SAMPLE NOTES FROM OUR GDL CASE BOOK:
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Tort: Professional Negligence
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Public Law: Parliamentary Sovereignty
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TORT LAW
PROFESSIONAL AND CLINICAL NEGLIGENCE CASE
FACTS
PRINCIPLE
Bailey v Ministry of Defence
A woman with gallstones received negligent treatment following an operation in a hospital that was managed by the Ministry of Defence, and 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: here, 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.
Barnett v Chelsea and Kensington Hospital Management Committee
Barnett, who had been vomiting, was turned away by a doctor at a hospital's casualty department, who sent a message that he should see his own doctor. Barnett later died of arsenic poisoning. He would have died even if he had been seen by the doctor.
Bolam v Friern Hospital Management Committee
Bolitho v City and Hackney Health Authority
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. 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.
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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. 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 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 his opinion). As here, however, it would be rare for a medical opinion to not be accepted. 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
FACTS
PRINCIPLE
Bull v Devon Area Health Authority
A woman delivered twins at a hospital site that did not have the correct resources to deal with the complications. A suitably qualified practitioner could not be called over to assist in time.
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.
Cassidy v Ministry of Health
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 v Afshar
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. However, the patient would have gone ahead with the operation even if she had been warned.
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. However, causation was satisfied on policy grounds – unless the failure to warn was regarded as legally causative of the injury, the duty to warn would be hollow. COMPARE with Montgomery
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.
It is not negligent for a professional not to know of every single new development in their field.
De Freitas v O’Brien and Connolly
A spinal surgery resulted in complications. A negligence claim was brought. At issue was the size of the 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 in agreement out of a body of over 1,000 was sufficient). APPLIED Bolam COMPARE with Bolitho
FvR
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. APPLIED Bolitho
Goodwill v British Pregnancy Advisory Service
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.
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TORT LAW
CASE
FACTS
PRINCIPLE
Marriot v West Midlands RHA
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, and did not refer him back to hospital. He 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. APPLIED Bolitho
Maynard v West Midlands RHA
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 Whitehouse v Jordan
Montgomery v Lanarkshire Health Board
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. 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, as it could still be proved in the normal way here. OVERRULED Sidaway COMPARE with Bolam
Newman v UK Medical Research Council (“CreutzfeldtJakob Disease Litigation”)
A link between human growth hormone and the CreutzfeldtJakob disease had been known about nearly 20 years prior, but a full trial had not yet been carried out.
Established risks should be acknowledged and the consequent risk of harm should be appreciated. The Council should have ceased treatments while they investigated.
O'Hare v Coutts & Co
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.
The court favoured the Montgomery standard over the Bolam test in relation to advice on investments. APPLIED Montgomery
Pearce v United Bristol Healthcare NHS Trust
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 the doctor has to say.
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TORT LAW
CASE
FACTS
PRINCIPLE
Prendergast v Sam & Dee Ltd
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.
R v Cambridge HA, ex parte B
The health authority stopped providing an expensive experimental treatment for a child dying of a rare leukaemia.
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).
Re F (Mental Patient: Sterilisation) AKA F v West Berkshire Health Authority
A mentally handicapped 36-yearold 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.
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 & effects.
A criminal appeal. The defendant stabbed the victim who died in hospital eight days later of pneumonia. New evidence emerged which showed that the pneumonia was probably caused by negligent treatment (he was given a drug 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
Vials storing anaesthetic had microscopic ruptures that contaminated it and led to the paraplegia of a patient who was admitted for a minor operation.
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.
Ross v Caunters
A court found a duty of care from solicitors to the beneficiaries who would otherwise have benefitted but for the incorrect execution of a will.
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
A surgeon did not advise his patient about a highly unlikely complication of surgery. The complication occurred, leaving her disabled. She claimed that the surgeon had been negligent in not disclosing 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. OVERRULED by Montgomery
R v Jordan
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TORT LAW
CASE
FACTS
PRINCIPLE
Smith v Leech Brain & Co
The claimant was burned as a result of his negligent 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 defendant could have foreseen injury by burning they were liable for the resulting death.
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 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, which she would have opted for instead. At issue
The doctor's intervening clinical negligence was not enough to break the chain of legal causation, so the employer was still liable for its negligence. It was foreseeable Webb's pre-existing condition made her more vulnerable.
White v Jones
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.
Whitehouse v Jordan
A baby was born with brain damage following a complicated birth, as a result of the doctor using forceps to assist in the delivery.
An error of judgement made with reasonable care and skill is not automatically a breach of duty.
Wilsher v Essex Area Health Authority
A junior doctor gave a prematurely-born 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.
Webb v Barclays Bank plc; Webb v Portsmouth Hospitals NHS Trust
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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.
