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25 Cards in this Set
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Objective test of reasonableness (reasonable man) |
D is to be judged by how a reasonable person would have behaved at same time and in same circumstances. any characteristics of D or any characteristics shared among a particular class of D which might affect their capacity to carry out a task to a reasonable standard, are not taken into account when determining whether D has fallen below the standard of care (Glasgow Corporation v Muir [1943]; Nettleship v Weston [1971] (HC QB)) |
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Bolam v Friern Hospital Management Committee [1957] |
The ‘Bolam test’ The plaintiff in Bolam agreed to undergo electro-convulsive therapy (ECT) during which he suffered a fracture to pelvis. The issue was whether doctor was negligent in failing to give a relaxant drug before treatment, or in failing to provide means of restraint during procedure. Evidence was given of practices of various doctors in use of relaxant drugs before ECT treatment. One body of medical opinion favoured use of relaxant drugs, but another body of opinion took the view that they should not be used because of the risk of fractures. According to McNair J: "The test is the standard of ordinary skilled man exercising and professing to have that special skill. A man need not possess highest expert skill; it is well established law that it is sufficient if he exercises ordinary skill of an ordinary competent man exercising that particular art.” |
electro-convulsive therapy (ECT) |
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Phillips v Whiteley [1938] |
Often, problem is one of defining group to which D belongs: In this case, did D, who had pierced C’s ears, have to show care of a reasonable surgeon or of a reasonable jeweller? C asked D to arrange for ears to be pierced. D referred her to a third party jeweller. jeweller appeared to take proper steps to keep wounds disinfected, but an abcess developed. Held: A jeweller could not be expected to take same steps as would be taken by a surgeon, and in this case had taken all reasonable steps to avoid infection. It had not been shown that infection entered ear at the time when it was pierced. |
problem of defining which group a particular defendant belongs to (Ear piercing) |
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Shakoor v Situ [2000] |
In this case there is an interesting analysis of how to treat a practitioner of traditional Chinese medicine working in England. Was he to be compared to a reasonable orthodox doctor, a reasonable traditional doctor practising in China or a reasonable traditional doctor practising in England? Its controversial ruling elaborates on "responsible body of medical professionals" test from Bolam. court of first instance found that there was no way to establish that herbs could be known to contain toxic substances. Yet on balance of probabilities, herbal concoction was the cause of death (liver failure). It was held that Mr Shakoor had an "idiosyncratic" reaction, a rare and unlucky allergic response to herbal mix. Judge considered argument that an herbalist should be held to same standard as a normal NHS doctor, but disagreed. So long, said Livesey QC, as herbalist complies with UK's laws, does not prescribe prohibited or regulated substances under Pharmacy and Poisons Act 1933, Medicines Act 1968 or Abortion Act 1967, so long as herbalist takes steps to keep abreast of pertinent information in "orthodox" medical journals, it is appropriate to hold his standard of care to that of what a reasonable herbalist would do. In this case prescription had not been inappropriate for a reasonable herbalist, and accordingly Mr Situ of Eternal Health Co. was not liable for death of Mr Shakoor. |
practitioner of traditional Chinese medicine working in England |
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Wilsher v Essex Area Health Authority [1988] (CA) |
In this case, CA rejected argument that an inexperienced junior doctor owed a lower duty of care. Bolam applies in the context of a junior doctor. |
inexperienced junior doctor |
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FB v Princess Alexandra Hospital NHS Trust [2017] EWCA Civ 334 |
In this case the approach to medical standard of care in Wilsher v Essex Area Health was endorsed and applied where delay in proper diagnosis and treatment of a child’s condition resulted in brain damage. (child had meningitis but an upper respiratory tract infection was diagnosed by A&E doctor without referral of the baby to paediatrician) According to Lord Justice Jackson: "Whether doctors are performing their normal role or ‘acting up’, they are judged by reference to post which they are fulfilling at material time. health authority or health trust is liable if doctor whom it puts into a particular position does not possess (and therefore does not exercise) requisite degree of skill for task in hand." |
delay in proper diagnosis and treatment of a child’s condition resulted in brain damage (child had meningitis but an upper respiratory tract infection was diagnosed by A&E doctor without referral of baby to paediatrician) |
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Mullin v Richards [1998] 1 All ER 920 |
