Establishing legal liability

The duty of care Healthcare practitioners owe their patients a duty of care. That obligation, arising in the course of their care, requires the exercise of reasonable care to: obtain a full and adequate medical history thoroughly explore the patient’s symptoms and concerns formulate appropriate and reasonable differential diagnoses arrange referrals to relevant specialists where required take action to pursue all reasonable measures to safeguard the patient’s health deliver a reasonable and proportionate course of treatment follow up with the patient afterwards where that is reasonably necessary For guidance on identifying the proper defendant in a clinical negligence claim, see Practice Note: Identifying the correct defendant in clinical negligence claims. The duty is not confined to medical practitioners alone; it may extend further. Non-clinical staff Employees within a healthcare organisation or facility may owe a direct duty to...

NOTE: On 2 December 2024, the Lord Chancellor confirmed a move to a +0.5% discount rate, effective from 11 January 2025. Under Schedule A1 to the Damages Act 1996, subsequent reviews must take place within five years of the end of the prior review, meaning the next review must start on or before 2 December 2029. General damages— PSLA General damages are awards that cannot be calculated with precision; instead, a suitable figure is assessed. They cover: non-pecuniary loss (past and future) for pain, suffering and loss of amenity ( PSLA), handicap in the labour market, loss of congenial employment, loss of convenience, etc future pecuniary loss, eg future loss of earnings, future care, etc In dental claims, general damages will also reflect the need to undergo remedial dentistry. For a more detailed definition, see Practice Note: Common recoverable losses in personal injury cases— What are...

Khan v Meadows In Khan v Meadows, the Supreme Court outlined a framework for analysing the constituent parts needed to establish negligence, including the scope of duty and causation. For further guidance, including on the limits of the defendant’s duty of care, see Practice Note: Duty of care and breach in clinical negligence claims. Causation has two elements that a claimant must demonstrate: Is the loss a consequence of the defendant’s act or omission? (the factual causation question) Is any part of the harm unrecoverable because it is too remote, because there is another effective cause (including an intervening act that broke the chain of causation), or because the claimant has mitigated their loss or failed to avoid loss they could reasonably have avoided?......

This Practice Note considers the concepts of confidentiality and without prejudice protection in the context of a mediation. The confidential character of mediation is a core element of the procedure, curbing the parties’ ability to disclose material connected to the mediation beyond the process unless everyone agrees. Mediation contracts commonly include a term dealing with confidentiality. For further information, see: Confidentiality of the mediation process. Exchanges that occur within a mediation are also ordinarily covered by the ‘without prejudice’ rule. This principle means that communications made in the course of genuine settlement discussions are not to be cited or relied upon in subsequent court proceedings, save for specified exceptions. As recognised in Pentagon Food Group v B Cadman, the contractual and formal framework of mediation renders it a particularly clear instance of ‘without prejudice privilege’, which can be reinforced by the parties’ mediation agreement and their...

Coronavirus ( COVID-19) : The COVID-19 Clinical Negligence Protocol (2020), last updated in June 2021, was introduced to modify how clinical negligence claims and litigation were handled during the coronavirus ( COVID-19) period. It covered: Limitation and time extensions Communication Service Medical examinations Exchange of evidence Interim payments Settlement meetings and mediations BACS payments Costs budgeting Hearings (including adjournments) With effect from 27 August 2024, this Protocol was replaced by the Clinical Negligence Claims Agreement 2024, which develops the earlier approach, with many practices now forming part of day-to-day claims management. The new Agreement is not contractually binding, but places emphasis on collaborative working between the parties. Limitation period: Section 11 of the Limitation Act 1980 ( LA 1980) provides a three-year limitation in personal injury and clinical negligence cases from the date the cause of action...

Dispute resolution clauses—what and why Drawing on Practice Note: Dispute resolution clauses—what and why, including a dispute resolution clause in an agreement is widely regarded as beneficial. When well drafted, it can reduce future ambiguity and offer a clear, non-contentious pathway for parties to attempt settlement without immediately resorting to litigation. Many contracts feature such provisions. In some cases they are straightforward, calling simply for litigation or arbitration (and at times also addressing jurisdiction and applicable law). Alternatively, a dispute resolution clause can prescribe other forms of alternative dispute resolution ( ADR) to be used if a disagreement arises; the intention being that ADR steps occur before litigation (or arbitration) begins. These are sometimes labelled ‘ ADR clauses’ or ‘ Dispute resolution clauses’. For guidance on example wording, see Practice Note: Types of dispute resolution...

The right to obtain disclosure Disclosure refers to the stage in which each party makes available documents within their control that are relevant to the matters in dispute. Its central aim is to advance the overriding objective by putting litigants on an equal footing. The notion of ‘documents’ is not confined to paper files; it covers any means of recording information, including electronic databases, microfilm used for archiving, and video or audio tapes and discs. In clinical negligence claims, the claimant’s medical records are usually the most significant documents. They represent the most contemporaneous account of the care provided and will, in almost every case, underpin the expert evidence that shapes the result of the litigation. Prompt, impartial examination of the medical records can avoid unnecessary delay and cost, and is essential from the outset to evaluate the merits, identify strengths, and pinpoint any...

