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Medical Law Review/2019 Volume 27/February/Articles/Informed Consent to Medical Treatment Post-

Montgomery: Causation and Coincidence – Med Law Rev (2019) 27 (1): 108

Medical Law Review

Med Law Rev (2019) 27 (1): 108

1 February 2019

Informed Consent to Medical Treatment Post-Montgomery: Causation

and Coincidence
Gemma Turton

Leicester Law School, University of Leicester, University Road, Leicester LE1 7RH, UK

gemma.turton@le.ac.uk
© Oxford University Press 2019
Abstract: If a patient suffers physical harm during medical treatment when a risk materialises
which the doctor failed to warn the patient about, there are two key issues when a negligence
claim is brought by the patient. First, it must be shown that the doctor was negligent in failing to
warn the patient about the particular risk. Secondly, it must normally be shown that this failure to
warn was a cause of the damage suffered, although courts also allow claims to succeed when a
patient may still have undergone treatment even if adequately warned. The recent decision in
Montgomery v Lanarkshire HA [2015] UKSC 11 changes the test for the first of these steps, by
moving away from asking what a reasonable doctor would warn about and asking instead what a
reasonable patient, or indeed the actual patient, would want to know. This article considers how
that change ought to impact on the second step, causation. The first part of this article traces the
development of the law on the standard of disclosure of risks, from Sidaway to Montgomery in
order to expose the place that patient autonomy now occupies and the conception of autonomy
that underlies the decisions. The second section addresses the causation issues arising in cases of
medical non-disclosure of risk, and includes but is not limited to discussion of Chester. It first
considers the modified objective approach to proof of causation adopted in Canada and argues
that English law would be wise to reject such a development. The Chester problem is then
addressed, and the analysis will focus primarily on what is actually meant by 'coincidence' since
this term is often used but rarely explained. Finally, considering the situation that arises when the
risk that materialises is different from the risk about which the doctor failed to warn the patient, it
argues for a closer delineation of the relevant risks in English law.

Keywords: Causation, Chester, Coincidence, Informed consent, Montgomery, Negligence

Med Law Rev (2019) 27 (1): 108 at 109
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I. Introduction

If a patient suffers physical harm during medical treatment when a risk materialises about which
the doctor failed to warn the patient, there are two key issues to the patient's negligence claim.
First it must be shown that the doctor was negligent in failing to warn the patient about the
particular risk. Secondly it must normally be shown that this failure to warn was a cause of the
damage suffered. The recent decision in Montgomery v Lanarkshire Health Board (Scotland)
changes the test for the first of these steps, by moving away from asking what a reasonable doctor
would warn about and asking instead what a reasonable patient, or indeed the actual patient,
would want to know.1 This article considers how that change ought to impact on the second step,
causation.
At the causation stage, the English courts take a subjective approach asking whether, but for the
doctor's failure to warn, the patient would still have undergone the procedure. If the patient,
properly warned, would have refused the procedure then causation is established, whereas
causation cannot be established if the patient would still have undergone the same procedure,
carried out by the same doctor on the same day. Causation in this area is most notorious,
however, for the decision of the House of Lords in Chester v Afshar.2 The claimant in that case may
still have undergone the procedure but she would probably have taken more time to make her
decision, seeking a second opinion, so delaying the operation. In these circumstances the House of
Lords found that causation was not established on normal principles, although there is a lack of
clarity and consistency within the judgments as to whether that inability stemmed from a problem
of factual or legal causation. Yet the claim was allowed to succeed on the basis, in Lord Steyn's
terms, that a 'narrow and modest' departure from established legal principles was required in
order to vindicate the patient's right of autonomy and dignity. 3 The focus of this article is on the
future of the rule in Chester following the decision in Montgomery.
In the wake of Montgomery, academic commentary has identified two possible paths for the law
to take: if Chester is viewed as a claimant-friendly decision on causation that counter-balanced the
more defendant-friendly standard of care in Sidaway, then perhaps a return to conventional
principles of causation is appropriate now that Montgomery has shifted the focus of the standard
of care squarely on to the patient's interests. Alternatively, we may view Montgomery as
confirming the Chester position that patient autonomy is the central concern and thus expect
judicial development of the causation rules in a manner that gives even fuller protection to
autonomy.4
While much of the discussion in this article will concern Chester, it is not merely an analysis of the
problem and decision in that case as the primary concern is how the legal problem ought to be
addressed after Montgomery. The first substantive part of this article is therefore dedicated to
tracing the development of the law on the standard of disclosure of risks, from Sidaway to
Montgomery.5 In part this is a descriptive exercise, to outline the change in the law, but primarily
its aim is to expose the place that patient autonomy now occupies and the conception of
autonomy that underlies the decisions. The second part addresses the causation issues arising in
cases of medical non-disclosure of risk, and includes but is not limited to discussion of Chester.
There is a comparative element to the analysis here, with attention turning to Canada. With regard
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to the general approach to proof of causation, the patient-focused standard of care is counter-
balanced in Canada by a modified objective approach to proof of causation, and it will be argued
that English law would be wise to reject such a development. The Chester problem will be
addressed, and the analysis will focus primarily on what is actually meant by 'coincidence' since
this term is often used but rarely explained. Finally, the analysis of the causal issues will consider
the situation that arises when the risk that materialises is different from the risk about which the
doctor failed to warn the patient and will argue for a closer delineation of the relevant risks in
English law.

II. The change in the standard of risk disclosure in Montgomery

This section of the article unpacks the decision in Montgomery, exploring the foundations of the
patient-centred standard and the place of patient autonomy in order to subsequently address how
that can be reconciled with the causation requirements.
Montgomery represents the culmination of a gradual shift away from the reasonable doctor
approach that had been established in Sidaway and represents 'a “tidying up” of the law, rather
than a dramatic legal development'. 6 Under Sidaway, the standard of disclosure was determined in
the same way as clinical decisions, by application of the Bolam test,7 although Lord Bridge included
the limit, similar to that later established by Bolitho in respect of clinical judgment, 8 that '[a] judge
might in certain circumstances come to the conclusion that disclosure of a particular risk was so
obviously necessary to an informed choice on the part of the patient that no reasonably prudent
medical man would fail to make it'.9 The law developed in a more patient-centred direction
through the decisions in Pearce v United Bristol Healthcare NHS Trust,10 and Chester, and the
General Medical Council guidelines went further in developing a professional standard centred on
the patient's right to weigh up the various treatment options.11 This culminated in the standard of
disclosure as set out in Montgomery:
An adult person of sound mind is entitled to decide which, if any, of the available
forms of treatment to undergo, and her consent must be obtained before treatment
interfering with her bodily integrity is undertaken. The doctor is therefore under a
duty to take reasonable care to ensure that the patient is aware of any material risks
involved in any recommended treatment, and of any reasonable alternative or variant
treatments. The test of materiality is whether, in the circumstances of the particular
case, a reasonable person in the patient's position would be likely to attach
significance to the risk, or the doctor is or should reasonably be aware that the
particular patient would be likely to attach significance to it.12
This remains subject to a necessity exception, and a therapeutic privilege exception allowing the
doctor to withhold information if she reasonably considers that its disclosure would be seriously
detrimental to the patient's health. 13 However, the requirement that it would be seriously
detrimental emphasises the exceptional nature of the therapeutic privilege which the court clearly
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stated is not a backdoor route to allowing the doctor to withhold information simply because she
considers it to be in the patient's best interests.14
Despite the emphasis on patient autonomy, the Court of Appeal in Correia v University Hospital of
North Staffordshire NHS Trust confirmed that the issue of informed consent was not engaged
when the doctor's negligence arose in the performance of the operation. 15 In that case the
claimant had been properly warned about the risks of a three-stage operation, but the defendant
surgeon negligently failed to perform the third stage. The claimant continued to suffer pain but
was unable to prove that this was due to the omission of the third stage of the operation, and
instead formulated her claim as a failure to obtain informed consent to the two-stage procedure.
The court held that the negligent performance had not substantially changed the procedure so as
to negate consent, and noted the difficulties that would otherwise arise in similar cases where the
exact form of the operation cannot be determined until it is begun. 16 This is surely correct; if the
reformulation of the claim had succeeded, it would have engaged consent issues in virtually all
negligent mistreatment cases.

A. The Content of the Standard of Disclosure: What Does it Mean for the Doctor and
Patient?

The Montgomery standard is focused not solely on the provision of information, but on the need
for dialogue conducive to enabling the patient to understand and assess the risks involved in
treatment. The court insisted:

This role will only be performed effectively if the information provided is

comprehensible. The doctor's duty is not therefore fulfilled by bombarding the patient
with technical information which she cannot reasonably be expected to grasp, let
alone by routinely demanding her signature on a consent form.17

The disclosure of risk is therefore a process rather than merely an outcome; the concern is not
simply the provision of information, but facilitating understanding of the information.
Montgomery further requires not only an explanation of the risks and benefits of treatment, but
also of the alternatives, including non-treatment, and the comparative risks and benefits. 18 The
court also considered the realities of the relationship between the patient and doctor, noting that
'it has become far easier, and far more common, for members of the public to obtain information
about symptoms, investigations, treatment options, risks and side-effects via such media as the
internet…patient support groups, and leaflets issued by healthcare institutions'. 19 In light of this, it
would be 'a mistake to view patients as uninformed, incapable of understanding medical matters,
or wholly dependent upon a flow of information from doctors'. 20 It is said later that the social and
legal developments point away from 'treating patients as placing themselves in the hands of their
doctors' and instead to treating 'them so far as possible as adults who are capable of
understanding that medical treatment is uncertain of success and may involve risks, accepting
responsibility for the taking of risks affecting their own lives, and living with the consequences of
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their choices'.21 Furthermore, the court recognised that some patients will not want to know about
the risks and, if this is made clear, then the doctor is not required to discuss them.
This points to the centrality of respect for the patient's autonomy and dignity, whilst being
protective of patients who choose to trust their doctor or who are inhibited from asking questions.
At the same time, those patients who do weigh the information provided by their doctor alongside
information obtained online, from patient support groups, and from other sources, may find it
much more difficult to convincingly argue that they would have refused treatment if the doctor
had warned them about a particular risk, especially if their own research had revealed this risk. Yet
with such availability of information of varying reliability, it is arguable that the doctor retains an
authoritative status and her provision of information will often carry greater weight in a patient's
assessment of risks than the information gathered elsewhere.

