Failures to attend and contributory negligence

18/03/2026

By Jon Wong

Contributory negligence arises where a negligent act or omission of the claimant contributes to the accident or injury for which the defendant is liable. Whilst routinely pursued in road traffic accidents and workplace accidents, allegations of contributory negligence are rarely seen in the arena of clinical negligence.

One would think given patient cancellations and non attendances are fairly common¹, a proportion of those bound to be without good reason, that contributory negligence on such basis would be a feature of clinical negligence claims.

Act or Omission

Clinical negligence claims often do not involve any “accident”, and even when they do it is difficult to conceive of a claimant playing any significant part – medical accidents commonly referred to as iatrogenic (Iatrós = doctor + genesis = origin) events.

Dalton² is frequently cited as authority for the proposition that circumstances in which a finding of contributory negligence can properly be made in a clinical negligence claim will be rare. In that case, contributory negligence was considered for completeness even though the claim ultimately failed on its breach of duty allegation—namely, the contention that there had been a failure to perform a biopsy—and on its causation allegation that a biopsy would have led to earlier detection of the cancer. The court stated that the circumstances did not give rise to a finding of contributory negligence because the claimant had been advised to return if she noticed anything “new or different,” and she did in fact return to her GP promptly when concerns arose. On those facts, it appeared that there was no omission on the claimant’s part, let alone a blameworthy one.

It seems hardly enough to criticise the claimant’s lack of care for their own health without pinpointing specific advice they ignored or a specific appointment they failed to attend.

Causation

One must not forget that the very term “contributory” denotes concurrent causes of injury (the defendant’s and the claimant’s negligence). The most obvious scenario where contributory negligence is of no application is where the claimant’s act or omission makes no difference to the injury at all.³

Contributory negligence would also not be applicable where the claimant’s act or omission is or comes after an intervening act which breaks the chain of causation⁴. The result would be attribution of the proportion of injury caused by the defendant’s negligence, rather than apportionment of the eventual injury by way of contributory negligence.

A claimant’s act or omission which at first blush might seem to fit a picture of contributory negligence, on closer inspection might not be contributory.

Blame

A claimant’s failure to attend an appointment could, and has been found to, be a blameworthy omission. In Pidgeon⁵ contributory negligence was assessed at two thirds, whereby the claimant had been spoken to on no less than seven occasions about the need to have a smear test, and had received four letters from the defendants’ cervical cancer screening programme about the need to have a smear test, had not undergone the test because she found it painful and embarrassing although she was aware that she could develop cervical cancer. In Sims⁶, an academic finding of contributory negligence of 25% was made for the claimant not attending when his GP advised to have his blood pressure checked in 2007, and the claimant knew of high blood pressure and the risk of stroke in 2002.

Given the claimants’ appreciation of risk, the omissions in Pidgeon and Sims could in some way be akin to the intervening act of the claimant in Sabri-Tabrizi⁷ – whether such omissions should be regarded as intervening acts is an argument for a different day and presently courts are reluctant to adopt such position. Pidgeon and Sims support the contention that a claimant failing to attend an appointment could be a blameworthy omission amounting to contributory negligence.

The recent case of Ahmed⁸ involved allegations of missed opportunities by the deceased’s GP to intervene and treat cancer. Interestingly, the finding on contributory negligence was not academic (it was a trial of preliminary issues which did not include causation). Having found that the deceased was not told about the x-ray, and that he would have got one done if he had been told that it had been requested, the judge went on to consider whether there was contributory negligence for: faling to attend a review appointment two weeks following an appointment where exacerbation of asthma was diagnosed; and failing to attend a further asthma review.

The case was distinguished from Pidgeon and Sims. Turning on the understanding of the significance of failing to attend, contributory negligence was not made out:

39. The burden of establishing contributory negligence is on the defendant. Both of the cases relied on by Ms Webb contain an element that, on my findings, this case lacks, namely evidence that each claimant understood the significance of a failure to follow the advice of the general practitioner. In this case the defendant cannot show that Mr Ahmed understood the significance of his failure to attend. Without that understanding it would not, I find, be unreasonable for a person in Mr Ahmed’s position, particularly if he was feeling better, not to attend the relevant appointments. In an ideal world he would have informed the surgery and cancelled the 27 February appointment but that is a different matter.

The nature of the appointments in Ahmed (review of asthma) is an important detail. Evidently not all failed attendances give rise to circumstances for a finding of contributory negligence. The requisite understanding of the significance of a failure to attend could arise more commonly in appointments to investigate specific risks (Pidgeon; Sims), and especially where a similar appointment previously revealed those risks (Sims).

1. In 2024/25, patient cancellations and did not attends were 7.1%
   and 5.6% of outpatient appointments respectively (https://digital.
   nhs.uk/data-and-information/publications/statistical/hospital
   outpatient-activity/2024-25/summary-reports#summary-of
   outpatient-appointments-and-attendances-2014-15-2024-25) ↩︎
2. Dalton v Southend University Hospital NHS Foundation Trust [2019]EWHC 832 (QB) ↩︎
3. Chapman v Mid and South Essex NHS Foundation Trust [2023]EWHC 1290 (KB) at [201], for example ↩︎
4. Sabri-Tabrizi v Lothian Health Board 1998 S.C. 373, for example:
   following a failed sterilisation, S knew that there was a risk of her
   becoming pregnant, the decision to have sexual intercourse
   constituted an intervening act ↩︎
5. Pidgeon v Doncaster Health Authority [2002] Lloyd’s Rep. Med. 130 ↩︎
6. Sims v MacLennan [2015] EWHC 2739 (QB) ↩︎
7. Sabri-Tabrizi (n 4) ↩︎
8. Ahmed v Daish [2025] EWHC 3056 (KB) ↩︎