Published: Wed, 07 Mar 2018
Hotson v East Berkshire Area Health Authority  AC 750
Claims regarding where negligence may have lost the chance of avoiding an injury/illness not caused by the defendant
The claimant was a young boy who sustained various injuries after falling from a tall tree, including a fractured hip. He was taken to receive medical treatment at the local hospital where the doctors failed to identify his fractured hip, and he was subsequently allowed to leave. Five days later, the boy returned to the hospital in significant pain, at which point his injury was subsequently realised. Despite receiving treatment it was determined that he had suffered from a muscular condition (avascular necrosis) which left the boy with a permanent disability and further left a strong probability that he would develop severe osteoarthritis later in life. The submission of expert medical testimony indicated that had his fractured hip been identified on his initial hospital visit, there was a 25% chance of his condition having been successfully treated (and thus a 75% chance it would have made no difference). At first instance the judge awarded 25% of what would have been the full damages amount – £11,500. The Hospital appealed.
Had the claimant satisfied the burden of proof in establishing that the defendant’s actions had probably been causative of his injury.
The House of Lords allowed the appeal, noting that the claimant had not satisfied the burden of proof in evidencing that, on the balance of probabilities, the hospital’s negligence on his initial visit had caused his injury, and rather the fall per se was the most likely cause. Thus the claimant was not entitled to receive any damages.
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