'A cause for confusion and a case for clarity': the court's treatment of causation in the cases of Chester v Afshar and Gregg v Scott are fundamentally flawed and irreconcilable. An alternative means of redress must be found in 'failure to warn' cases

This thesis shall critically examine the cases of Chester v Afshar and Gregg v Scott to establish whether the cases can co-exist despite the stark differences in judicial reasoning to similar causal difficulties in each case. In Chester v Afshar, the House of Lords concluded that a patient who suffers injury from the materialisation of an undisclosed risk inherent to the medical procedure should recover damages in negligence against the medical practitioner. Recovery is permitted even if the patient is unable to satisfy the court that ‘but for’ the failure to warn they would not have elected to have the surgery. This case stands in stark contrast to the denial of liability in the case of Gregg v Scott, a loss of chance case where the claimant similarly did not satisfy the traditional test of causation. Despite the policy approach taken to Ms. Chester’s case, the House of Lords reverted to the traditional principles and denied Mr Gregg’s claim. It is ten years since the House of Lords decision in Chester. Since then, NHS resources are said to have further dwindled and we are accused of living in a more litigious society than ever before. Despite the adherence to traditional principles of causation in Gregg, the decision of Chester has not been overturned. It is submitted that the cases are irreconcilable. The anomaly to the otherwise principled approach of the courts to causation in medical negligence cases should not be ignored. Instead, an analysis should be made of the cases of Chester and Gregg to find clarity in this now confused state of affairs. The law of causation shall be examined so that a clear understanding of the ‘traditional test of causation’ is established. The cases of Gregg v Scott and Chester v Afshar shall be separately analysed and contrasted to their non-medical negligence counter-parts. The policy reasoning in each case shall be examined to establish whether it has any merit in distinguishing the cases. An attempt shall be made to find a solution to the confusion and to restore clarity to the law of causation in failure to warn cases