b) 40% of the claimant's costs from 20th September 1999 to 6th April 2000; and c) the costs of the issues raised in the Amended Particulars of Claim to be assessed.

[22]The Trust then appealed against that order, on the grounds set out in the Notice of Appeal:

"1 The judge was wrong in law to conclude that the correct approach as to whether the Claimant would have come to amputation in any event was one of loss of a chance of avoiding amputation; he should have decided that issue on a balance of probabilities. Adopting the correct approach, and given his conclusion that the Claimant (and hence the First Defendant) could not show that she would have avoided amputation on a balance of probabilities, he would have dismissed the contribution claim. 2 In particular, the judge was wrong to distinguish the decisions in Hotson -v- East Berkshire HA [1987] 1 AC 750 and Allied Maples -v- Simmons & Simmons [1995] 1 WLR 1602 . 3 The judge was wrong in law to conclude that because the omissions proved against the Second Defendant had prevented the Claimant from establishing causation, the balance of probabilities approach should not apply. That is in effect to award the Claimant the loss of a cause of action, which is not within the scope of the duty owed by the Second Defendant to the Claimant, namely to avoid causing the Claimant unnecessary physical harm."

[23]Initially the Bank was disposed to resist this appeal, at least as a fall-back position - see their Respondent's Notice of 26th May 2000. But Mr Whitfield QC by his skeleton argument of 20th January 2001 accepted that the legal basis of the Trust's appeal was correct. Mr Whitfield agreed with Mr Paul Rees QC for the Trust that the learned judge should not have awarded damages for the loss of a chance: first the claim brought by the claimant and settled by the Bank was a claim for personal injuries and not a claim for loss of a chance; second, that in such a case "... a plaintiff cannot recover damages for the loss of a chance of a complete or better recovery" (see Otton LJ in Tarhir -v- Haringey Health Authority [1998] Lloyds Med Rep 104 at 108); and third, the judge's finding that the value of that lost chance was 40% was inconsistent with the view, implicit in his judgment, that if Mr Jeffrey had done his investigation properly, the claimant would as a matter of probability have decided not to take the extreme step of above-the-knee amputation. Accordingly, there was no contest on this point before us. Mr Paul Rees QC asked for judgment on the Trust's appeal. Mr Whitfield did not oppose that course. We accordingly acceded to the request, and allowed the Trust's appeal without hearing argument. The appeal then proceeded on the basis of the Bank's Respondent's Notice.

[24]The Bank's case as set out in the Respondent's Notice was:

"1.1 The learned judge was in error in concluding that the evidence necessary for the claimant to establish causation was not available. 1.2 The learned judge ought to have found that: 1.2.1 the Claimant ought not to have been advised that the amputation was 'the best option' and 'the right way forward' but ought to have been cautioned against it (if it was justifiable to mention it at all) and urged to have further investigations and to consider other options first, and in particular to persist in trying to find a suitable orthosis. 1.2.2 that, on the balance of probabilities the claimant would have accepted the advice that ought to have been given and would not, of her own volition, have been likely to insist on amputation; 1.2.3 the breach of duty at 1.2.1 thus caused the claimant to elect to undergo an above-knee amputation, which was then performed. 1.3 The learned judge therefore erred in reducing the damages attributable to the negligence of the appellant by 60%. The learned judge ought to have awarded the first defendant the full measure of the damages and interest assessed by him as having been occasioned by the amputation."

[25]The first essential step on this path is that to succeed in the contribution proceedings the Bank must show that the claimant would have succeeded against the Trust. For this we go back to the history of events and the judge's findings in relation to the meeting of 22nd November 1994. By then, the judge found, Mrs Webb was complaining of extreme pain, which stopped her sleeping. She remained firmly opposed to either a shoe raise or a calliper which Mr Jeffrey then preferred. Mr Jeffrey concluded that he had reached "... the end of the line ..." with her. So he raised amputation as being the only other solution. He did not even discuss a trial of orthosis (brace or calliper), because of her previously stated dislike. And so he made no attempt to coax or persuade her to give the calliper solution another try. He did not further investigate the cause of her pain, assuming it would be undeveloped arthritis which would not show on further X-rays. He did not investigate any other cause of Mrs Webb's pain because he believed it to be an unstable arthritic knee, which was enough to account for the pain. He was aware that amputation did not have a good reputation with polio victims, but considered that to be a reflection on the days of crude prostheses, now past. So he did not consult with those who had a special interest in polio victims, though he had done on previous occasions.

