‘I will prescribe regimen for the good of my patients according to my ability and my judgement and never do anyone harm’. 59 Harm was already inflicted, thus Harvinder being paralysed. In Gold v Haringey HA60, the Court of Appeal accepted the argument that the duties of doctors could not be subdivided, and that it followed that the Bolam test applied to all aspects of their work. Harvinder now must prove both factual and legal causation, The factual cause, is proved on a ‘balance of probabilities’, as a matter of fact that Mr Blewitt’s negligence was the ‘physical’ cause the paralysis
We next apply the ‘but for test’. Would Harvinder have been injured ‘but for’ the treatment used by the defendant? Or were the serious injuries to Harvinder’s neck and back severe enough to leave him paralysed? This can be a defence Mr Blewitt may adopt, but only if he can have Bolam to support it. The ‘but for test’ was satisfied in Chappel v Hart61. McHugh J, stated, ‘causation for legal purposes is concerned with allocating responsibility for harm or damage that has occurred. ’62 ‘ …
In the context of a medical negligence claims, generally the courts have held doctors whose improper conduct is a ‘but for’ cause of their patients’ injuries liable without further ado’63 Gaudron J’s view on this was, ‘if another surgeon could have performed the operation with less risk … failure to warn … did materially increase the risk of injury… ’64 This can be support for Harvinder, provided he was warned beforehand. The doctor has a special duty to advise his patients of risk of treatment, the principle reasoning for imposing such a duty is ultimately not to reduce the likelihood of the risks materialising.
It is to promote the patient’s decision-making autonomy: the latter’s ‘right to decide for himself whether or not to submit to the treatment in question’ by assessing the various risks and benefits. 65 In failing to mention the risk’s existence he has warranted that it will not materialise, at least in the normal course of events. 66 In cases of more than one cause, it must be shown that the defendant’s negligence caused or materially contributed to the injury.
As stated in Wilsher v Essex Area HA67, “where a person created a risk and injury occurred within that area of risk, the burden of proof was reversed and the defendant had to prove that his negligence was not a cause … the burden of proof of causation lay with the plaintiff throughout the case, plaintiff had to prove that the breach of duty was at least a material contributory cause of the harm. 69 The ‘loss of chance’ doctrine permits a Harvinder to sue for the loss of a chance, of avoiding a particular outcome, rather than the outcome itself.
Therefore Harvinder must prove ‘on a balance of probabilities’ that Mr Blewitt caused or materially contributed to his injury, if the contribution, is greater than 50%, Harvinder is entitled to recover damages in full from Mr Blewitt. In Hotson v East Berkshire HA68, the House of Lords held that the patient had failed to establish that the defendant’s negligence had materially contributed to the harm … ‘it must be shown that the treatment would probably have worked’70 Harvinder may bring about a claim under ‘vicarious liability’. In Vicarious liability claims, the doctor has breached their duty.
In majority of cases the NHS employer will be sued under the principle of vicariously liability for the actions of their doctor’s. The courts need to take into consideration the following. First it must be ‘fair and reasonable’, No Price can be put on the value of a limb or organ, Damages, include pain and suffering and loss of amenity. The money Harvinder would have earned if the accident did not happen and that which will be earned in light of disability suffered calculated on an annual sum. Multiply this by his life expectancy, courts will only multiply this by 18 years, even though patients’ may live longer.
Caparo Industries plc v Dickman  1 All ER 568; 2 AC 605 2 Barnett v Chelsea and Kensington Hospital Management Committee  1 All ER 1068 3 Cooke, J. Law of Tort (5th Edition, Longman, London 2001)(Cited in this paper as ‘Cooke 2001’) p112 details taken for Barnett case 4 Bolam v Friern Hospital Management Committee  1 WLR 582;  2 All ER 118 5 Montgomery, J. Health Care Law (2nd Edition, Oxford University Press, London 2002/2003)(Cited in this paper as ‘Montgomery 2002/2003’) p169 – standard of care, relies on authors text