B. The Conception of Autonomy Underpinning Montgomery

The detail of what Montgomery requires of the doctor in practice is important because it reflects
the conception of autonomy underpinning the decision and allows us to understand what place
patient autonomy occupies. Coggon has set out three main conceptions of autonomy: ideal desire
autonomy, best desire autonomy, and current desire autonomy. 22 Briefly, ideal desire autonomy
reflects 'what a person should want, measured by reference to some purportedly universal or
objective standard of values'; best desire autonomy captures a decision that reflects 'a person's
overall desire given his own values, even if this runs contrary to his immediate desire'; and current
desire autonomy 'reflects a person's immediate inclinations, ie what he thinks he wants in a given
moment without further reflection'.23
The doctor's duty set out in Montgomery most closely corresponds to a best desire account of
autonomy. The patient may be free to choose to pursue her current interests, as seen in Re T
where Lord Donaldson held that the competent patient's choice should be respected 'whether the
reasons for making that choice are rational, irrational, unknown or even non-existent'. 24 But the
ideal, promoted in Montgomery through the emphasis on dialogue and understanding, is to
enable her to weigh up the risks in order to reach a decision that reflects her own values and
priorities, ie best desire autonomy. This appears to address concerns raised following the High
Court decision in Al Hamwi v Johnston,25 where the claimant changed her mind about undergoing
an amniocentesis during the consultation with the defendant doctor when she erroneously
understood the doctor to be saying that the risk of miscarriage was 75% instead of just 1%.
Although she did not recall receiving it, she was also provided with a leaflet that correctly stated
the risk and the judge accepted that this was an 'appropriate way of conveying information'. 26 This
judgment attracted criticism for effectively abandoning the patient to a poorly informed decision,
since the doctor was not required to enquire as to why the patient had changed her mind. 27 This,
Maclean says, 'reflects a view that sees autonomy as isolational independence', yet he argues,
'however … autonomy is meaningless in the absence of a social context, which means any
meaningful conception must acknowledge and account for social cooperation and
interdependency'.28 In this sense, Montgomery marks a move away from what McCall Smith has
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criticised as 'portraying the value of autonomy as lying in the mere capacity to make the choice
rather than in the capacity to make a fulfilling choice'. 29
Purshouse has argued that the causation aspect of Chester reflects the current desire conception
of autonomy since 'Mr Afshar's actions were arguably perfectly justified under a best desire or
ideal desire version of autonomy as it would be irrational and not in Miss Chester's long-term
interests to refuse such an operation when it carried such small risks.' 30 The decision in
Montgomery, however, shows that a choice by Miss Chester to refuse the operation cannot easily
be dismissed as irrational:
The relative importance attached by patients to quality as against length of life, or to
physical appearance or bodily integrity as against the relief of pain, will vary from one
patient to another …. The doctor cannot form an objective, “medical” view of these
matters, and is therefore not in a position to take the “right” decision as a matter of
clinical judgment.31

The reference to the patient's own wider values and concerns indicates that Montgomery protects
the right of the patient to exercise best desire autonomy: while the law will protect current desire
autonomy, it seeks to ensure that the patient's best desire autonomy can be protected. This is
similarly seen in Chester, where it was important that the patient had the opportunity to reflect on
the risks before giving or withholding consent. It is important that the conception of autonomy
adopted at the breach of duty stage is subsequently reflected at the causation stage. On a
traditional approach to causation, it is generally best desire autonomy that can be effectively
protected rather than current desire autonomy since the patient will have difficulty persuading a
court on the balance of probabilities that they would have refused treatment if such a decision
cannot be explained by their wider values and priorities, but this is an obstacle of proof not
principle.

C. A Shift in Focus from Duty to Right?

The discussion here has proceeded from examining the content of the doctor's duty in order to
glean a clearer insight into the particular conception of autonomy underpinning the decision in
Montgomery, but it has been suggested that the law's starting point in these cases is now the
patient's right rather than the doctor's duty. Heywood highlights the emphasis placed on the right
rather than the duty by Lords Kerr and Reed in Montgomery, in their statement that 'the doctor's
duty of care takes its precise content from the needs, concerns and circumstances of the individual
patient',32 which, he argues, 'reconceptualised the nature of the doctor-patient relationship in the
eyes of the law'.33 He explains:

Negligence is often understood more in terms of duties than rights, with the resultant
effect that the legal inquiry has often concentrated principally on what a doctor
actually has to disclose in order to discharge her duty, as opposed to focusing on the
main consideration, which is why the patient needs the information in order to
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facilitate meaningful choice. The analysis, therefore, has frequently led off on the
wrong foot.34

However, while the patient's right to give informed consent may be used to flesh out the content
of the doctor's duty in practice, within a Hohfeldian framework of correlative rights and duties,
neither the right nor the duty are analytically prior. 35 In this context, the right and the reasons for
protecting that right are perhaps particularly well-articulated compared to other rights arising in
negligence, and this stems from the close and focused relationship between claimant and
defendant which arises with regularity in consistent circumstances, but this does not entail that
the law's concern is now the right rather than the duty, and the claimant rather than the
defendant. Instead the change in emphasis relates more to the law's starting point in fleshing out
the content of both the right and duty; it just happens that in this context the doctor's job and
duty are focused on the patient.
A more pressing concern, perhaps, is the subjectivity introduced by the 'particular patient' aspect
of the standard of disclosure, whereby a risk is considered material not only if the 'reasonable
patient' would attach significance to it, but also when 'the doctor is or should reasonably be aware
that the particular patient would be likely to attach significance to it'. 36 This is orthodox in so far as
it retains an element of objectivity in the limit that the doctor 'is or should reasonably be aware',
and we see similarly individualised duties shaped around what the employer knows or ought
reasonably to know about the particular employee in occupational stress cases. The increased
subjectivity comes in what positive steps the doctor can reasonably be expected to take to make
herself aware of the particular patient's concerns, and given the central importance of protecting
patient autonomy in this situation and the adoption of the patient's right as the starting point for
fleshing out the contours of the duty, this is a significant development. Amirthalingam has argued
that the problem with a patient-oriented approach to medical negligence 'is that the framework of
negligence, so committed to objectivity and balancing of risks, is not equipped to accommodate
the more subjective, moralistic underpinnings of a rights approach'. 37 In particular, he identifies
the decision of the High Court of Australia in Chappel v Hart as the 'classic example' of the fact that
this subjectivity means that 'the orthodox principles of negligence will sometimes be subject to
some distortion'.38 Heywood similarly maintains that since 'what a patient wants and needs in
terms of pre-operative information is an inherently subjective question … [a]ny set of legal rules
designed to give teeth to the right of autonomy must therefore remain sensitive to this issue'. 39
The task for the remainder of this article is to evaluate how far this is true: to what extent should
the patient-oriented approach to the standard of disclosure impact on the approach taken
towards causation?

III. Causation Post-Montgomery

Inevitably the question of how to approach causation in light of Montgomery calls into question
the future of the Chester decision, but analysis of Chester is just one aspect of this section.
Chester, and the Australian decision in Chappel v Hart,40 addresses the particular situation where it
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is not possible to say that the claimant would or would not have refused the procedure, only that
they would have delayed it. The first part of this section considers the approach to more
straightforward cases, contrasting the subjective approach taken in England and Australia with the
'modified objective approach' taken in Canada. It then moves on to the problem raised by Chappel
and Chester, beginning with an analysis of those decisions in order to clarify whether the problem
is one of factual or legal causation. Here, the under-analysed notion of coincidence is discussed.
Finally, the focus turns to delineating the scope of the undisclosed risk, with a particular focus on
the issue arising in the Australian case of Wallace v Kam of correspondence between the risk that
was undisclosed and the risk that materialised. 41

