Legal Research
Cases
Chester v Afshar

Chester v Afshar

Case [2004] UKHL 41 14 October 2004

Contract Formation

Implied Terms

Unconscionable Conduct

Injunction

Equitable Estoppel

Medical Law

No judgment structure available for this case.

Type to search within this case.

HOUSE OF LORDS

SESSION 2003–04
[2004] UKHL 41

on appeal from:[2002] EWCA Civ 724

OPINIONS

OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE

Chester (Respondent) v. Afshar (Appellant) ON THURSDAY 14 OCTOBER 2004 The Appellate Committee comprised: Lord Bingham of Cornhill Lord Steyn Lord Hoffmann Lord Hope of Craighead Lord Walker of Gestingthorpe HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Chester (Respondent) v. Afshar (Appellant) [2004] UKHL 41 LORD BINGHAM OF CORNHILL My Lords, 1. The central question in this appeal is whether the conventional approach to causation in negligence actions should be varied where the claim is based on a doctor’s negligent failure to warn a patient of a small but unavoidable risk of surgery when, following surgery performed with due care and skill, such risk eventuates but it is not shown that, if duly warned, the patient would not have undergone surgery with the same small but unavoidable risk of mishap. Is it relevant to the outcome of the claim to decide whether, duly warned, the patient probably would or probably would not have consented to undergo the surgery in question?

2. I am indebted to my noble and learned friend Lord Hope of Craighead for his detailed account of the facts and the history of these proceedings, which I need not repeat.

3. For some six years beginning in 1988 the claimant, Miss Chester, suffered repeated episodes of low back pain. She was conservatively treated by Dr Wright, a consultant rheumatologist, who administered epidural and sclerosant injections. An MRI scan in 1992 showed evidence of disc protrusions. In 1994, on the eve of a professional trip abroad, Miss Chester suffered another episode of pain and disability: she could “hardly walk”, and had reduced control of her bladder. Dr Wright gave another epidural injection, and Miss Chester was able to make the trip, using a wheelchair at Heathrow. But after the trip the pain returned. A further MRI scan revealed marked protrusion of discs into the spinal canal. After further conservative treatment which proved ineffective, Dr Wright referred Miss Chester to Mr Afshar, a distinguished consultant neurosurgeon with much experience of disc surgery, although Miss Chester was understandably reluctant to undergo surgery if this could be avoided.

4. On accepting Miss Chester as a patient, Mr Afshar became subject to a legal as well as a professional duty to exercise reasonable care and skill in examining her; in assessing her case; and in advising on the need for surgery to alleviate her condition. If surgery was advised and accepted, he was bound to exercise reasonable care and skill in operating and in supervising her post-operatively. Mr Afshar did examine Miss Chester, did advise and did undertake surgery. All these duties Mr Afshar duly performed. Miss Chester contended at trial that Mr Afshar had performed the operation negligently, but the judge rejected this complaint and in the event the Court of Appeal was not asked to rule on that question.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Chester v Afshar

Details

AGLC: Chester v Afshar [2004] UKHL 41
Case: [2004] UKHL 41
Decision Date: 14 October 2004

CaseChat Overview and Summary

The appeal in Chester v Afshar concerned whether a doctor is liable in damages for a patient's injury if the patient would not have undergone surgery at all if properly warned of the risks, but would have undergone surgery at a later date. The House of Lords found that the doctor was liable, and overturned the Court of Appeal's decision. The House of Lords found that the doctor's failure to warn of the risks involved in surgery was a breach of his duty to the patient. The injury that the patient suffered was within the scope of that duty. The purpose of the duty to warn patients of the risks involved in surgery is to enable the patient to make an informed choice as to whether, and if so when and by whom, to be operated on. The law should enable rights to be vindicated and provide remedies when duties have been breached. To leave the patient who would find the decision difficult without a remedy, as the normal approach to causation would indicate, would render the duty useless in the cases where it may be needed most. This would discriminate against those who cannot honestly say that they would have declined the operation once and for all if they had been warned. The House of Lords found that the doctor was liable for the patient's injury.

Orders