Nursing Law and Ethics

clinical negligence litigation. It is potentially extremely helpful to claimants in
cases where experts cannot be pressed to agree with the artificial speculations
about biological processes which lawyers love so much [19].

6.4.4 Causation: multiple competing causes

Often in clinical negligence cases there will be a number of candidates for the post
of `cause' of the injury. That was the case inWilsher.The claimant there suffered
from retrolental fibroplasia. It was said that this was a result of the negligent
administration of hyperbaric oxygen. But there were several alternative explana-
tions, and it could not be said that the negligent explanation was probably correct.
Accordingly the claimant failed to establish causation.

6.4.5 The requirement that the loss is legally recoverable

Not everything which a claimant might justifiably complain of is recognised by the
law as `loss or damage' sufficient to ground liability. The most obvious examples
relate to psychiatric harm. If the only harm suffered is psychiatric, the claimant will
have to show, in order to obtain judgment, that a recognisable psychiatric illness
has been suffered. Mere distress and shaking up is not enough [20]. Agood
example wasReillyv.Merseyside RHA1994). The claimants were trapped in a
hospital lift for one hour twenty minutes. They suffered fear and claustrophobia
but no physical injury. They were not entitled to any damages.

6.4.6 The assessment of quantum

General

Quantum' is simply the value of a case. There are a number of possibleheads of
claim' in clinical negligence cases. They are divided up as follows:

. pain, suffering and loss of amenity;
. special damage;
. future loss;
. hybrid heads of claim.

Damages in negligence cases are almost always intended to be simply compen-
satory ± to put the claimant into the position he would have been in had the
defendant not been negligent insofar as money can do that. In rare circumstances
damages can be awarded which are intended to represent the court's disapproval
of the defendant's oppressive or otherwise immoral conduct. These are referred to
as aggravated damages. Agood example of aggravated damages in a clinical
negligence case wasAppletonv.Garrett1995). There, a dentist who was sued in
negligence and trespass for doing unnecessary dental work on patients in order to
enrich himself, was ordered to pay aggravated damages, calculated as 15% of the
compensatory damages for pain, suffering and loss of amenity which he also had
to pay.
The claimant is under a duty to `mitigate' his loss. That means that he has to take

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