Children may be liable in negligence and are judged by what might be expected of a reasonable child of D’s age, and courts appear to be indulgent towards high spirits and horseplay. In this case two 15-year-old schoolgirls were ‘fencing’ with plastic rulers when one of rulers snapped and caused a serious eye injury in one of girls. The girls were judged against standard of ordinary 15-year-old and in the circumstances (such games were common at school and were not prohibited) CA found risk of injury was not reasonably foreseeable. |
Two schoolgirls fencing with rulers |
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Bolton v Stone [1951] AC 850 |
In this case C was standing in a quiet road when she was struck by a cricket ball which had been driven from D’ cricket ground. It was rare for balls to be hit out of ground; only on about six occasions in 28 years had balls been hit out and no injury had resulted on these occasions. Even though risk of such an accident was foreseeable the chance that it would actually occur was very small. HL held D were not liable because in circumstances it was reasonable to ignore such a small risk. |
Cricket ball had been driven from the cricket ground |
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Miller v Jackson [1977] QB 966 |
in this case cricket balls were hit out of their ground eight or nine times a season and, on numerous occasions, had damaged C’s property. a majority in CA held that risk of harm was so great that D were liable. |
cricket balls were hit out of their ground eight or nine times a season |
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Paris v Stepney BC [1951] AC 367 |
How serious was injury likely to be if it did occur? This case illustrates that obligations of a potential D may increase where risk to a C is of greater damage than normal. Here, D knew that C was blind in one eye. He was working in conditions which involved some risk of eye injury but likelihood of this injury was not sufficient to call upon D to provide goggles to a normal two-eyed workman. C was rendered totally blind when a chip of metal entered his good eye. HL ruled that duty of employers was owed to each particular employee and they were negligent in failing to provide goggles to C. risk to a two-eyed workman was loss of one eye but in this case C risked much greater injury of total blindness. => Even risk of losing one eye is too big considering (inexpensive) cost to employer of providing goggles! This would not be the case today to not provide goggles for two-eyed workmen as this is a health and safety requirement. |
C was rendered totally blind when a chip of metal entered his good eye |
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Latimer v AEC [1953] 2 All ER 499 |
How difficult and/or expensive would it be to eliminate risk? Where a risk is slight, failure to take a precaution which is prohibitively expensive may not be negligent. In this case, after a heavy rainfall D’s factory was flooded and water mixed with an oily liquid which usually collected in channels in floor. When mixture drained away it left floor very slippery. Sawdust was spread over most, but not all, of surface. A workman was injured when he slipped on untreated part of floor. trial judge had found D liable on ground that they had not closed down factory. HL held that D were not liable; they had acted as a reasonable employer would have acted. The danger was not such as to impose on employer an obligation to close down factory. |
after a heavy rainfall D’s factory was flooded and water mixed with an oily liquid which usually collected in channels in floor |
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Watt v Hertfordshire CC [1954] 2 All ER 368 |
The focus of question here is on how important or urgent D’s action was. risk has to be balanced against end to be achieved and, if sufficiently important, justifies assumption of abnormal risk. In this case a fireman was called out to an emergency where a woman was trapped under a lorry. A heavy lifting jack was urgently required but, since a vehicle designed to carry this was not available, it was loaded onto a lorry which was not equipped to secure it. On way to scene of accident the lorry had to brake suddenly and fireman was injured when jack slipped. In these circumstances CA found that fire authorities had not been negligent. The risk had to be balanced against end to be achieved and saving of life or limb justifies taking considerable risk. Lord Denning took view that if accident had happened in a commercial venture without any emergency C would have succeeded, but ‘the commercial end to make profit is very different from the human end to save life or limb.’ |
a fireman was called out to an emergency where a woman was trapped under a lorry |
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Bolitho v City and Hackney Health Authority [1998] AC 232 |