A. Straightforward Cases: Objective or Subjective Approach?

In both England and Australia the approach to factual causation is to ask whether the claimant
would have refused the treatment if she had been properly warned about the risks involved. This
is subjective;42 it asks what the claimant in particular would have done, and must be proved on the
balance of probabilities. In contrast, the Supreme Court of Canada in Reibl v Hughes has adopted a
'modified objective approach' which asks what the reasonable person in the patient's particular
position would agree to.43 It is considered here in light of the suggestion that English courts may
adopt a more stringent approach to causation now that the breach of duty inquiry is more patient-
friendly. There are great similarities in the way these two tests are applied since the subjective
approach still requires extrinsic evidence supporting the claimant's assertion as to her hypothetical
decision,44 but the modified objective approach is arguably based on a misunderstanding of the
subjective approach and is incompatible with autonomy-based reasons for protecting the patient's
right to give informed consent. In effect, the modified objective approach simply limits the
number of successful claims and its adoption would not be a welcome development, either for
patient rights or for the coherence of negligence law.
The Canadian approach is premised on the view that since 'it could hardly be expected that the
patient who is suing would admit that he would have agreed to have the surgery, even knowing
the accompanying risks … to apply a subjective test to causation would … put a premium on
hindsight'.45 This oversimplifies the subjective approach and ignores the requirement that the
claimant must establish their case on the balance of probabilities. It is not enough for a claimant to
say that they would have refused the treatment; they must be able to point to extrinsic evidence
indicating that there is truth to this. 46 Even if the starting point for determining the issue in English
cases is to identify what the reasonable patient would have decided, the court may then depart
from this if there is sufficient extrinsic evidence that the particular patient would still have decided
differently.47 Dissenting as to the modified objective approach in Arndt, McLachlin J appreciated
the requirements of the burden of proof, explaining 'the plaintiff's hindsight assertion at trial of
what she would have done is tested or evaluated by reference to the evidence as to her
circumstances and beliefs at the time the decision would have been made'. 48
Jackson identifies clearly the misconception at the heart of the modified objective approach: 'it
confused the question of the credibility of the claimant's evidence with its objective
reasonableness'.49 The effect of adopting the modified objective approach, as Jones argues, is that
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it becomes a control mechanism limiting the number of successful claims rather than 'strictly
speaking, a test of causation which, applying the general principles of the tort of negligence, is a
question of whether this damage would have been suffered by this plaintiff but for the defendant's
breach of duty'.50
In Reibl itself the claimant was able to show, on the modified objective approach, that he would
have delayed the operation had he known about the risk in order to work for longer so that he
would receive his full pension benefits. This external factor was one of his particular circumstances
that would also have affected the decision of the reasonable person. It is likely that the outcome in
many cases would be the same whether the court adopts the modified objective approach or the
subjective approach because the same external factors that would influence the reasonable
person in the patient's position in the modified objective approach would be evidence supporting
a finding on the balance of probabilities as to the particular patient. In this way, both approaches
seem to rely on a best desire version of autonomy since they require that the choice can be
accounted for by reference to the claimant's circumstances. One point of divergence is the
attitude taken to the claimant's beliefs rather than her external situation. In Videto v Kennedy in
the Ontario Court of Appeal, the claimant suffered bowel perforation during a sterilisation
operation and the reparative surgery resulted in a scar. 51 She had not been warned about the risk
of perforation and scarring, and claimed that she would have refused the operation had she
known because as a catholic she did not wish anyone other than her husband to know that she
had been sterilised. Ultimately the risk was not found to be material so the comments on
causation were made obiter, but the court suggested that it would be inappropriate to consider
her personal concerns. This indicates that the modified objective approach leans towards an ideal
desire version of autonomy rather than a best desire version, since it privileges a 'reasonable'
choice even when the claimant's hypothetical choice can be justified by reference to her wider
beliefs. This stands in contrast to the subjective approach; for example in Australia, although the
claimant's testimony as to what they would have done is inadmissible unless it is against their
interest,52 Carver and Smith note that this exclusion is of limited scope and 'a patient's own
testimony on matters such as their general “position, beliefs and fears” at the time of a procedure,
although in their favour, would remain admissible'. 53 Likewise in the English case of Smith, the
patient's religious or other strongly held convictions, and domestic or social considerations, are
listed among the kinds of extraneous factors that may support the claimant's assertions. Although
both the subjective and modified objective approaches will usually lead to the same result, the
subjective approach has the potential to protect a current desire version of autonomy so long as
the claimant can provide sufficient evidence of the choice she claims she would have made, while
the modified objective approach would not protect such choices. It is likely to be difficult to
establish on the balance of probabilities that the claimant would have made a choice that is
irrational given her wider beliefs and circumstances, but that barrier is evidential rather than
conceptual.

B. Chester and Chappel: A Problem of Factual or Legal Causation?

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The facts of these cases are well known but bear repeating. In Chappel v Hart, the claimant, Mrs
Hart, underwent an operation performed without negligence by the defendant surgeon. During
the operation, her oesophagus was perforated and an infection developed which led to paralysis
of the right vocal cord, meaning she suffered injury to her voice. The defendant had negligently
failed to warn her of this risk. If properly warned, she would not have refused the operation
entirely but would have delayed it in order to engage the most experienced surgeon possible.
There was some suggestion that the chance of perforation reduced with the increased skill of the
surgeon, but this was not accepted by all judges. 54 Indeed in accepting it, Kirby J explicitly stated
that 'no statistical or other evidence was called to demonstrate that recourse to a more
experienced surgeon would necessarily have reduced the risk of the kind of injury that occurred',
yet considered that 'intuition and commonsense suggest that the greater the skill and more
frequent the performance, the less the risk of any perforation'. 55 In Chester v Afshar, the claimant,
Mrs Chester, also underwent an operation performed without negligence by the defendant
surgeon. Nonetheless, she suffered nerve damage during the operation resulting in cauda equina
syndrome, leaving her with substantial disability. She had been anxious to avoid surgery if possible
but was not presented with non-surgical options, and the risks involved in surgery were not
adequately explained. If she had been properly warned about the risk she would not necessarily
have refused the operation entirely, but would have sought a second opinion about whether the
operation was necessary so the operation would at least have been delayed. Unlike Chappel, there
was no suggestion that the risk could have been reduced by seeking a more experienced surgeon.
The negligence claim in respect of the physical injury succeeded in both cases, and by the same
narrow 3:2 majority. While acknowledging that the case raised complex causal issues, the majority
in Chappel justified their decision on conventional causation principles, while the majority in
Chester seemed clear that causation was not established but found that exceptionally the claim
should be allowed to succeed. In negligence law, the causation inquiry is divided into factual and
legal causation: the factual issue is addressed, in straightforward cases, by applying the but-for
test to determine whether the damage would still have occurred if the defendant had taken
reasonable care, while legal causation addresses normative issues as to the appropriate scope of
liability such as remoteness and novus actus interveniens. Both judgments are characterised by a
lack of clarity in their approach to causation, with inconsistency in the various judges' speeches
and in academic commentary as to whether the problem is one of factual or legal causation.56
In both cases, factual causation can be established, without recourse to exceptional principles,
using the but-for test.57 The risk in Chester was 1–2%, and was extremely small in Chappel so on
the balance of probabilities it would not have materialised on a different occasion. This was
consistently recognised in the judgments in Chappel; even in his dissenting opinion, McHugh J
accepted that the but-for test was satisfied because without the failure to warn 'the injury would
not have occurred when it did and, statistically, the chance of it occurring during an operation on
another occasion was very small'. 58 The judgments in Chester were less consistent on this point.
Lord Bingham (dissenting) considered that the but-for test was not satisfied: 'the timing of the
operation is irrelevant to the injury she suffered…That injury would have been as liable to occur
whenever the surgery was performed and whoever performed it'. 59 Lord Steyn accepted that but-
for causation was established, explaining 'if she had agreed to surgery at a subsequent date, the
risk attendant upon it would have been the same, ie 1–2%. It is therefore improbable that she
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would have sustained neurological damage', 60 but he considered that legal causation was not
established. Lord Hoffmann (also dissenting) held that causation was not established on ordinary
principles, but it is unclear whether he understood that to be factual or legal causation.61 Lord
Hope briefly stated that the but-for test was 'easily satisfied', 62 and Lord Walker did not specify
whether the but-for test was satisfied. In Australia this has been settled clearly by the later
decision in Wallace v Kam, which stated that the problem is not one of factual causation since the
but-for test is satisfied,63 whereas the decision in Montgomery mistakenly treats it as an issue of
'but for' ie factual causation.64
This application of the but-for test has been criticised on the basis that it asks the causal question
in too narrow a manner; Green argues that the but-for test is not satisfied because the risk would
have been the same whenever the operation was performed. 65 This raises an important question
about how we use statistical evidence. Both approaches are premised on the idea that the risk
would be the same whenever the claimant underwent the operation, but one argument takes this
to mean that as the risk would have remained at 1–2% at a later date it would not, on the balance
of probabilities, have materialised, whereas the other argument takes it to mean that since the
risk would have been the same, the outcome would probably have been the same. There would be
some force to the latter approach if there were something in the medical evidence to show that
the fact that the risk materialised when it did indicated that the particular patient was in some way
predisposed to it materialising. But the evidence in Chester does not support this conclusion,
indeed the Court of Appeal clearly stated that there was not any evidence to show that the
claimant's constitution made her abnormally vulnerable to this type of surgery. 66 Similarly in
Chappel the evidence was that the damage to the vocal cords was the result of a number of
factors which cannot be considered as internal to the claimant. 67 Even the defendant doctor
conceded that in all likelihood the damage to the vocal cord would not have occurred if the
operation had been performed on a different occasion.68

Subsequent decisions have sought to confine the Chester principle narrowly, refusing to apply it
outside of the medical context,69 and insisting on directly analogous facts. 70 The recent decision in
Crossman v St George's Healthcare NHS Trust involved facts analogous to those of Chester but the
claim succeeded on the basis that the but-for test was satisfied so there was no need to consider
applying the Chester exception.71 By viewing Chester as having involved a problem of factual
causation, as the Montgomery decision also did,72 this approach effectively avoids recourse to the
Chester vindication of rights reasoning by correctly finding that factual causation is established.
The court failed, however, to note that Chester in fact gave rise to a problem of legal causation, so
on normal principles the Crossman claim ought properly to have failed because the harmful
outcome was a coincidence. The failure to appreciate the locus of the issue in Chester therefore
means that, as subsequent courts seek to constrain the impact of Chester, they fail to engage
properly with the issues raised in analogous cases. It is this concept of coincidence to which we
now turn.

