SAMPLE NOTES FROM OUR GDL CASE BOOK:
Tort: Professional and Clinical Negligence
Criminal Law: Joint Enterprise and Accomplice Liability
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TORT LAW
PROFESSIONAL AND CLINICAL NEGLIGENCE KEY CASES CASE Barnett v Chelsea and Kensington Hospital Management Committee [1969]
Bolam v Friern Hospital Management Committee [1957]
FACTS
PRINCIPLE
Barnett, who had been vomiting, was turned away by a doctor at a hospital's casualty department. Barnett was told to see his own doctor. Barnett later died of arsenic poisoning. He would have died even if he had been seen by the hospital doctor.
1. The hospital authority owed a duty of care from the moment of accepting responsibility – by turning Barnett away, the hospital's doctor was acting negligently.
A doctor conducting electroconvulsive therapy did not give the patient any muscle relaxant. The patient suffered a fracture as a result. The patient unsuccessfully alleged that it was negligent not to give him the relaxant, restrain him and warn him of the risks. The hospital relied on expert witnesses who opposed relaxants and restraints.
2. Applied the “but for” test to clinical negligence: Barnett would have died even if he had been seen. Established the Bolam test for clinical negligence: limb 1 considers the standard of a “reasonable man exercising and professing to have that special skill”; limb 2 explains that a doctor will not be negligent if “he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art”. COMPARE with Bolitho – in that case, the court held that professional opinion must have a logical basis. COMPARE with De Freitas
Bolitho v City and Hackney Health Authority [1997]
A young child was seriously ill. The senior doctor was unable to attend. The child then suffered a cardiac arrest. The doctor argued that, even if she had attended, she would not have performed the intubation (that the claimant’s experts said was the correct action) – and she was supported in this by medical experts.
104
The court must be satisfied that a professional opinion is not illogical (i.e. that a medical expert could point to a logical basis for her opinion). It would be rare for such a medical opinion not to be accepted. The defendant was not negligent here. COMPARE with Bolam – a doctor cannot escape liability simply by showing that another doctor would have done the same, regardless of whether it was illogical to do so.
TORT LAW
CASE Cassidy v Ministry of Health [1929]
Chester v Afshar [2003]
Montgomery v Lanarkshire Health Board [2015]
FACTS
PRINCIPLE
Cassidy had an operation on his hand which, through negligence, resulted in stiff fingers.
Medical professionals and authorities owe a duty of care to their patients – it is not necessary to establish precisely which employee of a hospital authority was negligent.
Chester was asked about the risks implicit in a surgery to correct back pain. The neurosurgeon omitted to mention the small risk of a certain complication. The neurosurgeon did not operate negligently, but the complication developed as a result. The patient would have gone ahead with the operation even if she had been warned but the court did not apply the “but for” test.
A rare, but severe, complication during the birth led to Mrs Montgomery’s child having severe disabilities. Had she known of the risk, she would have requested a less risky caesarean section.
1. When asked, a doctor is under an obligation to discuss any risk, no matter how small. 2. The neurosurgeon's failure to warn of the complication did not increase the risk, so conventional causation principles could not be satisfied. Causation was satisfied on policy grounds – unless the failure to warn was regarded as part of the chain of causation, the duty to warn would be hollow. This case is problematic. COMPARE with Montgomery and Duce. 1. The court overruled Sidaway on the size of risks that should be disclosed. A doctor is “under a duty to … ensure the patient is aware of any material risks”, where materiality is determined by whether a reasonable person in the patient's position would be likely to attach significance to the risk. Moving away from Bolam, it does not matter if a body of medical opinion would support not disclosing a risk. 2. The Chester approach on causation was not considered. OVERRULED Sidaway COMPARE with Bolam
R v Cambridge HA, ex parte B [1995]
The health authority stopped providing an expensive experimental treatment for a child dying of a rare leukaemia.
105
The duty on health authorities is not absolute; they are not obliged to provide every possible treatment no matter the cost (although in this case they had not given due weight to the family's views).
TORT LAW
CASE
FACTS
PRINCIPLE
R v Jordan [1956]
The defendant stabbed the victim who died in hospital eight days later of pneumonia. The pneumonia was caused by negligent treatment (the administration of a drug continued after it was discovered he was intolerant to it, and he was given abnormal amounts of intravenous fluid).
