Expert Witness Journal Issue 66 April 2026 - Flipbook - Page 10
Is contributory negligence really
low hanging fruit? Why blaming
patients is easy—and often lazy
by Professor Piers Page, trauma & orthopaedic surgeon at Swansea Bay University
Health Board.
Introduction
What adjustments were made?
It is now more than 80 years since the Law Reform
(Contributory Negligence) Act 1945 began to
adjust the balance in favour of the less-than-perfect
claimant, permitting apportionment of damages
where previously any contribution whatsoever
had nulli昀椀ed the possibility of an award. Enacted
to redress the “unholy triad” that had weighed so
heavily against the workers of the 19th century, it
was seen at the time as an enlightenment in the law.
It is easy to discern in clinical notes when a potentially
contributory factor has been contemporaneously
addressed. In smoking, for example, a clear o昀昀er
of smoking cessation advice and support, and
documentation of the risks of failure to stop should
be evident.
The approach cannot stop there, though. It is wellknown just how hard it is to stop smoking and, if we
believe it will contribute to adverse healing, we need
to control the things in our surgical gift. Longer
follow-up, more radiographic surveillance or
frequent wound checks are all examples of surgical
proactivity in response to identi昀椀cation of a risk
factor.
There is a risk now, though, that it is serving the
opposite purpose. I am commonly instructed in
cases where there is a clear strategy of contributory
negligence in the defence, but where little or no
attention is paid to what has been done by the
defendants to mitigate the risk factors on which they
rely.
The same principles can be applied to many
other frequently-cited factors, but with the same
scrutiny due. Was the 昀椀xation strategy suitable
for the “morbidly obese” patient? Had anklebrachial pressure indices been calculated for the
“known vasculopath”? Who was checking in on the
unhoused patient with “known compliance issues”?
Documenting these issues without doing something
to help can easily appear to be either a moral
judgement or getting the excuses in early.
Expert witnesses, solicitors, barristers and, indeed,
many patients are aware of the impact of smoking,
alcohol use and dietary habits on healing, especially
of fractures. These factors often, therefore, feature
in a rebuttal – this patient smokes, so it follows they
were not going to heal. One of the wonderful things
about working in limb reconstruction, though, is
the sheer ability of the human body to overcome so
much disadvantage and nonetheless heal, allowing
our patients to regain function and happiness. This
means that a risk factor isn’t an incontrovertible
determinant of outcome to the patient and a
bulletproof, all-encompassing protection for the
defendant, but rather something that needs to
have been weighed and addressed throughout the
patient’s journey.
When contributory negligence
is legitimate
There are cases where contributory negligence
is pertinent: immediate return to sport against
advice, removal of immobilisation against guidance
or repeated non-attendance for follow-up are all
examples of situations that can contribute to poorer
outcome. Even then, though, any defence needs to
clearly demonstrate the appropriate information
was given, steps were taken to respond to early noncompliance and that duty was otherwise wholly
ful昀椀lled.
This article argues for a stricter clinical standard:
if a risk factor was important, what did you do to
minimise its impact?
EXPERT WITNESS JOURNAL
8
APRIL 2026