=> Bolam Test applied This test allows medical profession to some extent to determine for itself circumstances in which it can be said one of its members has fallen below appropriate standard of care, but courts reserve right to strike down a medical practice as unreasonable. In this case Bolam test was applied to determine what a doctor should have done had she attended a two-year-old boy. medical experts had disagreed as to whether she ought to have intubated the child. HL emphasised that ultimately it was for court, and not for medical opinion, to decide standard of care required in each case: court had to be satisfied that opinion had a logical basis, which would involve weighing of risks against benefits, in order to reach a defensible conclusion. Patrick had two respiratory episodes where he went pale and his breathing became "noisy". Dr Horn was notified but did not attend to Patrick. However, following each episode Patrick seemed well. Half an hour after second episode, Patrick suffered both respiratory arrest and cardiac arrest. Although he was revived, he suffered severe brain damage and later died. HL held that "a defendant cannot escape liability by saying that the damage would have occurred in any event because he would have committed some other breach of duty thereafter". So there was a need to decide if hypothetical decision not to intubate Patrick would have been a breach of duty. HL held doctor not liable. => HL clarified Bolam test to include a proviso that practice accepted as proper by a responsible body of professionals must be based on logical and defensible grounds. In this case, refusing to intubate child was not illogical, and so there was no breach. => By virtue of Bolitho, peer professional opinion which purportedly represents evidence of responsible medical practice can be departed from, if that opinion is determined by court to be "not capable of withstanding logical analysis", or is otherwise "unreasonable" or "irresponsible". However, only in "a rare case" would the courts find that body of opinion is unreasonable. => Bolitho turned Bolam on its axis, in that court, and not medical profession, became final arbiter of medical breach. |
Toddler getting respiratory and cardiac arrest due to Croups disease and doctor failing to attend |
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Whitehouse v Jordan [1981] 1 WLR 246 |
A further application of Bolam test can be seen in this case where it was alleged that D had pulled too long and too hard in attempting a forceps delivery before eventually performing a Caesarean section. trial judge held doctor liable for severe brain damage which C suffered but, on appeal, it was found that evidence did not establish that doctor had departed from accepted practice and he was therefore not negligent. HL emphatically restated Bolam test and rejected argument that there was a difference between an error of judgment and negligence. In CA Lord Denning had argued: ‘When I give a judgment and it is afterwards reversed by HL, is it to be said that I was negligent?’ => this case was decided before Bolitho though |
Forceps delivery and c-section |
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Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 |
Bolam test applies to making a diagnosis and where there is conflicting medical opinion a doctor is not negligent merely because there is a body of opinion that takes a contrary view. In this case a consultant physician and a surgeon were uncertain whether C was suffering from tuberculosis or from Hodgkin’s disease. Hodgkin’s disease can be fatal unless treated early so they carried out an operation before obtaining test results which would have determined her illness. The operation carries an inherent risk of damage to vocal cords and this risk materialised in C. She claimed that consultants were negligent in carrying out operation before test results were available. HL held D had not been negligent. Although there was a body of competent opinion which said that consultants’ decision was wrong there was an equally competent body which supported their approach. Lord Scarman stated justification for Bolam test in following terms: “… a judge’s ‘preference’ for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence” => this case was decided before Bolitho though |
Consultant physician and a surgeon were uncertain whether C was suffering from tuberculosis or from Hodgkin’s disease. |
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What is negligence? |
Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. (Blyth v Birmingham Waterworks (1856)) |
Definition |
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What constitutes breach of duty? |
To avoid breach (or ‘negligence’) the defendant must conform to the standard of care expected of a reasonable person. (Blyth v Birmingham Waterworks (1856)) |
Definition |
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two stages to the breach of duty enquiry |
1. We must determine the standard against which the defendant’s conduct in an action for negligence is judged – this is a question of law. 2. We must weigh the factors that go to determine whether the defendant has fallen below the standard of care – this is largely a question of fact. |
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Standard of care |
D is to be judged by how a reasonable person would have behaved at same time and in same circumstances. D must not be judged with benefit of hindsight (making use of knowledge not available at time of alleged tort) and allowance must be made for any special circumstances affecting D (e.g. having to act under pressure or with limited time for full consideration) (Glasgow Corporation v Muir [1943] (HL)) |
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Authority for but for test of causation |