A medical act must be “palpably wrong” to break the chain of causation, as it was here. The victim's death was caused by the medical negligence, not the criminal act.
Roe v Minister of Health [1954]
Microscopic cracks in vials in which anaesthetic was stored allowed contamination. It was used in minor surgery and caused paraplegia of the claimant.
It is not negligent to fail to take into account risks which were unforeseeable at the time (the “state of the art” defence). The anaesthetist was not negligent in relying on a visual inspection for cracks.
Solicitors received instructions from a client to amend a will after a family quarrel, but the solicitors did nothing and the testator then died. The solicitors were found to be negligent to the would-be beneficiary.
A professional can be held liable for negligence, where they assume a duty to the claimant, even if there is no contract. The solicitor's duty here extended to the intended beneficiary as it was reasonably foreseeable by the solicitor that his negligence might deprive that beneficiary.
A baby was born with brain damage following a complicated birth. The damage was caused by the use by the doctor of forceps to assist in the delivery.
An error of judgement made with reasonable care and skill is not automatically a breach of duty.
White v Jones [1995]
Whitehouse v Jordan [1981]
Wilsher v Essex Area Health Authority [1988]
A junior doctor gave a prematurelyborn baby the wrong amount of oxygen. The baby developed blindness, which could have been caused by a number of different factors. The medical evidence on whether it was the excess oxygen was conflicting.
106
1. A health authority has a duty to provide staff of a sufficient skill level. 2. There is no lower standard for a trainee doctor – all doctors are held to the same standard. 3. The “but for” test could not be satisfied as there were multiple possible causes. The onus of proof was on the claimant.
TORT LAW
ADDITIONAL CASES CASE
Bailey v Ministry of Defence [2008]
FACTS
PRINCIPLE
A woman with gallstones received negligent treatment following an operation in a hospital managed by the Ministry of Defence. She suffered brain damage as a result of the deterioration of her condition.
The courts are willing, in exceptional circumstances, to utilise a “material contribution” approach to causation. It was sufficient for the patient to establish that the negligent post-op care had made a material (i.e. more than negligible) contribution to the condition that caused the subsequent brain damage.
[1993]
A woman delivered twins at a hospital site without adequate resources to deal with the complications. A suitably qualified practitioner could not be called over to assist in time.
Crawford v Board of Governors of Charing Cross Hospital
A complication from a blood transfusion during surgery had been written about in The Lancet six months before the surgery.
Bull v Devon Area Health Authority
1. Hospitals and Health Authorities owe a duty of care to their patients. 2. Health Authorities may be liable for an inadequate system which puts a patient under the care of an inappropriate staff member.
It is not negligent for a professional to be unaware of every single new development in their field.
[1953]
De Freitas v O’Brien and Connolly [1995]
A spinal surgery resulted in complications. A negligence claim was brought. At issue was the size of the body of medical opinion required for the second limb of the Bolam test.
A body of opinion for the Bolam test does not need to be “substantial” or a majority (here, 11 professionals in agreement out of a body of over 1,000 was sufficient). APPLIED Bolam COMPARE with Bolitho
Duce v Worcetershire Acute Hospitals NHS Trust [2019]
A woman who underwent a total hysterectomy was not advised by her doctor that there was a very small risk of her developing chronic postsurgical pain (CPSP). She had been advised of the general risk of pain.
107
The defendant surgeon was able to show that a reasonable body of surgeons would not have warned of the risk. Montgomery was applied. The test was two stage, the first was to look at what risks were known and the second to look at a body of opinion to see if a warning should have been given. It was held that the warning was not required.
TORT LAW
CASE
FvR [1983]
Goodwill v British Pregnancy Advisory Service
FACTS
PRINCIPLE
A woman was not advised of the very small risk of a sterilisation process failing. She later became pregnant and sued her gynaecologist for negligence.
Suggested, as in Bolitho, that unreasonable practices will not meet the Bolam standard.
BPAS did not advise of the risks of a vasectomy reversing. A man subsequently fathered a child. The child’s mother tried to claim.
