Executive Summary

The judgment in Hayley v Newcold Ltd deals with limits of liability for elective medical interventions years after an accident. The Claimant, injured in 2019, elected to undergo a below-knee amputation in 2024, alleging ongoing pain and dysfunction. The court held that the amputation was not clinically necessary and constituted a novus actus interveniens, breaking the chain of causation. For insurers, this case underscores the importance of causation analysis, surveillance evidence, and proactive litigation strategies to manage risk in high-value claims.

Key Case Facts

In March 2019, Claimant sustained a severe crush injury to his right foot after being struck by a forklift truck. He sustained a significant degloving injury and calcaneal fracture which was treated with flap and graft surgery. He was discharged from physiotherapy in February 2020 as he was reported to be mobile and pain-free.

Liability was admitted by the Defendant but the Claimant’s damages reduced by 20% for contributory negligence.

In March 2024 the Claimant elected to undergo a below-knee amputation, nearly five years post-accident.

The Claimant alleged that the amputation was necessitated by accident-related pain and dysfunction. The Defendant argued it was unnecessary and broke the chain of causation.

The case came before HHJ Walsh sitting in the Leeds Combined Court whose approved judgment was handed down last month. In the judgment of HHJ Walsh, the amputation was not clinically required.

The Claimant’s voluntary decision constituted a novus actus interveniens and as such, the Defendant not liable for post-amputation losses.

Key Legal Takeaways

1. Beyond “But For” – Effective Cause Matters

While the accident was a factual cause of the Claimant’s injury, liability does not extend indefinitely. Courts seek the effective cause not merely a contributing factor. When the evidence before the Court points in different directions, the Court looks at the totality of the evidence in order to form a view.

2. Novus Actus Interveniens – When Claimant Choices Breaks the Chain

A Claimant’s voluntary, unreasonable decision can eclipse the Defendant’s wrongdoing. In this case, the elective amputation—absent compelling clinical necessity—was deemed a supervening event breaking the chain of causation. The Court determined (and the Claimant accepted at trial) the decision to pursue and undergo the amputation was the Claimant’s alone – the idea had not been initially introduced by the Claimant’s medico-legal expert, as the Claimant had initially sought to suggest. This is an important element in the assessment of the novus actus interveniens principle.

3. Foreseeability Is Not Absolute

Although amputation was a foreseeable risk, foreseeability of a justified intervention does not equate to foreseeability of an unjustified one. This distinction is critical for defending claims involving elective procedures. 

4. Treating Team Negligent? – Determination Not Required

The issue of whether the decision of the treating team to proceed with the elective amputation was clinically negligent did not need to be determined – it was sufficient to have found the treating team did not have the “full picture”. While each case will turn on its own facts, this is an important consideration for insurers when assessing their position in relation to elective procedures undertaken by the Claimant.

5. Surveillance and Credibility Are Game-Changers

Covert surveillance showing normal gait and active participation in physically demanding hobbies undermined the Claimant’s narrative of “unbearable pain.” Credibility findings were pivotal in determining causation. The timing and extent of surveillance is important. This case highlights the benefit of having a strong body of evidence, including footage obtained in the weeks/months leading up to the elective procedure when there are concerns the procedure is not reasonably required.

6. Expert Evidence – Scrutiny and Methodology

The Courts expect robust, transparent, consistent reasoning from experts. Discrepancies and failure to engage with key evidence (such as surveillance) can diminish the weight the Court assigns to such evidence. Insurers should ensure experts address all relevant material and maintain consistency. It is also important to ensure the medical expert has carried out a recent examination, as opinions based on historic assessment can lose their potency. 

Practical Lessons for Insurers

• Early Identification of Causation Issues: Where elective procedures arise years post-accident, consider a preliminary issue trial to limit exposure.
• Deploy Surveillance Strategically: Independent evidence of function can decisively challenge subjective pain claims. Service of this evidence prior to the elective procedure is undertaken with a request for it to be provided to the treating team should be considered, where possible.
• Challenge Expert Methodology: Ensure experts engage with all evidence and provide clear, consistent reasoning, supported by the literature.
• Document Foreseeability Arguments: Distinguish between foreseeably necessary treatment and elective interventions driven by claimant preference.
• Prepare for Autonomy Arguments: Courts respect claimant autonomy but will not impose liability for choices unconnected to the defendant’s negligence.

Implications for Future Claims

This Judgment offers cogent reasoning for a stricter approach to causation in cases involving elective medical decisions. Insurers should:

• Treat elective interventions as potential novus actus scenarios and investigate thoroughly.
• Consider early disclosure strategies and surveillance to challenge subjective pain claims.
• Anticipate arguments around claimant autonomy and prepare responses with the assistance of their medical experts. 

Why This Matters

This case highlights the importance of causation analysis and evidential rigour. Insurers should treat elective interventions as red flags for potential novus actus arguments and act early to protect their position.

Elective medical decisions—particularly amputations in pain cases — can significantly inflate claim values across multiple heads of loss. This judgment reinforces that liability is not open-ended. For insurers, robust evidence and proactive litigation strategy are key to managing risk.

This article was co-authored by Tim Large, Partner and Lead Member of the Clyde & Co Chronic Pain SMG and Stephen Sumner, Legal Director and Lead Member of the Clyde & Co Amputation SMG