[26]The judge found that Mr Jeffrey's views were not endorsed by the experts called before him. He heard from four experts over three days, and also read an illuminating account of a telephone conference between six experts, two of whom did not give evidence at trial. The experts who gave evidence were Professor Heatley, Dr Luff, Professor Solomon, and Mr Spivey, while Dr Kirker and Mr Hay were instructed in the case, but not called as witnesses.

[27]We turn to that telephone conference. The consensus there expressed was: Q4: some type of intervention would be necessary for the knee in six years. Q5: that would be some sort of bracing, assuming that the knee was "at that stage" braceable. Q7: the accident did bring about a change in her condition, albeit a small one. With old polio patients even a comparatively minor change can tip the balance to an accelerated decline in functional activity. Q8: all agreed that the preferred treatment would have been physiotherapy, hydrotherapy and bracing. Mr Luff would have undertaken further investigations to determine the cause of the pain. Q10: went to the heart of the matter:

"Would you personally have advised an amputation?"

All were agreed that the answer was "No". Q11:

"Would you have accepted amputation as a possible option if bracing failed or was otherwise totally rejected?"

The note reads:

" General disagreement L and RH rejected this option outright, except in the case of some major complication such as infection. K would have been prepared to consider it if pain was a major factor. FH would have considered it only as a last resort and after exploring all other modes of treatment as set out in his answer to Question 8. He would also have considered a patellar bone-block operation, as described in his report. JS and LS, while accepting that amputation has a poor reputation in post-polio patients, would not have rejected it completely as an option, considering that in this particular case (unlike the 'usual' polio case) the patient had a considerable degree of pain, hyperaesthesia, joint deformity and rotational instability of the knee."

Q12: all would have warned of the possibility of an adverse outcome. Q13: asked whether there was anything in this particular case which would have counted for or against amputation, and K, JS and LS relied on the factors they had alluded to in their answers to Question 11 as being unusual circumstances for a post-polio patient, and would have a significant influence on decision making (but none of them would have amputated) then, but only as a last resort. Q14: asked whether the claimant's functional capacity five years on from the amputation "... was better, worse, or the same as it would have been with their preferred treatment". Of those that had examined her, their conclusions were: one, very much worse; one, significantly worse; and two, "... managing about as well now as she would have done after five years in a brace".

[28]Then, in answer to Question 15:

"... do you think the decision in this case represented a standard of care below that to which Mrs Webb was entitled to expect?"

L, RH and FH answered yes, and K, JS and LS answered no. And finally:

"It was generally agreed that the standard of note-keeping in the medical records was not of a high standard, making it difficult for those who had not seen Mrs Webb to form firm conclusions about the details of her medical condition."

[29]In amplification of that evidence, those witnesses gave evidence as follows: a) Professor Heatley first stressed the very limited investigation that Mr Jeffrey had made. He criticised the limited X-rays, and the absence of X-rays taken from all angles, examined under an image intensifier. He regarded physiotherapy, hydrotherapy and bracing as an ideal solution, while accepting that it could be difficult psychologically to get it to work, to persuade those who in their polio-afflicted youth had had troublesome experiences with heavy callipers to give braces another chance. But he himself had never had to amputate on an old polio victim, having found that other patients with experience of the suggested form of brace were persuasive. He felt "rather sad" that she had ended up with amputation. He was not impressed by the fact that Mr Jeffrey obtained a second opinion accepting amputation from Mr McLaren; the second opinion was given too quickly with inadequate information. He was against amputation, but would not have said it represented a standard of care below what could be expected. b) Dr Luff regarded amputation was being last in the list of options. Any intervention may have an enormous impact on the patient, and requires a very careful analysis. It was essential that all reasonable avenues of treatment were considered before a decision to amputate. That had not happened here. Radiographs should have been considered and obtained. Amputation had not got a good record with polio patients. He would have been pessimistic as to its chances. He too was not impressed by Dr McLaren's second opinion because no reasons were given. c) Mr Spivey had never amputated a leg in circumstances such as existed here. He thought that the explanation here must be that both Mrs Webb and Dr Jeffrey were proceeding on the basis that her existing situation was unacceptable, and that desperate measures were necessary - otherwise he could not understand the decision. But amputation should only be offered as a last resort. d) In his original witness statement Mr Spivey said that the quality of the medical records produced made it difficult to be certain what the medical condition of the knee was, and what degenerative changes there were. In his evidence he expanded that he had seen no record of a proper clinical examination. He would have explained how a calliper could be expected to ease the patient's pain, and he would have spent a lot of time dealing with her objections. He would have persisted with non-surgical means of management for as long as he could. He said that he found that eventually he and his patients agreed. He agreed that some sort of bracing would have been needed, but this turned first on acceptance and compliance by Mrs Webb, and second on whether the knee at the time was "braceable". While he would not have amputated, he did not believe that the decision to amputate represented a standard of care below that which Mrs Webb was entitled to expect. e) Professor Solomon would have made Mrs Webb aware of all the problems associated with surgical management, and would have advised against amputation at this stage. He would have wanted a good X-ray. However, because there was evidence that she had reasonably good muscle control around her hip, he would not have branded the advice as falling below the standard of care. But, as he made clear in his evidence, he would have been extremely reluctant to amputate, and would have done so only as a last resort. He had, more often that not, been able to persuade patients to carry on with a brace.