C. Coincidences
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The notion of 'coincidence' is raised in the case law and in academic commentary, both as a way of
denying the causal link and as a way of establishing it. In simplistic terms, those who invoke
coincidence to deny causation argue that since the risk would have been the same whenever the
patient had the operation, the fact that it materialised on this particular occasion is merely
coincidental and not attributable to the failure to warn, while those who invoke coincidence to
establish causation argue that since the risk that materialised is the very risk of which the patient
should have been warned, we cannot dismiss it as a mere coincidence.73 This inconsistency in the
use of the notion of coincidence is accompanied in general by a failure to define what is meant by
the term 'coincidence'.74 For Clark and Nolan, this can be resolved through the 'risk principle' of
remoteness under which 'liability is imposed only where the consequence in question was the
materialisation of one of the risks that made the defendant's conduct negligence in the first
place'.75 This approach focuses on the purpose of the defendant's duty and, in light of the
apparent expansion of the purpose of the doctor's duty of disclosure to protect the patient's
autonomy rather than just her physical well-being in Montgomery, it has the potential to allow
recovery for a wider range of outcomes. While agreeing with Clark and Nolan that the claim in
Chester ought to have failed on orthodox negligence principles, the definition of a coincidence
developed here aims to avoid recourse to the purpose of the defendant's duty in order to maintain
a notion of coincidence that focuses squarely on the physical outcome and is less susceptible to
being side-lined following Montgomery.

1. Hart and Honoré on coincidences

The starting point for this analysis is the definition of a coincidence developed by Hart and Honoré
in Causation in the Law. A classic example used to illustrate a coincidence is that of a passenger in
a previously speeding car, killed by a falling tree. Although the driver's earlier excessive speed was
a factual cause of the passenger's death because it placed the passenger in the path of the tree at
the moment it fell, the fact of the driver's speeding is generally regarded as merely a coincidence
rather than a cause of the death. The aim of this section is to understand why we label this a
coincidence; what are the defining characteristics that separate a cause from a coincidence?
Hart and Honoré state:

We speak of a coincidence whenever the conjunction of two or more events in certain

spatial or temporal relations (1) is very unlikely by ordinary standards and (2) is for
some reason significant or important, provided (3) that they occur without human
contrivance and (4) are independent of each other.76

In the falling tree scenario we have two events in a particular spatial and temporal relation: the
presence of the claimant in the same time and place as the falling of the tree. This is judged by
ordinary standards to be very unlikely to happen. It is 'causally significant for it was a necessary
part of the process terminating in B's death'.77 The events occurred without human contrivance
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because, as a background assumption to the example, the defendant did not know that tree fall
was highly likely along that route and contrive to send the claimant that way. They were also
independent, in contrast with a scenario where the defendant pushes the claimant against the
tree which then falls.
Hart and Honoré regularly refer to their account as a 'common-sense notion of coincidence' and
are clear that our judgement in any instance depends upon two issues which cannot be precisely
defined: how unlikely must the conjunction of events be for us to consider it sufficiently unlikely to
be a coincidence, and in how much detail should we describe the two events? The second issue
they suggest should not be afforded much significance. They recognise the objection that the label
'coincidence' is just a function of our limited knowledge and that if we knew more about the state
of the tree etc. we would be able to predict its fall with certainty, so with a fuller description of the
event we would no longer call it a coincidence.78 They reply that this objection is mistaken since all
statements of likelihood or foreseeability are relative to limited knowledge, specifically to the
knowledge ordinarily available to the ordinary person. The first issue, they say, 'obviously … is not
susceptible of mathematical expression' and instead we need to rely on a common-sense point of
view.79 It is this requirement, that the conjunction of events in certain spatial or temporal relations
'is very unlikely by ordinary standards', 80 that seems most significant for Hart and Honoré in
characterising a 'coincidence', and to which we now turn.
Where the defendant moved the claimant from one place to another, or delayed/ accelerated her,
securing her presence at the time and place that the other event occurred, Hart and Honoré deny
causation but insist that this only constitutes a coincidence specifically if the conjunction of events
was also very unlikely by ordinary standards. In their view, causation cannot be established in such
cases unless the defendant's wrongdoing increased the risk of the other event occurring. 81 Yet they
insist that it would also be wrong to describe these as cases of coincidence unless the conjunction
of the events was also very unlikely by ordinary standards, although 'it should be borne in mind
that a given instance may exemplify both a conjunction which is coincidental because very unlikely
and one which is made no more likely by defendant's wrong'. 82 Hart and Honoré illustrate this
through the case of Berry v Borough of Sugar Notch where the claimant drove his tram faster than
allowed, and the defendants had negligently allowed a tree to remain at the side of the tram
lines.83 As the tram was passing the tree during a violent storm, it fell and crushed the roof,
injuring the claimant. In light of the violent storm we may not say that the likelihood of the tree
falling on a passing tram was unlikely to occur, so in their view it is not strictly coincidental, yet the
claimant's own speeding would still not be considered causal since it did not increase the
likelihood of the tram being hit by a falling tree.
This is a point of departure from modern accounts of coincidence; many commentators on
Chester v Afshar consider that the injury suffered was coincidental because the defendant's failure
to warn did not increase the risk of injury, since Ms Chester was ultimately willing to undergo the
operation with the same risks on a different occasion. 84 In contrast, if it is accepted that the
claimant in Chappel could have reduced the risk to which she was exposed by engaging a more
experienced surgeon, then the failure to warn did increase the risk of injury to which she was
exposed. Given the central role that risk creation plays in the tort of negligence, it seems likely that
our analysis of coincidence is shaped by the law's use of risk, but 'coincidence' is not an exclusively
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legal concept and it is important to be clear as to how our use of the term in law relates to its use
elsewhere. At this point, then, it is helpful to consider non-legal literature on the notion of
coincidence.

2. Coincidences outside the law: probabilistic independence

Owens gives the example of him coinciding with a long lost friend at the train station, where he
had gone to meet his mother while his friend was there to leave on a trip to Africa. 85 He explains
that 'our joint presence was the product of two independent causal processes either of which
could have come to fruition without the occurrence of the other'. 86 His presence at the station has
causes, and his friend's presence also has causes, and he accepts that 'given that I intended to
meet my mother and my friend meant to leave for Africa and circumstances were otherwise as
they were, our meeting was inevitable'.87 Yet the meeting itself remains a coincidence: 'we must
not infer that the meeting itself has a cause from the fact that the meeting's constituting events all
have causes – different causes produce the various elements of an accident but no cause brings
them all about'.88 For him, then, the important feature is that no single cause is involved in both his
presence and his friend's. The causes bring about the two separate elements but independently
so, nothing explains the meeting: 'the factors invoked to explain the outcome do not mesh with
one another in such a way as to provide an explanation for it – they do not unite to produce it'. 89
Focusing on the requirement of the absence of a common cause, Lando argues that the two
events may indeed share a common salient cause through his 'piano' example:

A boy is playing with a ball in the courtyard of an apartment complex. He throws the
ball too high, and it bounces off of the balcony of one apartment, sails through the air,
bounces onto the balcony of another apartment, and finally falls to the ground. On
each of the two balconies sits a grand piano. As the ball lands on the first balcony it
strikes a note on the first piano, and as the ball lands on the second balcony, it strikes
a note on the second piano. On each of the two pianos, the note struck is the high A. 90