CONSTITUTIONAL AND ADMINISTRATIVE LAW
PARLIAMENTARY SOVEREIGNTY CASE
FACTS
PRINCIPLE
AXA General Insurance Ltd v Lord Advocate
An appeal by insurers concerning the rejection of their challenge to the lawfulness of an Act of the Scottish Parliament. That Act dealt with asbestos-related personal injury and negligence.
The Courts will not entertain legislation which seeks to abolish their inherent power of judicial review. Lord Hope held: “It is not entirely unthinkable that a government … may seek to use [its majority] to abolish judicial review or to diminish the role of the courts in protecting the interests of the individual. Whether this is likely to happen is not the point. It is enough that it might conceivably do so. The rule of law requires that the judges must retain the power to insist that legislation of that extreme kind is not law which the courts will recognise.”
Burmah Oil Co v Lord Advocate
Oil installations were destroyed by British soldiers during the Second World War to prevent them falling into Japanese hands. The owners, Burmah Oil, wanted compensation and the House of Lords ruled in favour of them receiving it. However, Parliament then passed the War Damage Act 1965 with retroactive effect to exempt the Crown from any such liability.
Parliament can pass legislation which overrules an earlier decision of the Courts (in this case, the 1965 Act). Parliament therefore has no temporal limits to what it can legislate on.
Cheney v Conn (Inspector of taxes)
Cheney, a taxpayer, argued that taxation under the Finance Act 1964 was unlawful as part of those taxes funded nuclear weapons, contrary to the Geneva Convention (as incorporated into domestic law by the Geneva Conventions Act 1967).
1. A statute cannot be challenged on the grounds that its purpose is illegal, as this would deny the supremacy of Parliament. 2. Statute overrides international law: “it is not for the court to say that a parliamentary enactment, the highest law in this country, is illegal”. COMPARE with Costa v ENEL. Note: this judgment was handed down prior to the passing of the ECA 1972.
Costa v ENEL
Following the Italian nationalisation of an electricity company, Mr Costa challenged a bill received from the new company.
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Confirmed the supremacy of EU law over domestic law. COMPARE with Cheney v Conn, ex parte Factortame and Miller
CONSTITUTIONAL AND ADMINISTRATIVE LAW
CASE
Ellen Street Estates v Minister of Health
FACTS
PRINCIPLE
The local authority sought make an improvement scheme under the Housing Acts 1925 and 1930. The claimants sought compensation under the earlier Acquisition of Land (Assessment of Compensation) Act 1919.
1. Parliament cannot be bound by previous laws, nor bind itself as to the form of subsequent legislation. 2. A later Act, so far as its provisions are inconsistent with particular provisions of an earlier Act, repeals those earlier provisions by implication. COMPARE with Vauxhall v Liverpool
Ex parte Canon Selwyn
Canon Selwyn unsuccessfully sought to question the validity of the Irish Church Act 1869.
Parliament is supreme and can alter the constitution at will; the courts may not question an Act of Parliament.
Miller
See the Royal Prerogative chapter.
See the Royal Prerogative chapter.
Mortensen v Peters
A Danish fisherman on a Norwegian vessel was convicted of fishing in the Moray Firth contrary to a byelaw, even though he was outside the limit of territorial waters under international law.
There are in theory no geographical limits on what Parliament may legislate on: “it is [not] inconceivable that the British Legislature should attempt for fishery regulation to legislate against all and sundry in such a place.”
Pickin v British Railways Board
The land on which an abandoned railway line stood was due to vest in Pickin. Before this could happen, Parliament passed a new Act which prevented this from happening. The Act had stemmed from a private member's bill. Pickin alleged that it had only passed because the BRB had misled Parliament.
With ex parte Canon Selwyn, established the “enrolled bill rule”: once a bill is on the statute book it cannot be altered by anyone other than Parliament. The Courts are not empowered to rule on the procedure by which Parliament has passed an Act.
R (Evans) v Attorney General
A long-disputed case concerning a Guardian Journalist who sought the release of Prince Charles’ “Black Spider Memos” to Government departments. The Government had refused his request under the Freedom of Information Act 2000, but the Upper Tribunal had ruled in favour of some disclosure. The AG issued a certificate under that Act to override the Tribunal's decision on the basis of constitutional conventions concerning Prince Charles' role as future King. Judicial review of the certificate was permitted and the AG's appeal dismissed by the Supreme Court.
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Lords Neuberger, Kerr and Reed held that the AG could not justify issuing the certificate in an attempt to overrule the Upper Tribunal, simply on the ground that he had reached a different conclusion to the Tribunal. That would contradict fundamental principles: 1. A court's decision cannot be ignored or set aside by anyone, including the executive. 2. The executive's actions are reviewable by the court. It is of “constitutional importance… that a decision of the executive should be reviewable by the judiciary”.
