Duty to warn of risk

Chester v Afshar [2004] UKHL 41; HL TLR 19 October

A decision from which Lords Bingham and Hoffman both dissented must be unique. Nevertheless, their three brethren in the House of Lords held that where the claimant had suffered nerve damage during an operation, it was sufficient for her to establish a breach of the duty of care properly to warn her of the slight risks, and it was not necessary for her to prove also that had she been so warned, she would not have undergone the operation, or not undergone it on the day she did. The law that imposed the duty to warn on a doctor had at its heart the right of the patient to make an informed choice as to whether, and if so when and by whom, to be operated on. Patients might have, and were entitled to have, different views about those matters. All sorts of factors could be at work – the patient’s hopes and fears and personal circumstances, the nature of the condition that had to be treated and, above all, the patient’s own views about whether the risk was worth running for the benefits that might come if the operation was carried out. For some the choice might be easy – simply to agree or to decline the operation. But for many the choice would be a difficult one, requiring time to think, to take advice and to weigh up the alternatives. The duty was owed as much to the patient who, if warned, would find the decision difficult, as to the patient who would find it simple and could give a clear answer to the doctor one way or the other immediately. 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 might be needed most. That would discriminate against those who could not honestly say that they would have declined the operation once and for all if they had been warned. In the course of an operation to alleviate the claimant’s back pain, she suffered significant nerve damage that left her partially paralysed. Although the operation had not been performed negligently, the injury had been caused by the defendant’s failure to adequately advise the claimant of the risks of surgery and, accordingly, her injury could be regarded as having been caused, in the legal sense, by the breach of the duty to advise her of the risks that were inherent in the operation. Although the risk was slight, she might have chosen to have it on another day when the operation might not have gone wrong.