Jenkinson v Hertfordshire County Council [2023] EWHC 872 (KB) (18 April 2023)

C suffered a bad fracture to his right ankle on 21 December 2017 when his foot went into an uncovered manhole or drain gully… D admits liability for negligence or breach of statutory duty… [1]

D … admitting negligence but making no admission as to the extent of injury and putting the claimant to proof on quantum. It indicated an intention to instruct its own orthopaedic expert. [2]

orthopaedic expert instructed by D… opined that though surgical treatment of the damage to C’s right ankle, in December 2017, had been the appropriate intervention… the surgery was performed negligently. [3]

[D appeals against DJ’s refusal of D’s application to amend Defence.]

[DJ’s judgment reviewed]


c) There is no rule of law that later negligence always extinguishes the causative potency of an earlier tort; and

d) In cases where alleged negligent medical treatment is given to address injuries sustained as a result of an earlier tort, only medical treatment so grossly negligent as to be a completely inappropriate response to the injury inflicted by the defendant should operate to break the chain of causation.” [12]

DJ derived that final proposition from Webb v Barclays Bank and Portsmouth Hospitals NHS Trust [2001] EWCA Civ 1141. He considered that Webb establishes as a rule of law that medical treatment of an injury caused by a defendant’s tort cannot break the chain of causation unless it is such grossly negligent treatment as to be a completely inappropriate response to the injury (“the Specific Rule”). [13]

…the Specific Rule does not exist as a principle of law defining a necessary ingredient of a novus actus defence in the context of medical interventions. It follows that… DJ misdirected himself. [43]