He explains that it is a coincidence that the same note is struck on both pianos, but points to the
fact that the striking of the high A on each piano has a common cause: the throw of the ball.
Indeed, the ball's trajectory in hitting the first piano must have determined its trajectory towards
the second piano, so there is a common cause and the events are not independent. He varies the
explanation of the positioning of the pianos, to include pianos that have been in the same place
for 75 years so their positioning cannot be described as salient, or pianos that are dropped from
the same plane so share a common cause behind their positioning. He insists that either way the
striking of the same note is still a coincidence, even when the facts are manipulated so that 'none
of the salient causes of one of the constituent events is independent of the salient causes of the
other constituent event'.91 In order to continue to describe this as a coincidence, Lando
emphasises the distinction between causation and causal explanation:
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In general, we should be quite wary of inferring facts about what can or cannot be
explained from facts about what caused what. For to explain is not simply to cite a
cause … [I]n Pianos, the throw of the ball caused each of the A notes to be struck. By
separating causation from causal explanation, however, we can still maintain that
there is no explanation for the fact that the same note was struck.92
He explains that the fact the same note was struck is a relational fact, and 'to explain the relational
fact, it is not enough to show separately why each of the relata had to be what it was. We want a
reason for the relationship itself, the fact that the notes matched'.93 The reason we cannot explain
the relational fact is that the two relata are 'probabilistically independent'. 94 It is here, then, that
probability becomes important. Just as 'an A on the first piano does not guarantee or make more
probable an A on the second', in the earlier tree example the driver's speeding does not make the
fall of the tree any more probable. It seems then that Hart and Honoré focus unnecessarily on the
requirement of a low probability of the conjunction of the two events, and the key feature
marking their conjunction as coincidental is that they are probabilistically independent.
This distinction between a cause and a causal explanation broadly corresponds with the distinction
between factual and legal causation. Returning to the tree fall scenario, in negligence we would
apply the but-for test for factual causation, and it seems that Lando would acknowledge that the
defendant's earlier speeding is a cause of the claimant being present at the place and time where
the tree fell. What we lack, however, is an explanation of why the tree also fell at that precise
time, and most importantly there is no causal explanation for the relational fact that it fell at the
precise moment the claimant was beneath it because the two events are probabilistically
independent.
Let us now consider how this account of coincidence would apply to some of the hypothetical
scenarios contemplated in Chappel and Chester where the operating theatre is struck by lightning
or the patient is harmed by an unforeseeable reaction to anaesthesia or hospital-acquired illness.
It is straightforward to see that the lightning strike scenario involves a coincidence: since the two
events, undergoing an operation in that theatre at that time and the theatre being struck by
lightning, are clearly probabilistically independent, there is no common cause and no
interdependence. As O'Sullivan says, a lightning strike 'is easy to dismiss as a coincidence … since a
lightning strike is no more likely in hospital than anywhere else'. 95 However she finds the other
situations less clear-cut: '[o]ther risks associated with surgery or being in hospital cannot be quite
so lightly dismissed as coincidences, but it nonetheless seems an appropriate compromise to
exonerate the doctor for all 'but for' consequences apart from precisely those about which he
should have warned',96 and 'the occurrence of harm should not be regarded as a coincidence,
where it is the very harm about which the defendant should have warned'. 97 This solution, based
as it is in vague notions of fairness, is unprincipled and unsatisfactory. Instead we need to return
to the definition of a coincidence as involving two events that are probabilistically independent, so
that one does not increase the probability (ie degree of risk) of the other. We should not be
distracted by the fact that the two events—the patient undergoing the operation on that day and
the undisclosed risk/anaesthetic risk/hospital acquired infection risk materialising—share a
common cause in the doctor's non-disclosure of a material risk. The relevant question is whether
one event increases the probability of the other event, and non-disclosure only affects the degree
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of risk to which the patient is exposed if the patient would have taken steps to reduce that risk,
either by refusing the treatment altogether or by seeking a more skilled surgeon capable of
operating at a lower level of risk. If the patient would merely have postponed the operation then
the degree of risk to which she is exposed is unaffected by the non-disclosure, so its
materialisation is coincidental.
Clark and Nolan object that this kind of ex post analysis of risk, which imports an element of
hindsight as to whether the patient would have chosen to undergo the operation if warned of the
risk, is incoherent since 'risk is a forward-looking concept predicated on uncertainty as to the
future'.98 Yet the causation inquiry is a backwards-looking inquiry that is concerned with how
things turned out,99 so it is appropriate to ask whether, as things turned out, the risk of damage
was increased for the claimant. This is perhaps clearer if we consider a scenario other than non-
disclosure of risk. In the Australian case of Paul v Cooke, the defendant doctor negligently failed to
diagnose the claimant's aneurysm with the result that diagnosis was delayed by 3 years. 100 When
she eventually underwent surgery to treat the aneurysm it ruptured and she suffered a stroke and
serious injuries. The causation question was whether she would have suffered these injuries if the
condition had been diagnosed and treated 3 years earlier. Although the risk of rupture given
timely diagnosis was very small, so but-for causation was satisfied, the evidence showed that her
condition had not actually worsened during the period of delay, so the risk of rupture when the
operation eventually took place was no higher. 101 The claim failed on the basis of s5I Civil Liability
Act 2002 (NSW) which excludes liability for the materialisation of an inherent risk, but the NSW
Court of Appeal found that it would also fail on normal causation principles since the delay did not
lead to the materialisation of a risk other than the risk involved in the medical procedure itself.102
The misdiagnosis clearly did expose the patient ex ante to certain risks such as the risk of
spontaneous rupture and also the risk of the condition worsening so that the inherent risks in
treatment would be higher. But as it turned out ex post, the risk of the condition worsening did
not materialise so the inherent risks in treatment were unaffected. Likewise in non-disclosure
cases, ex ante the non-disclosure increases the risk of harm to the patient by creating the potential
for the patient to be exposed to the inherent physical risk. 103 But ex post it only affected the
degree of risk, i.e. the probability of harm, if the patient would have declined the operation or
otherwise sought to reduce the risk.

3. Advantages of a probabilistic account of coincidence

The result of this probabilistic account of coincidence is similar to that achieved by Clark and
Nolan, who argue that the damage in Chester is coincidental because 'in a tort context coincidental
damage is properly understood as damage which is not attributable to that which made the
defendant's conduct wrongful, which in negligence means damage that does not represent the
materialisation of one of the risks that made the defendant's conduct negligent'. 104 In the failure to
warn context, they add the 'important gloss' that 'while conduct is generally negligent because it
exposes the claimant (and others similarly situated) to excessive risks in totality, the conduct of a
doctor in a medical non-disclosure case is negligent because it robs the patient of the opportunity
to make an informed choice as to whether or not to run a particular risk. And it follows that the
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risk that makes the non-disclosure negligent is not the risk of the complication in question coming
about per se, but the risk of the complication in question coming about when the patient was
unwilling to subject herself to that risk' (emphasis in original).105 They later add the caveats that
while the primary purpose of the duty to warn is to give the patient the opportunity to avoid
running the risk altogether, 'there are also two secondary purposes: to give the patient the
opportunity to reduce the risk; and to give the patient the opportunity to defer the risk until a
later time'.106 This means that a claim should succeed, in their view, where the patient would have
sought to reduce the risk, perhaps as in Chappel by engaging a more skilled surgeon, or where the
patient would consciously have chosen to delay the operation, perhaps as in Reibl in order to
accrue pension entitlement, but not where a delay would simply have been a by-product of taking
further time to reflect as in Chester. The approach based on probabilistic independence diverges
on this final point and, it is argued, is preferable for two reasons.
First, if the patient would have been willing to run the same physical risk at a later date when the
financial consequences alone would have differed, the materialisation of the physical harm
remains coincidental. The damage forming the gist of the negligence action is the physical harm,
the financial consequences go to the question of damages, 107 and it seems strange to conclude
that physical harm was non-coincidental simply because the claimant would have wanted to avoid
its financial consequences when she was willing to run the risk of the physical harm itself.
Secondly, making the coincidence inquiry depend on the purpose of the duty of disclosure makes
it susceptible to narrowing as the protection of patient autonomy acquires a more central role in
shaping the duty. As we saw previously, the decision in Montgomery emphasised the individual
patient's concerns, drawing on the GMC guidelines explaining that the patient weighs up 'potential
benefits, risks and burdens of the various options as well as any non-clinical issues that are
relevant to them',108 and repeating that the evaluation of risk is 'sensitive also to the characteristics
of the patient'.109 If the law is willing to protect a patient's decision when to run a risk when that
decision is motivated by financial reasons, why not also protect such a decision motivated by non-
financial reasons? It could be argued in response that Clark and Nolan's approach sees patient
autonomy as instrumentally valuable rather than intrinsically valuable, but it is unclear that the
same view is taken by the court in Montgomery and it is unclear why only financially motivated
decisions should be protected. If the patient would have chosen to delay the procedure perhaps
until their children are slightly older and more independent, or in order to enjoy an upcoming trip,
this is surely equally deserving of protection.
Although the decision in Montgomery has brought the standard of disclosure in line with the
Australian standard established in Rogers v Whitaker,110 a contrast is visible between the views of
the English and Australian courts towards the purpose of the duty. In Wallace v Kam, the High
Court of Australia stated clearly that '[t]he duty to inform the patient of inherent material risks is
imposed to enable the patient to choose whether or not to run those inherent risks and thereby
“to avoid the occurrence of the particular physical injury the risk of which [the] patient is not
prepared to accept”'.111 The focus is directly on the avoidance of physical harm. In contrast, in
Montgomery, Lord Kerr and Lord Reed stated that '[t]he rationale of the duty … [i]s “to enable
adult patients of sound mind to make for themselves decisions intimately affecting their own lives
and bodies”'.112 Lady Hale similarly stated that 'the interest which the law of negligence protects is
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a person's interest in their own physical and psychiatric integrity, an important feature of which is
their autonomy, their freedom to decide what shall and shall not be done with their body'. 113
There is some indication that the court is concerned with enabling the patient to avoid risks that
they are not willing to run, notably where patients are described as 'adults who are capable of
understanding that medical treatment is uncertain of success and may involve risks, accepting
responsibility for the taking of risks affecting their own lives, and living with the consequences of
their choices'.114 But there was also clear concern to protect the patient's choice itself, notably
when Lady Hale discussed the implication that the defendant doctor was making 'a judgment that
vaginal delivery is in some way morally preferable to a caesarean section'. 115 She explained, 'once
the argument departs from purely medical considerations and involves value judgments of this
sort … [a] patient is entitled to take into account her own values, her own assessment of the
comparative merits of giving birth in the “natural” and traditional way and of giving birth by
caesarean section, whatever medical opinion may say, alongside the medical evaluation of the
risks to herself and her baby'. 116 The duty is not limited to enabling the patient to decide which
risks she is willing to accept, but is also focused on protecting her right to make that decision in
line with her own values. This sits in tension with the fact that it is still the physical harm that is the
damage forming the gist of the negligence action; loss of autonomy itself is not currently
recognised as damage in negligence.117
If legal causation is to be addressed by asking whether 'the consequence in question was the
materialisation of one of the risks that made the defendant's conduct negligent in the first
place',118 then English courts should follow the Australian High Court in Wallace in distinguishing
the scope of liability from the scope of the duty. 119 In that decision, the court explained:

