Damages

Damages

When assessing damages, it will not always be as straightforward as attributing all of the claimant’s ongoing medical problems to the alleged negligence. You must ascertain the actual damage caused by the defendant’s negligence. Assessment will be simpler if the claimant suffered no relevant pre-existing problems and the treatment should have fixed the injury, eg timely treatment of a wrist fracture in a young healthy patient. However, assessment can be significantly more complex if there were pre-existing problems that were likely to impact on the claimant in any event eg osteoarthritis or mental health issues, or if the incident exacerbated or expedited the onset of other conditions.

For further guidance, see Practice Note: Damages in clinical negligence claims.

Loss of a chance and foreseeability

Standard of care and duty of care are tied up with causation and injury. Causation and remoteness are the principles that the courts use to determine what should be recoverable in damages as a result of clinical negligence. The law, therefore, limits the damage for which the clinician will be liable by those two mechanisms. Reasonableness and foreseeability are the tools used to give effect to common sense and public policy and both are necessary parts of causation and remoteness.