The judge, having heard the evidence summarised the consensus:

"All agree that they would not have advised amputation. It has a notoriously bad outcome for old polio patients and it was the consensus of opinion that it would only be used as a very last resort and as a result of some secondary and potentially life threatening complication. They were also in agreement that, subject to being able to coax Mrs Webb to acquiesce, bracing or orthosis of some sort was by far the preferred option, with occasional assistance from crutches. Another criticism which all the expert witnesses made, to a greater or lesser degree, concerned the apparent omission, in November 1994, to investigate Mrs Webb's knee in far greater depth and detail, in order to discover just what the underlying pathology was which was causing such severe pain. Various possible methods were suggested. ... But I do accept the view of those who tell me that, before deciding on anything so drastic, disfiguring and irreversible as amputation, a full clinical examination, plus a set of good quality X-rays, taken from various angles, were highly desirable. It is in this respect that I consider the two surgeons who advised Mrs Webb can be validly criticised. In my view Mr Jeffrey was too quick to believe that he had reached the end of the line. By not conducting these investigations, he deprived both himself and Mrs Webb of the full ambit of the knowledge necessary to make a reasoned choice. He was also somewhat too quick to think that there was no point in trying to coax Mrs Webb to try again with the orthosis. He was aware that there were various types and designs that could be made, but there is no evidence that he made any enquiry of the unit that supplied them as to the chances of getting or producing a brace that would have succeeded in significantly reducing Mrs Webb's pain and instability, besides being cosmetically acceptable. Therefore I agree with those who say he should have done more to indicate how much more preferable it would be to try a brace which would be both effective and acceptable to the wearer. The breach of duty lies not in the amputation by itself, for any such allegation would be met with the counter that Mrs Webb had specifically consented to it, but rather in the failure to take the steps that were necessary to provide himself and Mrs Webb with the complete information necessary for a choice to be made. Of course it may be that, even with the utmost persuasion, Mrs Webb's loathing of braces could not have been overcome, and she would still have opted for amputation. But she should have been given the fullest information and encouragement in order to wean her towards what all have agreed was the best option."

[31]The judge then went on to ask the proper question that would have to be answered in "... an ordinary balance of probabilities case":

"In other words had she been given proper advice and exhortation, based on the results of investigations which should have been conducted, what would her reaction have been?"

[32]The judge then found that that question could not be answered on the balance of probabilities because not enough was known about the knee, nor the availability of braces. But the reason for the claimant's ignorance was that Mr Jeffrey had negligently failed to make proper enquiries:

"We have, therefore, a situation where the very omissions which have been proved against the defendant are those which preclude the claimant from advancing the evidence necessary to establish causation."