Barnet v Chelsea and Kensington Hospital Authority (1969) |
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Wilsher v Essex Area Health Authority [1988] (HL) |
The defendant hospital, initially acting through an inexperienced junior doctor, negligently administered excessive oxygen during the post-natal care of a premature child who subsequently became blind. Excessive oxygen was, according to the medical evidence, one of five possible factors that could have led to blindness. On the "balance of probabilities" test, the hospital would not be liable, since it was more likely that one of the alternate risks had caused the injury. CA applied the "material increase of risk" test, first espoused in McGhee v National Coal Board. The Court found that since the hospital breached its duty and thus increased the risk of harm, and that the plaintiff's injury fell within the ambit of that risk, the hospital was liable despite the fact the plaintiff had not proved the hospital's negligence had caused his injury. HL found that it was impossible to say that the defendant's negligence had caused, or materially contributed, to the injury and the claim was dismissed. It also stated that McGhee articulated no new rule of law, but was rather based upon a robust inference of fact (this understanding of McGhee was rejected in Fairchild v Glenhaven Funeral Services Ltd).In a minority view, Mustill LJ. argued that if it is established that conduct of a certain kind materially adds to the risk of injury, if the defendant engages in such conduct in breach of a common law duty, and if the injury is the kind to which the conduct related, then the defendant is taken to have caused the injury even though the existence and extent of the contribution made by the breach cannot be ascertained. |
Premature baby given excessive oxygen, possibly resulting in blindness |
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Prendergast v Sam and Dee |
In Prendergast vSam and Dee, doctor scribbled prescription that was misread by chemist - both = negligent). |
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Sidaway v Board of Governors of the Bethlem Royal Hospital (1985) (HL) => overruled in Montgomery |
The claimant suffered from pain in her neck, right shoulder, and arms. Her neurosurgeon took her consent for cervical cord decompression, but did not include in his explanation the fact that in less than 1% of the cases, the said decompression caused paraplegia. She developed paraplegia after the spinal operation. Rejecting her claim for damages, the court held that consent did not require an elaborate explanation of remote side effects. Bolam test applies to the disclosure of information by doctors to patients about risks of proposed procedures In dissent: Lord Scarman said that the Bolam test should not apply to the issue of informed consent and that a doctor should have a duty to tell the patient of the inherent and material risk of the treatment proposed. |
Lack of information on risks of back operation |
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Chester v Afshar [2004] (HL) |
HL decided that a doctor's failure to fully inform a patient of all surgery risks vitiates the need to show that harm would have been caused by the failure to inform. Miss Chester was referred to Dr Afshar, a neurological expert, about some lower back pain. He told her that surgery was a solution, but did not inform her of the 1-2% risk of these operations going wrong. She suffered a complication, called cauda equina syndrome. The judge found that there was a causal connection between the failure to inform and Miss Chester's injuries - if she had been informed, she would have sought further advice or alternatives. CA upheld the conclusion of the judge. HL held that the "but for" test was satisfied, so far as Miss Chester was concerned. Although the risk of the operation going wrong would not at all have been changed had Miss Chester been warned, it was the duty of the doctor to warn her. It is a basic principle of good medical practice that adults should consent on a fully informed basis to surgery, aware of all risks. Dr Afshar had therefore violated her right to choose. If damages were not awarded, that duty would be a hollow one. |
Lack of information on risks of back operation |
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Montgomery v Lanarkshire Health Board (2015) => Overruled Sidaway |
Diabetic mother was not informed of risk of baby getting stuck in birth canal when giving birth naturally. Baby was disabled with cerebral palsy due to asphyxiation in the birth canal. SC departed and overruled the earlier HL decision in Sidaway v Board of Governors of the Bethlem Royal Hospital, in reconsidering the duty of care of a doctor towards a patient on medical treatment. The case changed the Bolam test to a greater test in medical negligence by introducing the general duty to the risk, unless it can result in harm to the mother. SC departed from Sidaway because patients are different now than they were 30 years ago. In this information age patients are more informed in general and want to know all the risks, and would then make a decision based on the information provided to them and live with the consequences of their decision. |
Lack of information on risks of diabetic mother giving birth naturally: Shoulder dystocia |
