The Claimant was employed as a specialist registrar on the Yorkshire & Humbar obstetrics and gynaecology training programme. As part of the position it was necessary to rotate between different hospitals; this entailed a degree of travelling. Prior to joining the respective NHS Trust the Claimant suffered with pain in his cervical spine. The pain grew to such an extent that he required an operation on a prolapsed disk at C5/6. After completing his employment the Claimant required a second operation at C6/7.
The Claimant alleged that the Defendants’ actions led to a worsening of his neck which ultimately resulted in a damaged neck and prevented him from pursuing his chosen career as a consultant in obstetrics and gynaecology. The Claimant’s particular complaint was that the Defendants failed to take sufficient notice of his neck problems when assigning him to hospital. This, he maintained, led to excessive driving to and from work which exacerbated his neck. The court was asked to decide whether there was a breach of duty and if the driving, as opposed to his underlying condition, caused the second prolapse.
The court took the opinion that there had been a breach of duty by the defendants in not following up the concerns of Occupational Health, but that this was not a continuing breach. The court, however, did not believe the claimant’s neck deterioration was caused by the requirement to drive to work and that the pain was constitutional. As such, the claim was dismissed.
Charles Feeny comments,
In effect, the issue in this case was causation. The Defendants had failed to follow their own recommendations in relation to the Claimant’s return to work after neck surgery and a degree of breach was inevitable. The Judge made a limited finding as to breach and in effect considered that the Defendants did not remain in breach once the Claimant had in effect settled into a working pattern. This finding might have become relevant if the Judge had taken a different view in relation to causation.
Whilst the Judge’s acceptance of the Defendant’s case on causation essentially involved a preference for the evidence of the Defendant’s expert, Mr Dyson, over the Claimant’s evidence, Mr Jamile, consideration of the issue did involve the topical issue of the Court’s approach to epidemiological evidence. An important plank of the Claimant’s case on causation was that deterioration in neck pathology could follow from excessive driving and the Claimant relied upon a paper by Jensen et al in the journal ‘Spine’. It was therefore in issue as to whether this paper really did bear comparison with the circumstances of the Claimant’s case. The Learned Judge held, not for good reason, that is that the Jensen paper concerned all day professional drivers who would have a number of other risk factors to include manual work and risk of accident. The Learned Judge was therefore following although not explicitly cited to him, Lord Phillips’ approach and Sienkiewicz v Greif [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”] UKSC 10,
“the Court must be astute to see that the epidemiological evidence provides a really sound basis for determining the statistical probability of the cause of the disease or the causes of the disease” (at paragraph 91).
It is also perhaps relevant that the Claimant could only produce one paper to support his case on causation. Given the prevalence of driving and, given the prevalence of degenerative neck disease, if there was a real association between the two it would be reasonable to expect that much stronger evidence from the epidemiology.
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