[33]We do not agree with the suggestion that the question posed in paragraph 30 above could not be answered on the balance of probabilities. And, as Mrs Webb did not give evidence before the trial judge, we believe that we are as well placed as him to draw inferences from the primary facts as to what she would have done. The fall itself was a relatively minor incident, but it aggravated the claimant's problems. Initially Dr Jeffrey advised Mrs Webb that the options were physiotherapy, bracing or ultimately arthrodesis, but he advised Mrs Webb to carry on as she was. Later he was to advise the trial of the calliper, but he had nothing to do with the trial itself. His decisive involvement came in and after the 22nd November visit, when he first raised the question of amputation, and wrote to Mr McLaren seeking a second opinion, while expressing his own:

"... this leg would be better amputated."

Mr McLaren, who spent ten minutes with the Webbs, but conducted no separate examination, agreed with this view.

[34]The decision to amputate was taken on 30th January 1995, where Mr Jeffrey's note reads:

"Been through [above-knee] amputation of this left leg with her and her husband today. Everybody's agreed that this is the best way forward."

But, as the judge was to find, it was too early to proceed to amputation.. As the telephone conference showed, none of the doctors taking part would have recommended amputation then, though three of the six would recommend it as a last resort. But matters had not reached that irreversible stage. On the judge's finding, any such advice or recommendation would be premature because first, Mr Jeffrey had not fully investigated the causes of the pain in the left knee, nor had he investigated, or caused to be investigated what modern bracing had to offer Mrs Webb.

[35]Rougier J's finding were: a) all experts were agreed that they would not then have advised amputation, with the three who would contemplate it only doing so as a matter of "... very last resort ...", and as a result of some secondary and potentially life-threatening complication; b) before one reach "... the end of the line ...", ie amputation, it was necessary first, to investigate Mrs Webb's knee in far greater depth and detail to discover what the underlying pathology was before deciding on anything "... so drastic, disfiguring and irreversible as amputation ...", including a full clinical examination, and good quality X-rays, and second, conducting investigations to try and find a brace "... which would be both effective and acceptable ..." to the wearer; c) that Mr Jeffrey should have given Mrs Webb the fullest information and encouragement to "... wean her towards what all have agreed to be the best option" (ie bracing.

[36]It seems to us that Mr Jeffrey was in breach of each of those duties owed to Mrs Webb. It is elementary, and no expert evidence is needed to confirm, that an above-knee amputation is not to be entertained lightly. None of the six independent consultants, whose evidence was before the court, would have advised Mrs Webb to undergo the amputation which took place in February 1995. Amputations have a bad reputation with polio victims, and are infrequently the preferred route to treat pain - see Professor Heatley:

"... amputation is a bad operation for pain, unless the pain is very specifically defined"

. Even though that evidence does not, of itself, establish negligence against the consultant who advised and performed the operation, Mr Jeffrey, it provides compelling confirmation this amputation should have been regarded as the "... very last resort", a view lent particular emphasis by Mrs Webb's medical history.

[37]The first and immediate negligence established against Mr Jeffrey was that he failed to inform himself, and therefore to provide Mrs Webb with the knowledge "... necessary to make a reasoned choice" whether to consent to the operation. Furthermore, the judge went on to find that in consequence Mr Jeffrey did not even begin to advise Mrs Webb to accept the distasteful but less drastic solution of bracing or orthosis. He offered neither information nor encouragement. She was entitled to a full measure of each.

[38]Because of that, in our judgment the judge was wrong to conclude that Mr Jeffrey should be exonerated from a finding of negligence arising from the performance of the amputation itself on the basis that that Mrs Webb had "... specifically consented to it". We doubt whether the judge's conclusion on the basis of "consent" can be sustained. If, through ignorance brought about by the negligent failure of Mr Jeffrey to inform himself, and therefore to advise the claimant on the relevant consideration and possible alternatives, Mrs Webb consented to a procedure with such drastic and irreversible consequences, in our judgment her consent, even if specific, did not absolve Mr Jeffrey from liability for the consequences of his negligent advice. The problem here was not the absence of general warnings about known or possible risks ( Sidaway -v- Board of Governors of Bethlem Royal Hospital

[1985] AC 871

) but rather that Mr Jeffrey's failure sufficiently to inform himself of all the relevant alternatives left her bereft of the medical advice to which she was entitled. In simple terms she should have been told: "Mrs Webb, amputation is the very last resort and until we can properly advise you as to the pathology of your left knee and have fully investigated with your modern bracing, you should not consent to amputation." - and he should have given the reasons why.