Doctors do not owe a duty to third parties. There must be a proximity of relationship between the professional and the person advised.
A man with head injuries was discharged from hospital. His condition did not improve. His GP came to see him but failed to appreciate how serious the condition might become. The GP did not refer him back to hospital. The man later deteriorated further.
The court applied the “risk analysis” approach in Bolitho and held, contrary to the evidence presented by the medical experts, that it was not a reasonable exercise of the GP's discretion to leave the patient at home in the circumstances.
An invasive biopsy was performed to determine a patient’s illness. The doctors did not want to wait for less invasive tests as one potential illness needed to be treated in its very early stages.
There is room for differences of opinion in the medical profession. The court will generally not arbitrate between differing bodies of competent medical opinions.
APPLIED Bolitho
[1996]
Marriot v West Midlands RHA [1998]
Maynard v West Midlands RHA [1985]
Newman v UK Medical Research Council (“CreutzfeldtJakob Disease Litigation”)
A link between human growth hormone and the Creutzfeldt-Jakob disease (CJD) had been known about for nearly 20 years but children were given the growth hormone, and some went on to develop CJD.
APPLIED Bolitho
APPLIED Whitehouse v Jordan
Established risks should be acknowledged and the consequent risk of harm should be appreciated. The Council should have ceased treatments while they investigated.
[1997]
O'Hare v Coutts & Co [2016]
At issue was whether a bank had provided the claimants with sufficient information regarding a series of investments so that they were aware of the material risks.
108
The court favoured the Montgomery standard over the Bolam test in relation to advice on investments. APPLIED Montgomery
TORT LAW
CASE Pearce v United Bristol Healthcare NHS Trust
FACTS
PRINCIPLE
A baby was stillborn after a doctor refused to medically induce delivery or perform a Caesarean section.
In deciding which risks to disclose to a patient, the doctor should consider the emotional state of the patient and their ability to comprehend what is being said to them.
A pharmacist dispensed incorrect drugs due to not double-checking the doctor's near-illegible handwriting on the prescription.
The duty of care includes writing and checking prescriptions competently. Liability was apportioned 25% to the doctor and 75% to the pharmacist.
[1996] Prendergast v Sam & Dee Ltd [1989] Re F (Mental Patient: Sterilisation) a.k.a. F v West Berkshire Health Authority
A mentally handicapped 36-year-old woman in a mental hospital began a relationship with another patient. Doctors wanted to sterilise her as she had no way to deal with pregnancy or capacity to understand the alternative options.
[1990]
Ross v Caunters [1980]
A court found solicitors owed a duty of care to potential beneficiaries who would have benefitted but for the incorrect execution of a will.
1. Doctors may operate on adults unable to consent to or refuse treatment (due to an emergency or mental disability) if doing so is in the patient's best interest. 2. The court should be consulted where sterilisation is considered to be in the patient's best interest due to its special characteristics and effects. Professionals owe a duty of care to their clients when acting for them but may also owe a duty of care to third parties, such as the beneficiaries under a will. SEE White v Jones
Sidaway v Board of Governors of Bethlem Royal Hospital [1985]
Smith v Leech Brain & Co [1962]
A surgeon did not advise his patient about a highly unlikely complication of surgery. The complication occurred, leaving her disabled. She claimed that it was negligent to have failed to disclose the risk.
Lord Bridge considered a 10 percent risk (or higher) being the boundary above which a risk must be discussed with a patient in advance.
The claimant was burned as a result of his employer’s negligent care of working conditions. The burn caused existing pre-cancerous cells to develop into cancer, which killed the claimant.
The defendant takes the claimant as he finds him and is responsible for the damage he causes – the “thin skull rule”. As the defendants could have foreseen injury by burning, they were liable for the resulting death.
109
OVERRULED by Montgomery
TORT LAW
CASE
FACTS
PRINCIPLE
Taaffe v East of England Ambulance Service NHS Trust
Paramedics examined a woman suffering from chest pains, but did not advise her to go to hospital, as she had a pre-existing appointment with her GP the next day. She died of a cardiac arrest five days later.