NOTE: On 2 December 2024, the Lord Chancellor confirmed the discount rate would shift to positive 0.5%, taking effect from 11 January 2025. Schedule A1 to the Damages Act 1996 requires that follow-up reviews occur within five years of the end of the last review, meaning the next review must begin on or before 2 December 2029. This Practice Note considers the common heads of damage in clinical negligence litigation—pain and suffering, loss of earnings, loss of congenial employment, pensions, and care and assistance. It provides practical tips and also looks at causation and periodic payments. Introduction This Practice Note examines the heads of damage typically advanced in clinical negligence claims. It does not, however, extend to claims under the Fatal Accidents Act 1976 or the Law Reform ( Miscellaneous Provisions) Act...

Psychiatric conditions are complex. Mental health disorders are intricate. Individuals living with mental health difficulties are deemed vulnerable and so need tailored care and treatment to prevent self-harm and to avoid harm from others. Mental healthcare is costly. Managing psychiatric illness calls for funding, time and specialist skill, yet all three are in limited supply. NHS mental health provision is underfunded and short-staffed, resulting in some patients missing out on the standard of care and support they require in hospital, in primary care and across community services. When people with mental health needs are not properly supported and observed, avoidable injury may follow. Deficiencies in care can give rise to regulatory probes, complaints about services, performance issues, inquests and knotty medicolegal, ethical or hypothetical questions. Where a negligence claim is pursued, the claimant must demonstrate that the standard of care fell such that they...

Remoteness and foreseeability An injury arising out of clinical negligence does not, by itself, ensure a claimant will be granted damages by the court. A tort gives rise to damages only where each constituent is established: duty of care breach of that duty causation, i.e. the breach caused loss injury Remoteness of loss and foreseeability are elusive notions that pervade every stage identified above. They are the judicial instruments through which common sense and policy are applied. Failure to treat/loss of chance Where, but for the clinical negligence, the claimant had a prospect of recovering from illness or injury without adverse consequences, or held a strong chance of a cure, how do the courts handle causation and what damages are awarded? These issues concern causation intertwined with remoteness. In Hotson v East Berkshire Area Health Authority, a 13-year-old fell from a tree,...

This Practice Note outlines pragmatic points for handling such claims, then summarises frequent categories of neonatal harm arising during delivery. The emphasis is on liability, not quantum. The standard elements of breach of duty, causation, and damages remain engaged. See: Clinical negligence liability—overview Clinical negligence damages—overview Catastrophic claims—overview Informed consent— Montgomery When handling birth injury matters, you should understand Montgomery, a case concerning a baby who developed cerebral palsy after hypoxia during a protracted labour. The liability questions centred on the information provided to the mother about delivery options and their hazards. Its scope is broad and it reset the standard for disclosure during consent. In practice, this reshapes how clinicians discuss risks and alternatives with expectant mothers. For more detailed guidance on this authority and later developments, see Practice Note: Consent in clinical negligence claims—treatment and causation. In CNZ v Royal United Bath Hospitals NHS...

Definition Guidance for doctors who provide cosmetic interventions, issued by the General Medical Council ( GMC) in 2016 and revised in December 2024, defines cosmetic interventions as any procedure, treatment or intervention undertaken chiefly to alter some aspect of a patient’s physical appearance. This spans surgical and non-surgical options, encompassing both invasive and non-invasive approaches. In recent years, cosmetic surgery activity has surged markedly; online discounting has played a part in fuelling this rise. As the volume of procedures increases, so too does the likelihood that complications or undesired outcomes may occur......

Clinical negligence claims involving A& E treatment An introduction to accident and emergency ( A& E) medicine Accident and emergency medicine is widely seen as the NHS’s frontline, where clinicians provide rapid assessment and care for people with severe, life‑threatening illness or injury. This speciality calls for extensive knowledge and practical ability to prevent, diagnose and manage acute, urgent problems across all ages, often complicated by concurrent or pre‑existing conditions. Patients frequently present with minimal background details, relying largely on information gathered from conversation, which makes diagnosis particularly demanding. The central challenge is to deliver swift, appropriate care in those first critical hours. Emergency physicians must possess the expertise to form a working diagnosis, start treatment immediately and, when needed, refer patients to the right specialists. Many develop subspecialist interests that add depth to emergency care, such as paediatric emergencies, acute medical...

This case tracker reviews clinical negligence liability decisions from January 2021 onwards. The judgments offer guidance on how the courts are addressing different types of clinical negligence claim. Where possible, we have included links to the judgments and/or analysis. Use this tracker alongside Practice Notes on specific claim types, such as Clinical negligence claims involving labour and delivery—injuries to the child, Delay in medical treatment, and Clinical negligence surgical claims... Birth injuries Case name and details CCC (by her mother and litigation friend MMM) v Sheffield Teaching Hospitals NHS Foundation Trust [2026] UKSC 5, February 2026. On appeal, the Supreme Court considered whether a child claimant can recover ‘lost years’ damages for earnings she would have made during the period by which her life expectancy was shortened by the defendant’s clinical negligence. CCC sustained a severe hypoxic brain injury at birth in 2015, reducing her life...