[39]What would have happened? It is common ground that Mrs Webb had been a patient of Mr Jeffrey for many years. She had every reason to have, and did have, great respect for and confidence in him and his professional judgment and expertise. It therefore comes as no surprise that, although she described herself in a witness statement as being "devastated" by the idea of an amputation, she eventually accepted his unequivocal advice that this was the appropriate procedure for her. As Rougier J found, it was "... highly probable that Mrs Webb was considerably aghast at the thought of losing part of her leg but that, in her state of mind at the time, was prepared to accept the view of Mr Jeffrey that there was really nothing else to be done."

[40]In his judgment the judge gave two tentative, further indications of relevance to this topic. First:

"... it may be that even with the utmost persuasion Mrs Webb's loathing of braces could not have been overcome, and she would have still opted for amputation. But she should have [been] given the fullest information and encouragement in order to wean her towards what all have agreed was the best option."

Later, he said that although he was not making a definite finding:

"I am extremely doubtful that I should have felt entitled to infer that Mrs Webb would have accepted the suggested advice or, that having accepted it initially, she would have persevered with the trials of orthosis which, in all probability, would have been protracted"

[41]Much has been made by Mr Paul Rees QC of the fact that the bank did not call Mrs Webb to give evidence of her likely reaction if Mr Jeffrey had advised not amputation, but orthosis. Neither side called her. The bank did not call her to say that she would have accepted that advice: the Hospital Trust did not call her to say that she would have rejected it. In the present context, of course, the burden of establishing causation rested on the bank, not the hospital, but the reality is that any assertion by Mrs Webb of her state of mind in February 1995 would have been open to the criticism that she could not now positively know what she would have done then, particularly as no attempt had in fact been made to "wean" her away from amputation. By the time of trial, her own assessment of the notional answer she would have given to a theoretical question would have been affected by the extent to which she had been able to come to terms with the amputation, and whether she believed that the operation had been successful or not. We can understand her disliking suing Mr Jeffrey. We can understand her wanting to be shot of the case and not to have to give evidence. But in our judgment it would be unsafe to draw any further inference from her absence from the witness box.

[42]It was submitted that it was a principle of law that "... where there is a duty to inform it is, of course, necessary for a plaintiff to give evidence as to what would or would not have happened if the information in question had been provided" (per Gaudron J in Chappel v Hart [1999] LLR 222 at 227). We respectfully disagree with the suggestion that where a patient has sustained injury in the circumstances envisaged by Gaudron J, any claim must fail unless the patient gives evidence personally about what would or would not have happened if he had been properly informed of the facts before making his decision. What if the patient had suddenly died between a medical procedure carried out when he was not given proper information, and the trial, and without a statement having been taken from him on this direct question? Carried to its logical conclusion, the principle for which Mr Rees was contending would mean that, as a matter of law, such a claim would be bound to fail. That cannot be right. The likely consequences, if any, of medical negligence, in whatever form it may be established, depends entirely on the evidence before the judge, and the conclusions which, as a matter of fact, he is prepared to draw.

[43]In this case we are in as good a position as the trial judge to draw inferences from the evidence available to him. Given the awesome finality of an above knee amputation, and the long history of confidence built up by the relationship between Mr Jeffrey and Mrs Webb, it seems to us improbable that if he had advised her, as he should, that the time for an amputation was premature and an operation was not inevitable, or even recommended, and orthosis was a viable option, Mrs Webb would nonetheless have tried to persuade him to proceed to amputation, or indeed have insisted on it. Events show her to be a sensible lady, and when the pros and cons are fairly spelled out, we do not believe that she would have opted for amputation in this case. Expert evidence supported the view that given persuasion, patients accept the evidence given to them by their doctors, particularly when the doctor enjoys the patient's trust. In her witness statement, Mrs Webb said:

"I therefore agreed to the amputation as Mr Jeffrey thought it was the best solution."

It seems to us probable that if Mr Jeffrey had decided and advised against amputation pending the further enquiries, it would not have taken place. And the judge in his judgment rightly proceeded on the footing that he did not "... believe that the search for a successful brace would be a short one". He did not find that she would not have waited, and such a finding would be out of character with the view we have formed of her.