An application of the Bolam test as modified by Bolitho: expert evidence can be overturned if it is illogical. Although other paramedics might have done the same, that still would not have made it reasonable. The paramedics were negligent.
Webb, who already suffered from the effects of polio, fell while at work and was badly hurt. She had an amputation above the knee. The doctor had negligently failed to inform her of the alternatives, for which she would have opted in preference to amputation.
The doctor's intervening clinical negligence was not enough to break the chain of legal causation; the employer remained liable in negligence because it had failed to maintain the land where she fell.
[2012] Webb v Barclays Bank plc; Webb v Portsmouth Hospitals NHS Trust [2001]
110
CRIMINAL LAW
JOINT ENTERPRISE KEY CASES CASE
R v Anderson and Morris [1966]
R v English [1997]
R v Jogee [2016]
FACTS
PRINCIPLE
Morris and the victim were fighting. Anderson came and joined in. Anderson stabbed the victim. In this case the killing was “an overwhelming supervening event”. The other protagonists were not guilty of the murder.
For joint enterprise, each person is liable for the actions in pursuit of the enterprise, even if they have unusual consequences, provided that what happens is not outside all contemplation.
English and another man used wooden posts to attack a police officer. The other man then stabbed the policeman to death. It was argued that English did not know the other man had a knife.
Jogee's co-defendant killed a man with a knife. The judge directed the jury that Jogee was guilty of murder as an accessory if he had participated in the attack on the victim and realised that his co-defendant might stab the victim with intent to cause him really serious harm. Both were convicted. Jogee appealed the trial judge's directions to the jury.
COMPARE with English and Jogee Where the act committed is fundamentally different from the original act that was foreseen and envisaged, there should be no liability for joint enterprise. COMPARE with Anderson and Morris and Jogee A secondary party needs to intend the offence is carried out before they can be convicted of it – it is not sufficient that they simply foresaw that the offence might occur: “The error [in the old case law] was to equate foresight with intent to assist, as a matter of law; the correct approach is to treat it as evidence of intent.” The judge's direction was therefore incorrect and Jogee's conviction was quashed. COMPARE with English Anderson and Morris
R v Mendez and Thompson [2010]
A group of boys attacked another after a disagreement at a party. One of them stabbed him, and he died.
181
and
If the act is in “a different league” from that which the defendant foresaw, they will not be liable for joint enterprise. COMPARE with English Anderson and Morris
and
CRIMINAL LAW
CASE
R v Powell and Daniels [1999]
FACTS
PRINCIPLE
Two men went with a third to a drug dealer to buy drugs. One shot the drug dealer as soon as he opened the door. The other two were held jointly liable for his murder. They knew that he was carrying a gun, and so could foresee he could cause death or serious injury.
All that is necessary is foresight that the other crime may be committed: “Where two parties embark upon a joint enterprise to commit a crime and one foresees that the other may carry out an act constituting a crime in the course of the enterprise, the former is also liable for the crime committed by the latter.”
ADDITIONAL CASES CASE
R v Becerra and Cooper [1975]
R v Gilmour [2000]
FACTS
PRINCIPLE
Becerra gave Cooper a knife to use in a burglary. When they were interrupted during the burglary, Becerra said, “Let’s go” and tried to run away, but Cooper stabbed the victim.
The closer an attempted withdrawal is prior to commission of the offence, the less likely it is to be effective as a withdrawal from the joint enterprise.
A fire bombing resulted in the deaths of three people. The defendant had not foreseen this infliction of GBH.
Where an accomplice has contemplated the consequences, he will be liable for the extent to which he acted with intention (here manslaughter, not murder). COMPARE with Jogee
R v Grundy [1977]
R v Rook [1993]
R v Whitefield [1984]
The defendant helped plan a burglary, but withdrew two weeks before it took place, during which time he repeatedly tried to prevent it happening. The defendant helped plan a murder but did not participate on the day. He was convicted of joint enterprise murder.
