​ The test for negligence when making a claim

February 09, 2017

For a clinical negligence claim to succeed it is necessary to prove that:

  1. The treatment or care you received fell below the standard expected of a “responsible body of doctors or medical practitioners” (this is known as breach of duty); and
  1. That as a result of that breach of duty you sustained an injury (this is known as causation).

In every case there is a four stage test. First, we would need to establish that there is a duty of care, for example, between a doctor and patient. Second, it must be shown that there has been a breach of that duty. When deciding whether there has been a breach, we look at whether a doctor has fallen below the standard of a responsible body of medical professionals and therefore considered negligent. In addition, it must be shown that there was a link between the breach of duty and the harm caused. Finally, it must be shown that the harm was not reasonably foreseeable.

In other words to be successful in your claim you will need to prove that-

  1. The Defendant has been negligent in their care towards you.
  1. The negligence has caused or at least materially contributed to your injury.
  1. That "but for" the defendant's negligence, you would not have been injured and the injury is not reasonably foreseeable.

The question of negligence is complex because, to a certain degree, the standards are set by each profession.

For example, in Whitehouse v Jordan [1981] the claimant suffered a brain injury following a forceps delivery during a difficult birth. Whilst the baby suffered a brain injury, which was caused by the doctor carrying out the forceps delivery, the court decided that the doctor was not at fault because he did what other doctors might have done in the same circumstances. Therefore, the baby suffered a brain injury and the injury was caused by what the doctor did, but the doctor was not considered legally at fault.

In one sense, this may be considered fair to the doctor who did exactly what many other doctors would have done. On the other hand, it may be considered unfair that the baby suffered a brain injury and was denied any compensation based on the court's application of the test of negligence.

Overall, this is a very complex area of law, which is why it is important that you instruct a specialist lawyer who will carry out a risk assessment, collate evidence and instruct experts to comment on the care received, before advising you whether your case is likely to succeed.

At Metcalfes, our team of experienced medical negligence solicitors are here to sensitively help guide you through any potential claims you may have. We deal with all areas of medical negligence. If you think that you or a loved one has suffered as a result of medical negligence, we may be able to help. 

Please contact us on 0117 239 8012.  Alternatively, you can email us by using our online contact form and we will be happy to discuss your potential claim with you.

Further reading:






Website content note: This is not legal advice; it is intended to provide information of general interest about current legal issues.

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​  The test for negligence when making a claim

Gillian Clark

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