Dudarec v Andrews: Mitigation and the Requirement to Undergo Medical Treatment
Dudarec v Andrews: Mitigation and the Requirement to Undergo Medical Treatment
QBD (Simon J) [2005] EWHC 155 (QB)
Facts
The Claimant instructed the Defendant firm to act for him in a personal injuries claim arising from a road traffic accident. The accident occurred on 20 October 1982. Liability was admitted. Proceedings were issued on 30 May 1984. On 29 May 2002 the claim was struck out, presumably for want of prosecution.
The Claimant suffered numerous injuries, the most notable being diagnosed in about May 1983 as a false traumatic aneurysm of the left common carotid artery. Surgery is usually recommended to repair such an injury.
Between 1985 and 1995 the Claimant was repeatedly and firmly advised by his own and other doctors that he should undergo reparative surgery and that this would enable him to return to work. This was on the basis of the likely benefits of the operation as against the remote risks. He was also advised on several occasions by Counsel that his damages were likely to be reduced for failure to mitigate if he did not undergo the surgery. The Claimant nevertheless refused to so. His reason was that his own researches, and in particular one Australian article, indicated that the surgery carried a considerable risk.
In 2004 a duplex scan revealed that the Claimant had suffered a true rather than a false aneurism and in retrospect had therefore never required the operation.
The instant action was a professional negligence claim. The Defendant admitted liability. The argument between the parties was therefore the value of the Claimant’s claim that had been lost because of the Defendant’ negligence.
Issue
This was the trial of a preliminary issue: what was the chance of the Claimant’s refusal to undergo treatment being found to have been unreasonable in the original action?
Decision
The date on which damages were to be calculated was somewhere between 5 June 1996 (Claimant’s contention) and September 1996 (Defendant’s contention). The judge held that nothing turned upon which date was the correct one, although his obiter preference was for the earlier notional trial date.
The judge had little difficulty in rejecting the Claimant’s submission that the point was easily resolved by taking into account the fact that the 2004 diagnosis demonstrated that the operation had never been necessary. This was irrelevant to the 1996 value of the claim. For it to be otherwise “the Claimant would win the preliminary issue on the basis that there was never anything wrong with him and seek damages that there was”.
The judge identified the following factors supporting the Claimant:
(a) The agreed evidence in retrospect was that surgery would not have been recommended in 1995/6.
(b) Some of the contemporaneous reports recognised that the Claimant’s prolonged lack of symptoms was significant.
(c) The largely agreed evidence of the risks of intervention in the 1980s was of a 3-4% risk of morbidity attaching to the investigative procedure and a 4-5% chance of mortality or morbidity attaching to the reparative operation itself.
(d) The evidence that the need for surgery reduced as time passed.
(e) The likelihood that a further duplex scan would have been carried out in preparation for trial, thus revealing that the lesion had not changed since 1991.
(f) The Claimant’s strongly held view, supported by his own understanding of the literature (he was a veterinary surgeon), of the risks.
(g) That as a matter of law the burden would have been on the original Defendant to prove that the Claimant had been unreasonable (Roper v Johnson (1873) LR 8 CP167).
Conversely, the factors supporting the Defendant were:
(a) It was accepted that as time passed the risks of surgery decreased.
(b) All the vascular surgeons from 1984-95, including three consulted by the Claimant, recommended surgery.
(c) The Claimant’s own medico-legal expert recommended surgery.
(d) The Claimant’s counsel advised in February 1996 that it was difficult to resist the argument that the failure to undergo surgery was unreasonable.
(e) The Claimant may have misunderstood the literature upon which he was relying.
Considering all these factors the judge held that the original Defendant would have had a 40% chance of establishing in 1996 that the Claimant had acted unreasonably. The Claimant was therefore entitled to 60% of the loss of chance of such loss of earnings as he was able to prove.
Comment
This decision affirms that the actual state of fact subsequently revealed is irrelevant to the hypothetical issues to be determined in a claim for negligently handled litigation. There are sound practical and jurisprudential reasons for this rule, although at first blush it appears rather divorced from reality and is a difficult concept for a lay client to accept.
The more controversial question was that of reasonableness. Although this was a professional negligence case, it is arguably at least as relevant to straight personal injury. It is a rather surprising that the judge found that a “stubborn man” ignoring the firm and repeated legal advice and “near unanimous medical advice” amongst others probably did not act unreasonably. The distinction between stubbornness and unreasonableness is not clear from the judgment. This tends to illustrate that there will be few cases where it would not at least be arguable that a Claimant’s failure to undergo treatment was reasonable: all Claimants will give reasons for doing so.
Perhaps the most salient point here is how subjective and elastic this principle is. A 60/40 finding suggests that the trial judge would have a very wide ambit indeed within which to decide whether refusal of treatment is “reasonable”.