[T]he policy of the law in imposing the duty on the negligent party will ordinarily be
furthered by holding the negligent party liable for all harm that occurs in fact if that
harm would not have occurred but for the breach of that duty and if the harm was of
a kind the risk of which it was the duty of the negligent party to use reasonable care
and skill to avoid. However, the scope of liability in negligence is not always so
coextensive: '[t]he scope of liability for negligence finds its genesis but not its
exhaustive definition in the formulation of the duty of care'. That is in part because
the elements of duty and causation of damage in the wrong of negligence serve
different functions (the former imposing a forward-looking rule of conduct; the latter
imposing a backward-looking attribution of responsibility for breach of the rule) with
the result that the policy considerations informing each may be different.120

Shaping the content of the duty around the patient's autonomy has the forward-looking function
of guiding doctors' behaviour. Indeed in Montgomery it was said that while 'the General Medical
Council has long required a broadly similar approach', it is 'nevertheless necessary to impose legal
obligations so that even those doctors who have less skill or inclination for communication, or who
are more hurried, are obliged to pause and engage in the discussion which the law requires'. 121
Allowing claims to fail where causation is not established will not empty that duty of content as
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Lords Hope and Walker suggested in Chester,122 because there will still be claims where causation
can be established. But the purpose of negligence liability, at least on an orthodox understanding,
is not to vindicate the rights of the claimant but to allocate responsibility for harm suffered. The
causation requirement plays a vital role in this allocation of responsibility by requiring not only
that the defendant's negligence in fact caused the damage suffered by the claimant, but also in
declining to hold the doctor responsible and therefore liable for the materialisation of a risk that
the claimant was willing to run. As Carver and Smith have explained, although the decision in
Wallace may appear to 'de-emphasise patient autonomy or the protection of this right … it must
be remembered that the medical practitioner's duty to advise of material risks inherent in
undergoing or forgoing treatment takes the form of an action in negligence and not battery. It
therefore requires a claimant to establish the causation of damage or harm as an essential
element'.123 In setting the standard of disclosure we saw that Montgomery values autonomy for
providing the patient with the capacity to make a fulfilling choice, yet negligence is traditionally
only concerned with one aspect of a choice being 'fulfilling' and that is in its capacity to avoid
physical harm. The shift in emphasis from the doctor's duty to the patient's right in Montgomery
has entailed a subjectivisation of the content of the duty, but ought not to alter the overall
purpose of negligence liability which is a system of responsibility for harm rather than a system of
vindication of rights.

D. Delineating the Risks

Wallace was not a delay case, but a straightforward causation case in that the patient would have
refused the operation if he had been properly warned of the risks. The complication arose because
the defendant doctor had negligently failed to warn the patient about two risks, the risk of
bilateral femoral neurapraxia which involves temporary paralysis due to damage to the nerves in
the thigh as a result of lying on the operating table for an extended period, and the risk, assessed
as one in twenty, of permanent and catastrophic paralysis due to damage to spinal nerves during
the operation. The risk that materialised was the temporary paralysis. If the claimant had been
warned of the more serious risk of permanent paralysis he would have refused the operation, so
but-for causation was established between the breach and the damage. But the courts at all
stages found that he would still have undergone the operation (when he did) had he been warned
of the lesser risk which actually materialised so the claim failed at the scope of liability stage. 124 In
other words, the claimant would not have undergone the operation if the doctor had fulfilled his
duty by warning of both risks, but would still have undergone the operation had he been warned
only of the risk that actually materialised. The distinction between the scope of the duty and the
scope of liability discussed above was central to this decision since the scope of the duty required
a warning both of the lesser risk that materialised and of the more serious risk that did not
materialise, but in the court's view the scope of liability was limited to those risks that the patient
was unwilling to run. Thus, there could be no liability where the patient would have accepted the
risk that actually materialised. The court felt able to make this distinction between the risks
because they were described as distinct in nature, 125 which reflects the definition of a coincidence,
developed above, as involving two events that are probabilistically independent. We can see this
more clearly if we look at the detail of the court's reasoning which distinguished between the
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extent and the nature of risk. In Moyes v Lothian Health Board, Lord Caplan had said that where an
operation would ordinarily give rise to a 1% risk of harm but the risk is 5% due to risk factors
specific to the particular patient, the doctor who negligently fails to disclose the additional risk
factors should be liable if the risk materialises regardless of whether the harm is physiologically
due to the standard risk factor or one of the other factors specific to the individual. This was
because 'by going through an operation with five risk factors rather than one the patient was
exposed to a degree of risk materially in excess of what the patient had been warned about and
was prepared to accept'.126
The court in Wallace approved of this reasoning, but distinguished the facts of Wallace:

That reasoning, and its conclusion, are entirely appropriate to a case that involves the
coming home of the risk of a single physical injury to which there are several
contributing factors the combination of which operate to increase the risk of that
physical injury occurring… .The reasoning, however, is not directed or applicable to a
case such as the present where what is involved is the materialisation of one of a
number of distinct risks of different physical injuries. To fail to warn the patient of one
risk while informing the patient of another may still in such a case be to expose the
patient to a level of risk of physical injury occurring that is unacceptable to the patient.
But the risk of physical injury that comes home in such a case is not necessarily the
risk of physical injury that is unacceptable to the patient. 127

In Wallace, for example, it had been found that the claimant's weight increased the probability
and magnitude of the risk of neurapraxia, so if the patient had been warned about the degree of
risk of neurapraxia affecting an average person but not the increased risk due to his particular
circumstances, then the doctor would still be liable if the neurapraxia materialised only to the
extent expected in an average person. Carver and Smith raise a concern about how multiple risks
are to be described and whether the description at the causation stage of the negligence inquiry
corresponds to the description ordinarily given by the doctor when advising of the risks. For
example, the two risks in Wallace both involved nerve damage, and both could be understood in
terms of paraplegia, so a doctor might warn the patient about the overall risk of nerve damage or
of some degree of paraplegia. The court focused, however, on the different nature of the physical
injuries, temporary paraplegia being qualitatively different from permanent paraplegia.
The Wallace distinction between degree and nature of risk is correct in principle but may be
complex to implement, as is apparent from the facts of Montgomery. In that case, there was a 9–
10% risk of shoulder dystocia which was a 'major obstetric emergency' that may or may not have
longer term consequences, but would require difficult manoeuvres to either deliver the baby
vaginally or push the baby back into the uterus so an emergency caesarean section could be
performed.128 If shoulder dystocia occurred then it entailed various risks to the mother—an 11%
risk of postpartum haemorrhage and a 3.8% risk of fourth degree perineal tears; and also various
risks to the baby—a 0.2% risk of brachial plexus injury (damage to the nerve roots connecting the
arm to the spinal cord) which may be transient or permanent, and a less than 0.1% risk of
umbilical cord occlusion leading to cerebral palsy or possibly death. At first instance the court had
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focused on whether the doctor should have warned of the 0.2% risk of brachial plexus injury as
that was the risk of 'grave adverse consequences' and the harm that materialised, but the
Supreme Court focused on the 9–10% risk of shoulder dystocia. Each of these consequences—
shoulder dystocia, postpartum haemorrhage, perineal tears, brachial plexus injury to the baby
both transient and permanent, cerebral palsy, and death—are of a different nature, and yet it
would be difficult to describe them as being distinct because the risk of each outcome depends
upon the risk of shoulder dystocia occurring in the first instance. Because they are not
probabilistically independent—if the risk of shoulder dystocia materializes, then the subsequent
risk of each outcome is as set out above—these outcomes arguably go to the extent of the risk. If
the mother is unwilling to accept the risk of shoulder dystocia then she implicitly also rejects the
subsidiary risks too. Should it matter if her reasons for being unwilling to accept the risk of
shoulder dystocia all relate to her own wellbeing rather than that of the child, if the harm that
occurs is to the child? Although she is, in that scenario, willing to accept a risk of harm to the baby,
she cannot in fact accept the risk to the baby without also accepting the risks to herself because
they all stem from the overall risk of shoulder dystocia.
Bagshaw says that the court 'overlooked a further wrinkle caused by their reformulation of the
relevant duty as one to warn Mrs Montgomery because of the significant risks to her health: the
claim was on behalf of the injured child, but was being anchored to unreasonable endangerment
of his mother'.129 There are two misconceptions here. First, the focus on the risk of shoulder
dystocia rather than brachial plexus injury means that the court was concerned with the risks to
the mother as well as the risks to the child, rather than instead of the risks to the child. Lady Hale
in particular noted this, 'one of the problems in this case was that for too long the focus was on
the risks to the baby, without also taking into account what the mother might face in the process
of giving birth'.130 The two are not mutually exclusive. This leads to the second misconception,
which is the implication that the damage was suffered by the baby but the breach of duty related
only to the risks to the mother. The risks to the mother and the baby could not be separated
because both derived from the initial risk of shoulder dystocia.
The English courts have not appreciated this point in post-Montgomery case law. In Webster v
Burton Hospitals,131 the claimant had been born with physical and cognitive impairment caused by
an injury to his brain in the period 72–48 hours before his delivery caused by a short period of
compression of the umbilical cord. During his mother's pregnancy there had been issues raised
about risks to the baby, and the court at first instance found that if the mother had been advised
that there were risks in waiting until the expected birth date and offered an induction, she would
have wanted the induction because 'she was fed up with the pregnancy and with the lack of well-
being'.132 The risks, however, related to the baby's development but did not specifically include a
risk of cord damage in utero. The court's analysis focused on the breach of duty, and there seems
to have been no discussion of the fact that the risks that should have been explained and would
have led to the mother opting for an earlier induction were distinct from the risk that in fact
materialised. If the doctor had warned of the risks to the baby then the mother would have opted
for induction and the harm that actually occurred would have been avoided, so the but-for test is
satisfied, but the risk that materialised was not a risk specific to this baby and there is no
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suggestion in the judgment that the mother should have been warned about it. Thus, the harm is
coincidental to the failure to warn of other risks.