The defendant agreed to burgle a flat, but told the other party that he was withdrawing and took no part in the event. The burglary took place. 182
An example withdrawal.
of
an
effective
COMPARE with Rook
Withdrawal must be unequivocal and before the offence is committed. Just not being around was not enough. COMPARE Whitefield
with
Grundy
and
Where the defendant has effectively withdrawn from his part in the enterprise, he will not be liable. COMPARE with Grundy and Rook
CRIMINAL LAW
ACCOMPLICE LIABILITY KEY CASES CASE
AG’s Ref (No. 1 of 1975) [1975]
Callow v Tillstone [1900]
National Coal Board v Gamble [1959]
R v Clarkson [1971]
R v Russell [1987]
FACTS
PRINCIPLE
The defendant spiked the drink of another, knowing that he was going to drive. The other was later convicted of drink-driving. The defendant could be convicted under s.36 CJA.
1. “Aid, abet, counsel or procure” are given their ordinary English meanings. 2. Example of “procurement” – meaning to “produce by endeavour” here.
An old case. A butcher asked a vet to check whether meat was fit for consumption. The vet negligently and incorrectly certified that it was.
An offence of strict liability does not require any accomplice to it to have MR.
A haulier took an overweight lorry of coal onto the road. He was collecting the shipment to transport it to a power plant run by the coal board, who were charged with aiding and abetting.
Established the MR for aiding and abetting: intention to commit the act that assisted the primary defendant and knowledge that the perpetrator is committing the act.
The defendant was present as a woman was raped but did not participate or encourage in any way. The defendant was not guilty.
The defendant stood by while his wife drowned his children. He was guilty of abetting manslaughter.
183
“Aiding” would include (as some others at the scene did) holding someone down but would not include simply being present. COMPARE with Du Lambourne and Russell
Cross
v
The defendant had a duty to act; his failure to intervene made him liable. COMPARE with Clarkson and Du Cross v Lambourne
CRIMINAL LAW
ADDITIONAL CASES CASE
DPP for NI v Maxwell [1978]
Du Cross v Lambourne [1907]
Johnson v Youden [1950]
R v Bainbridge [1960]
R v Bryce [2004]
R v Gianetto [1997]
R v Luffman [2008]
FACTS
PRINCIPLE
A man thought to be a member of a paramilitary group in Northern Ireland knew that some violent attack was planned but did not have exact details. He guided the perpetrators to a pub which was then bombed.
“Aiding” includes guiding the lead perpetrators to the scene, even without concrete knowledge of what they will do there.
The defendant was in his car while it was speeding. It was not clear who was driving but in any event the defendant was guilty. The defendant solicitor was charged with helping a builder sell a house at a price in breach of a statutory regulation. The solicitor was not party to the events, which included an earlier and undeclared payment by the purchaser. He could not have the mens rea to commit the offence. The defendant purchased equipment which was used to break into a bank. He was aware that it might be used for some illegal purpose but did not know the details.
The defendant had a duty to act, so his failure to intervene made him liable. COMPARE with Clarkson and Russell
The defendant must merely foresee the “essential matters” constituting the offence.
1. Example of “aiding”. Supplying with tools, knowing that they were to be used for some illegal purpose was sufficient. 2. The defendant does not need to know exact details of the offence.
The defendant drove a man to a site where he committed a murder. He claimed not to know that the other man had a weapon or a plan to commit the offence.
The defendant only needs to have contemplated a “real possibility” that the offence may be committed to be liable.
The defendant either killed his wife himself or arranged for a hired killer to do it. It was not clear who was the killer; both had the mens rea and the actus reus had occurred.
An example of “counselling”. Conviction was possible.
The defendant hired a bouncer to kill her ex-husband. She was not present at the killing.
Example of “counselling”: soliciting a crime before the event.
184
CRIMINAL LAW
CASE R v Tyrell [1894]
Wilcox v Jeffery [1951]
FACTS
PRINCIPLE
It was alleged that an underage girl had encouraged an older man to have sex with her.
A victim cannot be liable as an accomplice in the breach of a law designed to protect her.
Jeffery, a US musician (without a visa to perform) came to the UK and held a concert. Wilcox had been present at the airport when he arrived, bought a ticket for the concert, attended, applauded and wrote a positive magazine article about the concert.
This was an example of “abetting�. Wilcox encouraged the musician by paying for a ticket for his concert, applauding enthusiastically, writing an article about the concert and selling magazines based on the article.
185