The law relating to wrongful conception, pregnancy and birth can be broken down into the following areas: Unintended conception after a negligently performed sterilisation (male or female), resulting in the birth of a healthy child Unintended conception after a negligently performed sterilisation (male or female), resulting in the birth of a disabled child Unintended conception arising from negligent contraceptive or medical advice or treatment Wrongful birth where the claimant mother would have ended the pregnancy had she been informed that the child was, or was likely to be, disabled A claim by a disabled child (as opposed to a claim by the mother for her own injuries) Claims are most often brought by the person who carried the pregnancy, rather than by any child born from it. In many cases of negligent female sterilisation, the issue is tubal occlusion where a Filshie clip has not been correctly applied to the...

Many contracts include provisions on resolving disputes. At times these are simple terms stipulating litigation or possibly arbitration, sometimes also spelling out jurisdiction and the governing law. Yet a clause can instead prescribe other routes of alternative dispute resolution ( ADR) to be pursued should a dispute arise, offering an alternative to litigation or arbitration. Such provisions are often labelled ADR clauses. Parties have a number of options open to them (see below), and it is vital to appreciate the consequences of the drafting choices you make. This Practice Note reviews several clause formulations and evaluates the issues that may arise in relation to each category. The types of dispute resolution clause considered in this Practice Note are: litigation only clauses mediation clauses multi-tier clauses (escalation clauses) hybrid clauses carve-out clauses For guidance on the principal questions around the...

Introduction The duty of care expected of doctors and other clinicians is widely recognised. Yet claims alleging delayed diagnosis or treatment are often made harder by issues of causation. Almost every clinical negligence claimant arrives with existing health risks. The core question in this field is whether, and exactly which, further harm and loss were brought about by the supposed medical negligence... Types of claim Cases involving delay in treatment or diagnosis arise across the NHS. The most substantial claims tend to occur in acute and emergency settings—an unwell patient moves through many steps in a large hospital, and each stage offers scope for delay. Typical instances include: late ambulance attendance at the scene or slow transport to hospital patients being incorrectly triaged in A& E postponed referral for investigations investigations being misinterpreted delay or failure in obtaining senior or...

Within this Practice Note is a catalogue of commonly used medical short forms and symbols present in clinical notes......

The concept of foreseeability and remoteness in negligence claims The defendant bears responsibility for loss only where it represents a foreseeable result of breaching a common law duty. It is unnecessary to establish that the defendant anticipated the exact sequence of events. It suffices that the harm is of a foreseeable kind, even if it occurred through an unusual mechanism. The focus is on the category of injury rather than the specific manner of its occurrence. See the Practice Notes: Duty of care in personal injury claims and Breach of the duty of care in personal injury claims. Nevertheless, even where the claimant establishes: that the defendant was negligent (ie in breach of duty), and that such negligence actually caused the injury or loss, the defendant is not automatically liable for every consequence. To recover damages in a claim founded in negligence, the injury or damage must have been reasonably foreseeable. If it was not reasonably foreseeable, the defendant is not accountable and the loss is treated as too remote (hence the topic is often described as remoteness). Usually, whether the damage was foreseeable will be obvious...

This Practice Note examines when a court will find an employer vicariously liable for a tort committed by an employee. The courts’ treatment of the ‘close connection’ test has shifted over time, and this Practice Note offers practitioners clarity on how the doctrine has progressed. To determine the situations in which a court may hold an employer responsible for an employee’s tort, it is helpful to trace the doctrine’s evolution... Salmond test Historically, the governing test was set out by Salmond in his 1907 work, Law of Torts. The central proposition was that a master would not be liable for a servant’s wrongful act unless it was carried out in the course of employment. Salmond added that an act would be treated as within the course of employment if it was either: a wrongful act that the master had authorised, or a wrongful and unauthorised method of performing an act the master had authorised In the course of employment Before Lister v Hesley Hall (see below), a claimant would seek to establish that...

When evaluating a general damages claim, the practitioner ought initially to refer to the Judicial College Guidelines (JCG)...

This Practice Note This Practice Note reviews mechanisms used in settling litigation. A Tomlin order consists of a consent order paired with a schedule. It operates to stay proceedings on terms that have been agreed. The provisions contained in the schedule may remain confidential. This Practice Note describes the scope of confidentiality attaching to the schedule and sets out how it differs from a standard consent order. Sample wording for a Tomlin order is included, alongside links to precedents, as well as guidance on court approval. It also addresses varying, setting aside and enforcing a Tomlin order, including the considerations the court will take into account when handling applications for each. Further guidance is provided on interpreting and applying the relevant provisions of the CPR; however, some courts and divisions impose very specific requirements for both drafting and approval, and for approaching the schedule and confidentiality issues. Accordingly, you must consider the particular rules and court guide provisions in the forum where your claim is proceeding when drawing up the Tomlin order...