IV. Conclusion

The patient-centred standard of medical risk disclosure enshrined in Montgomery is in many ways
a welcome development, and at the factual causation stage courts should avoid artificially
restricting liability through adoption of a 'modified objective approach' such as applies in Canada.
Yet at the legal causation stage, it is important that courts do not lose sight of the function of
negligence liability which is not simply concerned with the vindication of rights. Causation of
damage is an essential element of negligence and as yet interference with autonomy is not a
recognised form of damage in negligence. 133 A detailed discussion of autonomy damage is beyond
the scope of this article, although it is noteworthy that the English Court of Appeal recently
rejected the argument that interference with a patient's autonomy constituted a distinct form of
damage.134 This would also be of limited practical use in a case like Montgomery where the
physical harm was to the baby, but the autonomy interest interfered with was the mother's.
Although Montgomery brings the standard of medical risk disclosure in the UK in line with the
patient-centred standard established in the Australian case in Rogers v Whitaker, Montgomery
goes further in treating the protection of patient autonomy as at least part of the purpose of the
duty of disclosure. The Australian courts are clear that the purpose of the duty of disclosure is to
enable the patient to choose whether or not to run certain risks and thereby avoid the occurrence
of physical injury, the risk of which the patient is not prepared to accept. 135 In contrast, in
Montgomery the rationale of the duty was described as 'to enable adult patients of sound mind to
make for themselves decisions intimately affecting their own lives and bodies'. 136 This means that a
test of legal causation that depends on the scope of the duty is likely to have an expansionary
effect on liability, as the purpose of the duty itself is widened. The definition of coincidence
developed in this article avoids recourse to the purpose of the duty by focusing instead on
whether the doctor's negligence and the risk that materialises are probabilistically independent.
From an ex ante perspective the doctor does potentially expose the patient to the inherent risks in
treatment but ex post her negligence does not increase the risk of harm to the patient if the
patient would be willing to run the risk if it were disclosed. The same is true in delayed diagnosis
cases where the risk that materialises is one of the inherent risks of treatment and that risk has
not in fact been increased by the delay. These are issues that English courts must confront directly
rather than circumventing them by simply accepting that factual causation is established on a 'but
for' basis and ending the inquiry there.

Conflict of interest statement. This paper received funding from the SLS Research Activities Fund
and the University of Leicester.
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Acknowledgements
The work on this article was supported by a period of research leave including a period as a visiting academic at
Sydney Law School with the academic support of David Hamer, and the financial support detailed above. I am grateful
to participants at various seminars and the SLS conference for their feedback as well as David Hamer and Jose Miola
for their comments on earlier drafts.
1
     [2015] UKSC 11, [2015] AC 1430.
2
     [2004] UKHL 41, [2005] 1 AC 134.
3
     ibid [24].
4
     R Heywood, 'R.I.P. Sidaway: Patient-Oriented Disclosure – A Standard Worth Waiting For?' (2015) 23 Med L Rev 455, 461–62; A-M Farrell and
M Brazier, 'Not So New Directions in the Law of Consent: Examining Montgomery v Lanarkshire Health Board' (2016) 42 J Med Ethics 85, 88.
5
     Sidaway v Board of Governors of the Bethlem Royal Hospital [1985] AC 871 (HL).
6
     T Elliott, 'A Break with the Past? Or More of the Same?' [2015] 31 PN 190, 194.
7
     Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 (QBD).
8
     Bolitho v City and Hackney HA [1998] AC 232 (HL).
9
     Sidaway (n 5) 663 (Lord Bridge). Miola discusses the difficulty of discerning the ratio of the decision in Sidaway: J Miola, 'On the Materiality of
Risk: Paper Tigers and Panaceas' (2009) 17 Med L Rev 76. For the purpose of this article, however, detailed discussion is unnecessary.
10
     (1998) 48 BMLR 118 (CA).
11
     Montgomery (n 1) [78] citing GMC Guideline: 'Consent: patients and doctors making decisions together' (2008).
12
     ibid [87].
13
     ibid [88].
14
     ibid [91].
15
     [2017] EWCA Civ 356.
16
     ibid [27].
17
     ibid [90].
18
     This is limited to the range of available alternative treatments; the patient's autonomy interest does not create a limitless right to demand
treatment because with publically funded healthcare provision, concerns of distributive justice constrain the extent to which one patient's choices can
be placed ahead of others.
19
     Montgomery (n 1) [76].
20
     ibid [76].
21
     ibid [81].
22
     J Coggon, 'Varied and Principled Understandings of Autonomy in English Law: Justifiable Inconsistency or Blinkered Moralism?' (2007) 15
Health Care Anal 235.
23
     ibid 240.
24
     In Re T (Adult: Refusal of Treatment) (1993) Fam 95.
25
     Al Hamwi v Johnston and another [2005] EWHC 206.
26
     ibid [54].
27
     A Maclean, 'From Sidaway to Pearce and Beyond: Is the Legal Regulation of Consent Any Better Following a Quarter of a Century of Judicial
Scrutiny?' (2012) 20 Med L Rev 108, 127. See also J Miola, 'Autonomy Rued Ok?' (2006) 14 Med L Rev 108, 113.
28
     A Maclean, 'Autonomy, Consent and Persuasion' (2006) 13 European J Health L 321, 328.
29
     A McCall Smith, 'Beyond Autonomy' (1997) 14 J Contemp Health L Pol'y 23, 30.
30
     C Purshouse, 'How Should Autonomy Be Defined in Medical Negligence Cases?' (2015) 10 Clin Ethics 107, 111.
31
     Montgomery (n 1) [46].
32
     ibid [73].
33
     Heywood (n 4) 462.
34
     ibid 462.
35
     D Nolan and A Robertson, 'Rights and Private Law' in D Nolan and A Robertson (eds), Rights and Private Law (Hart Publishing 2014) 13–14.
36
     Montgomery (n 1) [87].
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37
     K Amirthalingam, 'A New Dawn for Patient's Rights?' (2001) 117 LQR 532, 535.
38
     ibid 535.
39
     Heywood (n 4) 460. See also R Heywood, 'Subjectivity in Risk Disclosure: Considering the Position of the Particular Patient' (2009) 25 PN 3.
40
     [1998] HCA 55, (1998) 195 CLR 232.
41
     [2013] HCA 19, (2013) 87 ALJR 648.
42
     As the causation inquiry is throughout negligence: the law's concern is what would actually have happened rather than what often happens.
Smith v Barking, Havering and Brentwood HA [1994] 5 Med L Rev 285.
43
     [1980] 2 SCR 880 (SCC); reaffirmed in Arndt v Smith [1997] 2 SCR 539 (SCC) confirming that the orthodox subjective approach applies in
products liability cases such as the manufacture of breast implants (Hollis v Birch [1995] 4 SCR 634 (SCC) while the modified objective approach
applies in claims against doctors for non-disclosure of risk).
44
     Smith (n 42).
45
     Reibl (n 43) [24] (Laskin CJ).
46
     This was similarly recognised by the HCA in Rosenberg v Percival [2001] HCA 18, (2001) 205 CLR 434 and the New South Wales Supreme
Court in Richards v Rahilly [2005] NSWSC 352: 'the reliability of such evidence needs to be assessed by reference to other evidence' [257] (Hoeben
J), although s 5D3b Civil Liability Act 2002 (NSW), replicated in other states, states that 'any statement made by the person after suffering the harm
about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest'.
47
     Smith (n 42).
48
     Arndt (n 43) [42] (McLachlin J). See also P Osborne, 'Causation and the Emerging Canadian Doctrine of Informed Consent to Medical
Treatment' (1985) 33 CCLT 131, 141.
49
     E Jackson, '“Informed Consent” to Medical Treatment and the Impotence of Tort' in S McLean (ed), First Do No Harm (Ashgate 2006) 283
(emphasis in original).
50
     M Jones, 'Failure to Warn: Establishing the Causal Link' (1994) 10 PN 24, 24 (emphasis in original).
51
     (1981) 33 OR (2d) 497 (Ont CA).
52
     s 5D(3)(b) Civil Liability Act 2002 (NSW); s 11(3)(b) Civil Liability Act 2003 (Qld); s 5C(3)(b) Civil Liability Act 2002 (WA); s 13(3)(b) Civil
Liability Act 2002 (Tas).
53
     T Carver and MK Smith, 'Medical Negligence, Causation and Liability for Non-Disclosure of Risk: A Post Wallace Framework and Critique'
(2014) 37 UNSW LJ 972, 994, citing Neal v Ambulance Service of NSW [2008] NSWCA 346 [42].
54
     Chappel (n 40). Gaudron J accepted that the risk would have been reduced [19]; Kirby J accepts this on the basis of 'intuition and commonsense'
[97]; Hayne J (dissenting) says there is some evidence to suggest it [110] but later says that the defendant's conduct did not affect the chance of
whether there would be pathogens present in her oesophagus and whether they would result in infection and whether that would result in nerve
damage [121]; Gummow J does not discuss it; McHugh J (dissenting) says that the evidence does not show that there would have been a reduction in
risk [39]–[42].
55
     Chappel, ibid [97] (Kirby J).
56
     Among those suggesting the problem is one of factual causation: Heywood (n 4) 455; S Devaney, 'Autonomy Rules OK' (2005) 13 Med L Rev
102, 104; Miola (n 27); S Green, 'Coherence of Medical Negligence Cases: A Game of Doctors and Purses' (2006) 13 Med L Rev 1. Those viewing it
as a problem of legal causation include: T Clark and D Nolan, 'A Critique of Chester v Afshar' (2014) 34 OJLS 659; C Purshouse, 'Causation,
Coincidences and Chester v Afshar' (2017) 33 PN 220; R Stevens, Torts and Rights (OUP 2007) 164.
57
     There is no need to consider the NESS test here because it would effectively collapse into the but-for test since causation is not over-determined,
see G Turton, Evidential Uncertainty in Causation in Negligence (Hart Publishing 2016) 45.
58
     Chappel (n 40) [25]. See also Gummow J [79] 'had Mrs Hart undergone the same surgical procedure in other circumstances, the cumulative risks
which produced her injuries were so unlikely to recur as to border upon the speculative'; Kirby J [91]; Hayne J [118].
59
     Chester (n 2) [8].
60
     ibid [11].
61
     ibid [29]–[32].
62
     ibid [81], see also [61].
63
     Wallace (n 41) [20]. The decision in Wallace is discussed in detail in Section III.D. The point was relatively clear in Chappel but the 'common-
sense' approach to causation which blurs factual and legal causation issues obscured it to a degree. The Civil Liability Act 2002 (NSW) (and its
equivalents in other states), applied in Wallace, draws a clear distinction between issues of factual causation and the scope of liability.
64
     Montgomery (n 1) [105].
65
     Green (n 56) 4.
66
     Chester v Afshar [2002] EWCA Civ 724, [42]. Similarly in Crossman v St George's Healthcare NHS Trust [2016] EWHC 2878 (QB) there was
nothing particular about the claimant that meant the 2–3% risk of radicular injury would materialise during surgery, with the court explaining: 'slight
differences in surgical technique, the choice of instruments, the patient's position on the table, and the extent of the surgical compression' could be
factors ([34]) and continuing to hold: 'The fact that things went wrong this time is no predictor of things going wrong on another occasion; indeed,
because the risks are so low, it almost certainly would not go wrong on a different occasion. [Mr Crossman] was unlucky and, as the risks were so
low, would probably have not been unlucky had the operation been performed as originally planned in three months' time' ([40]).
67
     It required that the oesophagus was perforated during the operation. There were pathogens present in her oesophagus at that time, the pathogens
produced an infection, and the infection damaged the laryngeal nerve: Chappel (n 40) [43] and [91].
68
     Chappel (n 40) [91].
69
     White v Paul Davidson & Taylor (A Firm) [2004] EWCA Civ 1511; Beary v Pall Mall Investments (a Firm) [2005] EWCA Civ 415.
70
     Meiklejohn v St George's Healthcare NHS Trust [2014] EWCA Civ 120.

