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Intervening Medical Treatment and the Chain of Causation: Jenkinson v Hertfordshire County Council [2023] EWHC 872 (KB) - Sebastian Bates, Temple Garden Chambers

30/05/23. In this case, Andrew Baker J addressed whetherWebb v Barclays Bank PLC and Portsmouth Hospitals NHS Trust[2002] PIQR P8 ‘establishe[d] as a rule of law that medical treatment of an injury caused by a defendant's tort cannot break the chain of causation unless it is such grossly negligent treatment as to be a completely inappropriate response to the injury’: see [13] (emphasis original). Andrew Baker J referred to this putative rule as ‘the Specific Rule’. It closely tracks what is currently the final sentence of [2-124] in Clerk & Lindsell on Torts, as Andrew Baker J noted at [39].


As Andrew Baker J explained at [1]–[15], this question arose because the Defendant had applied to amend its Defence to deny that it could properly be held responsible for injury, loss, and damage arising from what its orthopaedic expert regarded as the negligent treatment of an ankle fracture that the Claimant had sustained due to the Defendant’s admitted negligence or breach of statutory duty. DJ Vernon, who had heard this application at first instance, dismissed it on the basis of ‘the Specific Rule’, reasoning that there was no real prospect, under the proposed amendment, that it would be found at trial that the treatment had been sufficiently negligent to break the chain of causation. The Defendant appealed.

Andrew Baker J considered Webb at [25]–[29] and [39]–[41]. He observed that Henry LJ, who had presided and delivered the sole judgment in the case, had also presided in Rahman v Arearose Ltd [2001] QB 351, in which he had concurred in Laws LJ’s judgment. This was examined at [30]–[38]. In short, Andrew Baker J regarded Laws LJ’s reasoning in Rahman to be ‘surprising’ if ‘the Specific Rule’ existed, but accepted that it was not ‘a decision against the Specific Rule’. As for Webb, Andrew Baker J acknowledged that ‘the Specific Rule’ had received an ‘apparently unqualified endorsement’ in that case. However, he emphasised that ‘the Specific Rule’ had not been ‘applied by the Court of Appeal to decide that case’.

Andrew Baker J’s view (at [41]–[42]) was that ‘there is no logical justification or policy reason for creating a specific rule of law in the context of negligent medical intervention, and that a rule of law in terms of the Specific Rule is a recipe for litigation within litigation over when treatment otherwise proper in kind is so poorly executed as to become an inappropriate medical response’.

Conclusion and Comment

Andrew Baker J concluded (at [43]) that ‘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’. He allowed the appeal: see [44]–[50].

This judgment means that [2-124] in Clerk & Lindsell will have to be read with caution until either the textbook is updated or the judgment is disapproved.

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