[44]So we are satisfied that Mrs Webb would not have consented to the amputation had she been properly advised by Mr Jeffrey. She would not have lost a leg if properly advised. Therefore Mrs Webb would have succeeded in her claim against the Trust. Because of Mr Jeffrey's negligent breach of duty in failing properly to inform Mrs Webb's consent to the operation she establishes a good cause of action against the Trust, the second defendants. There are no difficulties about causation in our judgment.

[45]We turn next to the question of damages and contribution between tortfeasors. Because of the events set out in paragraph 13 the Bank, who seek contribution, must rely on the Civil Liability (Contribution) Act, 1978 ("the 1978 Act"). That Act provides:

"1 Entitlement to contribution (1) Subject to the following provisions of this section, any person liable in any respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise). ... (4) A person who has made or agreed to make any payment in bona fide settlement or compromise of any claim made against him in respect of any damage (including a payment into court which has been accepted) shall be entitled to recover contribution in accordance with this section without regard to whether or not he himself is or ever was liable in respect of the damage, provide, however, that he would have been liable assuming that the factual basis of the claim against him could be established. ... 2 Assessment of contribution (1) Subject to subsection (3) below, in any proceedings for contribution under section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage in question."

As a matter of statutory construction, we proceed on the basis that "the damage" in section 1(4) must be read as being "the same damage" as is mentioned in section 1(1).

[46]The settlement was for the global sum of £165,453.75. That figure represented the total of the two linked claims for damages. First, (Basis A) there was the tripping accident, brought against the claimant's employers, the Bank, for their negligent failure to maintain their forecourt. The Bank and nobody else was liable for that claim. Second (Basis B), there was the claim for the doctor's negligent advice, as a result of which the leg was amputated. That claim was for the damages attributable to the amputation, based on Mrs Webb's actual condition following the amputation.

[47]Mr Matthews, for the Bank, prepared a detailed schedule, attributing the global settlement figure on both bases, the object of the exercise being to attribute each head of damage appropriately in order to arrive at the figure under Basis A ("the effects of D1's negligence, excluding the alleged intervening cause"). This attribution was arrived at by the exercise of Basis B minus Basis A (which calculation attributed £53,945.50 to the Bank's sole liability for the claim against them, leaving £112,008.17 as the total damages attributable to the amputation). Mr Rees QC accepts the figures, but takes the point that: "Had Mrs Webb had to sue the Bank to judgment and the Bank had established an intervening act of negligence on the part of the Hospital, it would have sought to limit Mrs Webb's claim against it to £53,945.56" (the Trust's second skeleton paragraph 6.2).

[48]While we know nothing of the settlement negotiations, if the Bank did so seek, they plainly did not succeed. But it is right that the Bank, in September 1999, in their Amended Defence, pleaded that:

"For the reasons stated above, the claimants amputation and the subsequent problems related thereto were thus not caused or contributed to by defendants but were solely due to the intervening negligence on the part of the claimant's treatment hospital and doctors."

The plain object of this amendment was achieved when the claimant amended her pleadings to make against the Trust the same criticisms as the Bank had made, as they were to do.

[49]So far as we are aware, that amendment only featured in the trial below in one respect. Before the trial proper started, there were submissions made to

the judge by junior counsel on both sides as to whether:

"... the fact that the first defendant has by its pleading argued that it is not liable for post-amputation disability [prevents] it from seeking a contribution."

The judge held that it did not have that effect:

"[section 1(4)] clearly contemplates a settlement of a claimant's claim before all questions of liability, as between defendants, have been decided. ... In my judgment, at this stage of the proceedings, what we are looking at is the damages claimed by the claimant. Either they will all be ultimately found the responsibility of the first defendant, or they will in part be found to be the first defendant's responsibility and in the other part that of the second. But at this stage, we are looking at the claimant's claim and the contribution sought in respect of that claim."

[51]We do not have a Notice of Appeal in the bundles, unless what is referred to in Appeal Bundle 82 as "Please see attached" refers to the skeleton argument exhibited between pages 89 and 99. From that document it would seem that there was no appeal against this ruling. Thereafter it would seem that the amendment played no part in the trial. We say that because it does not seem from the papers that the judge was ever asked to rule on it, even though in his judgment he made it plain that he was dealing with a situation where:

"... many of the disabilities and aspects of financial loss have two concurrent causes, which would produce overlaps. The proper approach, therefore, is to look at the total settlement sum, assess to what extent the breach of duty of the second defendants contributed to that sum ... "

We conclude that there is no ruling on the pleading point because there was no point raised as to it in the trial proper.