71
     Crossman (n 66).
72
     Montgomery (n 1) [105].
73
     See eg Chappel (n 40) [96] (Kirby J); Chester (n 2) [92]–[94] (Lord Walker).
74
     Notable exceptions are Clark and Nolan (n 56) and J Stapleton, 'Occam's Razor Reveals an Orthodox Basis for Chester v Afshar' (2006) 122 LQR
426, although Stapleton's approach is not discussed as the author concurs with Clark and Nolan's critique of it.
75
     Clark and Nolan, ibid 664.
76
     HLA Hart and T Honoré, Causation in the Law (2nd edn, OUP 1985) 78.
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77
     ibid 79. Lando, a philosopher, questions whether it is really relevant that the conjunction is 'for some reason significant or important', suggesting
'if the only two people in a supermarket aisle are wearing the same pair of 1980's red Nike Air Ship high-tops, this may be a coincidence, but is not,
presumably, important in any way': T Lando, 'Coincidence and Common Cause' (2017) 51 Noûs 132, 133. He suggests instead that 'the joint
occurrence of the several parts of a coincidence must be cognitively salient to us in some way' (133). It is likely that Hart and Honoré's approach to
this requirement simply reflects the legal focus of their work. In day-to-day activities something need not be significant or important to constitute a
coincidence, but in the legal context it matters that the conjunction is not merely 'cognitively salient' but also leads to a legally relevant outcome.
78
     Hart and Honoré, ibid 165–66.
79
     ibid 168.
80
     ibid 78.
81
     ibid 169.
82
     ibid 169.
83
     43 Atl 240 (Pa 1899).
84
     See eg Stevens (n 56); M Stauch, 'Taking the Consequences' (2000) 63 MLR 261, 264.
85
     D Owens, 'Causes and Coincidences' (1989) 90 Proceed Aristotelian Soc 49, 50.
86
     ibid 50.
87
     ibid 51.
88
     ibid 51.
89
     D Owens, Causes and Coincidences (CUP 1992) 17.
90
     Lando (n 77) 135.
91
     ibid 136.
92
     ibid 143. Owens collapses the distinction between causation and causal explanation in his theory, as Crane explains: 'To get from the claim that
coincidences have no causal explanation to the claim that a cause is an event which ensures that its effects are no coincidence, Owens identifies
causation with causal explanation', T Crane, 'Review: Causes and Coincidences' (1996) 47 Brit J Phil Sci 146, 147 (emphasis in original).
93
     ibid 144 (emphasis in original).
94
     ibid 144.
95
     J O'Sullivan, 'Causation and Non-Disclosure of Medical Risks – Reflections on Chester v Afshar' (2003) 19 PN 370, 380.
96
     ibid 380.
97
     ibid 380. See also Chester (n 2) [93] and [94] (Lord Walker).
98
     Clark and Nolan (n 56) 666 (emphasis in original).
99
     See also text to n 120 below.
100
     [2013] NSWCA 311, (2013) 85 NSWLR 167.
101
     The procedure that was performed carried a slightly higher risk of stroke than the procedure she would have chosen with timely diagnosis, but
this was because the actual procedure was one of a wider range of treatments that had become available in the interim and the risk remained below
1% in both procedures. Since the claimant's condition had not worsened the risk associated with any given procedure remained the same at both dates.
See ibid [31] and [107].
102
     ibid [94]–[96].
103
     Clark and Nolan (n 56) 666.
104
     ibid 672.
105
     ibid 666–67.
106
     ibid 668.
107
     D Nolan, 'Damage in the English Law of Negligence' (2013) 4 JETL 259.
108
     See n 11.
109
     Montgomery (n 1) [89].
110
     [1992] HCA 58, (1992) 175 CLR 479.
111
     Wallace (n 41) [8] citing Chester v Afshar [18].
112
     Montgomery (n 1) [68] citing Chester v Afshar [5].
113
     ibid [108].
114
     ibid [81].
115
     ibid [114].
116
     ibid [115].
117
     Shaw v Kovac [2017] EWCA Civ 1028.
118
     Clark and Nolan (n 56) 664, see also Wallace v Kam (n 41) [25] 'a medical practitioner is not liable to a patient for physical injury that
represents the materialisation of a risk which it is beyond the duty of the medical practitioner to warn'.

119
     As an additional stage of analysis rather than replacing the existing rules of legal causation as the Civil Liability Act 2002 (NSW) effectively
does.
120
     Wallace (n 41) [26] citing Kenny v Good Pty Ltd v MGICA (1992) Ltd [1999] HCA 25, [79].
121
     Montgomery (n 1) [93] (emphasis added).
122
     Chester (n 2) [87] (Lord Hope), [101] (Lord Walker).
123
     Carver and Smith (n 53) 1001–02.
124
     s 5D1 Civil Liability Act 2002 (NSW), replicated in other states, applies drawing a clear distinction between factual causation, established using
the but-for test, and scope of liability.
125
     Wallace (n 41) [32].
126
     Moyes v Lothian Health Board [1990] SLT 444, 447 discussed in Wallace, ibid [33].
127
     Wallace, ibid [34] and [35].
128
     Montgomery (n 1) [94].
129
     R Bagshaw, 'Modernising the Doctor's Duty to Disclose Risks of Treatment' (2016) 132 LQR 182, 186.
130
     Montgomery (n 1) [111] (emphasis added).
131
     Webster v Burton Hospitals NHS Foundation Trust [2017] EWCA Civ 62.
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132
     ibid [20] citing first instance decision of Inglis J.
133
     T Keren-Paz, 'Compensating Injury to Autonomy in English Negligence Law: Inconsistent Recognition' (2018) Med L Rev, <
doi:10.1093/medlaw/fwy009.
134
     Shaw v Kovac [2017] EWCA Civ 1028. For critical analysis, see Keren-Paz, ibid. See also Diamond v Royal Devon and Exeter NHS Foundation
Trust [2017] EWHC 1495 (QB).
135
     See text to n 111.
136
     Montgomery (n 1) [68] (Lord Kerr and Lord Reed).