Webb v Barclays Bank Plc [2001] EWCA Civ 1141

Mrs Webb, a polio survivor, injured her knee tripping at work. Her consultant negligently advised amputation without proper investigation or discussing alternatives. The Court of Appeal held that had she been properly advised, she would not have consented to amputation, and apportioned liability between her employer and the NHS Trust.

Facts

Mrs Webb contracted polio as a child and had ongoing mobility issues. In 1994, while employed by Barclays Bank, she tripped on a protruding stone in their forecourt, hyper-extending her left knee. The injury caused gross instability and severe pain. Her consultant, Mr Jeffrey, employed by Portsmouth Hospitals NHS Trust, raised the option of above-knee amputation without conducting proper investigations into the cause of her pain or exploring alternative treatments such as modern bracing. Mrs Webb consented to the amputation in February 1995.

Mrs Webb sued her employer, the Bank, who settled her claim for £164,874.35. The Bank sought contribution from the Trust, arguing that Mr Jeffrey’s negligent advice caused the unnecessary amputation.

Issues

1. Was the Trust liable for negligent medical advice?

The court considered whether Mr Jeffrey breached his duty of care by failing to properly investigate Mrs Webb’s condition and by advising amputation prematurely without exploring alternatives.

2. What would Mrs Webb have done if properly advised?

The court examined whether, on the balance of probabilities, Mrs Webb would have rejected amputation had she received proper advice.

3. Did Mr Jeffrey’s negligence break the chain of causation from the Bank’s original negligence?

The court considered whether the medical negligence constituted a novus actus interveniens.

4. How should liability be apportioned between the tortfeasors?

Judgment

The Court of Appeal allowed the Bank’s cross-appeal, holding that the trial judge erred in applying a ‘loss of a chance’ approach rather than the balance of probabilities test.

“The breach of duty lies not in the amputation by itself, for any such allegation would be met with the counter that Mrs Webb had specifically consented to it, but rather in the failure to take the steps that were necessary to provide himself and Mrs Webb with the complete information necessary for a choice to be made.”

The court found that all six independent experts would not have advised amputation at that stage, with the consensus being:

“All agree that they would not have advised amputation. It has a notoriously bad outcome for old polio patients and it was the consensus of opinion that it would only be used as a very last resort.”

On causation, the court held that Mrs Webb would have accepted proper advice against amputation:

“Given the awesome finality of an above knee amputation, and the long history of confidence built up by the relationship between Mr Jeffrey and Mrs Webb, it seems to us improbable that if he had advised her, as he should, that the time for an amputation was premature… Mrs Webb would nonetheless have tried to persuade him to proceed to amputation.”

Regarding the chain of causation, the court applied the principle that medical negligence does not automatically break the chain:

“…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.”

Implications

This case establishes important principles regarding informed consent in medical treatment. A patient’s consent obtained without proper investigation and advice does not absolve a doctor from liability. The case also confirms that negligent medical treatment following an initial tort does not necessarily break the chain of causation, and liability may be apportioned between concurrent tortfeasors under the Civil Liability (Contribution) Act 1978.

The court apportioned liability 25% to the Bank and 75% to the Trust, reflecting the relative culpability for the amputation damages.

Verdict: The Trust’s appeal on the loss of a chance point was allowed, but the Bank’s cross-appeal succeeded. The Trust was held liable for contribution. Liability was apportioned 25% to the Bank and 75% to the Trust. The Trust was ordered to pay the Bank £89,808.75 plus interest.

Source: Webb v Barclays Bank Plc [2001] EWCA Civ 1141