[52]However, we will consider it as a matter of substance. The question here is whether, when an employee is injured in the service, and by the negligence, of her employer, his liability to her is terminated by the intervening negligence of a doctor brought in to treat the original injury, but who in fact made it worse.

[53]Unsurprisingly, there is no general rule on this question. As Laws LJ said in Rahman -v- Arearose Limited [2001] CA 351 at 366G:

"... it does not seem to me to be established as a rule of law that later negligence always extinguishes the causative potency of an earlier tort. Nor should it be. The law is that every tortfeasor should compensate the injured claimant in respect of that loss and damage for which he should justly be held responsible."

[54]The same question was considered in the High Court of Australia in Mahoney -v- Kruschick (Demolitions) Pty Ltd

(1985) 156 CLR 522

where the Court (presided over by Gibbs CJ). We get from the headnote:

" Held , that if the employer were held liable in damages to the workman, it might be able to prove that if the doctor had been sued by the workman, the doctor would have been liable for some of the damages recovered by the workman, and, in that event, the employer would be entitled to an order for contribution under s.5(1)(c) of the Act. Whether a tortfeasor can avoid liability for a subsequent injury tortiously inflicted by a second tortfeasor depends on whether or the subsequent tort and its consequences are themselves foreseeable consequences of the first tortfeasor's negligence. Per curiam . Where an injury is exacerbated by medical treatment, the exacerbation may easily be regarded as a foreseeable consequence for which the first tortfeasor is liable. If the plaintiff acts reasonably in seeking or accepting the treatment, negligence in the administration of the treatment need no be regarded as a novus actus interveniens which relieves the first tortfeasor of liability for the plaintiff's subsequent condition. The original injury can be regarded as carrying some risk that medical treatment might be negligently given."

[55]Finally, we agree with the editors of Clerk & Lindsell on Torts, when they say: "Moreover, it is submitted that only medical treatment so grossly negligent as to be a completely inappropriate response to the injury inflicted by the defendant should operate to break the chain of causation." (18th Edition, 2-55)

[56]We are of clear opinion that there the chain of causation was not broken. We have in mind that: a) the original wrong-doing remained a causative force, as it had increased the vulnerability of the claimant and reduced the mobility of the claimant over and above the effect of the amputation; b) the medical intervention was plainly foreseeable, and it was also foreseeable that the claimant's pre-existing vulnerability would impose its own risks; c) given the doctor's conduct was negligent, but not grossly negligent, and given the findings expressed at a) and b) it would not be just and equitable, nor in keeping with the expansive philosophy of the 1978 Act for the wrongdoer to be given, in these circumstances, a shield against i) being liable to the claimant for any part of the amputation damages; and ii) being liable to make such contribution to the Trust's amputation damages as was just and equitable.

[57]In short, the negligence in advising amputation did not eclipse the original wrong-doing. The Bank remained responsible for their share of the amputation damages. The negligence of Mr Jeffrey was not an intervening act breaking the chain of causation.

[58]Lastly, the question of apportionment or contribution between the two defendants in relation to what we have held to be the same damage. We have not heard argument on questions of factual detail in relation to this matter, but are merely asked to arrive at a figure "... such as may be found to the court to be just and equitable having regard to the extent of that person's responsibility for the damage in question." (section 2(2) of the 1978 Act)

[59]The Bank, by their negligent maintenance of the forecourt, was responsible for getting the vulnerable Mrs Webb before the doctors employed by the Trust. But it was the latters' negligence that was much more responsible for the amputation and all that went with it. In all the circumstances, we assess the Bank's responsibility at 25% and the Trust's at 75%.

[60]We will hear counsel as to the orders to be made.

ORDER

Respondent's cross appeal allowed; no order on the appeal. Judgment of Rougier J set aside in part and following orders substituted:(1) appellant to pay to respondent within 14 days the sum of £89,808.75 plus interest of £7,888.41;

(2) appellant to pay to respondent 50% of claimant's costs from 20.09.99 to 06.04.00; remaining parts of the order to stand unaffected. Appellant to pay the respondent's costs of the appeal and cross appeal, to be subject to a detailed assessment if not agreed. (Order does not form part of approved Judgment)