CONSTITUTIONAL AND ADMINISTRATIVE LAW
CASE
R v Secretary of State for Transport ex parte Factortame Ltd (Nos. 1 and 2)
FACTS
PRINCIPLE
Spanish fishermen argued that the UK had legislated contrary to EU law in the Merchant Shipping Act 1988, which imposed nationality and residence requirements on fishermen, thereby excluding the Spanish fishermen from UK waters. They sought damages from the Government. The Secretary of State argued that the Government had a wide discretion under EU law and the action was necessary to alleviate economic problems facing UK fisheries.
The House of Lords held that the breach was sufficiently serious to render the UK government liable to pay damages. Although the Government had acted in good faith to protect national quotas, the nationality and residence requirements were discriminatory and exceeded what was necessary to achieve its aims.
In Factortame No. 1, Lord Bridge referred a question about conflicts between national and community law to the ECJ, which held that a national court has a duty to set aside statute in certain circumstances.
R (Jackson) v Attorney General
R v Jordan
This case concerned a challenge to the validity of the Hunting Act 2004. Jackson's argument was that the Parliament Act 1949 (under which the Parliamentary procedure used to pass the Hunting Act 2004 was provided for) was invalid as the 1949 Act had itself been passed without the consent of the House of Lords, by means of the Parliament Act 1911. The House of Lords (the Court!) held that the 1949 Act had been validly enacted under the power contained in the 1911 Act to enact legislation without the consent of the House of Lords, and therefore the 2004 Act had also been validly enacted.
Jordan was imprisoned for offences under the Race Relations Act 1965. He argued that the Act was invalid as it curtailed freedom of speech.
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The duty of interpretation under the European Communities Act 1972 can be seen a presenting a significant threat to Parliamentary Supremacy. The court recognised that EU law is supreme over national law and disapplied the 1988 Act. However, the supremacy of EU law is only valid as long as Parliament allows it to be. COMPARE with Cheney v Conn, Costa v ENEL and Miller Important obiter comments about Parliamentary Sovereignty (and the Rule of Law) were made by the Court: Lord Steyn – Parliamentary sovereignty is “a construct of the common law”. Lord Hope – “Parliamentary sovereignty is no longer, if it ever was, absolute … the rule of law enforced by the court is the ultimate controlling factor on which our constitution is based”. Baroness Hale – the courts may “even reject” a serious attempt to subvert the rule of law (such as if the Government were to seek to get rid of judicial review). COMPARE with AXA v Lord Advocate and Pickin v BRB The Courts have no power to question the validity of legislation, even where human right infringements are alleged. Note: this case pre-dates the Human Rights Act 1998, which has a procedure for declarations of incompatibility which might now apply in situations like this.
CONSTITUTIONAL AND ADMINISTRATIVE LAW
CASE
FACTS
R v Secretary of State for Employment ex parte Equal Opportunities Commission
Thresholds in the Employment Protection (Consolidation) Act 1978 which excluded part-time employees from compensation for unfair dismissal and redundancy conflicted with EU law. The Secretary of State could not show that the provisions were objectively justified.
R v Secretary of State for the Home Department ex parte Simms
The Secretary of State introduced a blanket ban on journalists talking to prisoners, unless they had signed undertakings confirming they would not use any information obtained in oral interviews in a professional capacity. The journalist who had been visiting Simms refused to sign.
Thoburn v Sunderland City Council
Vauxhall Estates Ltd v Liverpool Corporation
PRINCIPLE
Market stall holders (the so-called “metric martyrs”) were convicted of offences relating to their continued use of imperial, rather than metric, weights and measures. EU Directives and subsequent Regulations forbade non-metric weights and measures in goods, although the Weights and Measures Act 1985 had previously permitted it. At issue was whether that domestic legislation had impliedly repealed the European Communities Act 1972 (“ECA 1972”) to the extent that it empowered the provision of subordinate legislation inconsistent with the 1985 Act. Like in Ellen Estates, the claimants in this case asked for compensation to be judged under the Acquisition of Land (Assessment of Compensation) Act 1919 rather than the Housing Act 1925.
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The Court had jurisdiction to declare the domestic legislation (the 1978 Act) incompatible with EU law, which it did. Arguably an example of how Parliamentary sovereignty is threatened by the supremacy of EU law. COMPARE with Miller The blanket ban that the Secretary of State sought was ultra vires and curtailed Simms' fundamental rights; the Court interpreted the legislation as only authorising a lesser level of bans. Although Parliament can legislate on whatever it wants to, if it seeks to limit human rights, it must do so explicitly, not ambiguously. COMPARE with R v Jordan
The 1985 Act had not impliedly repealed any part of the ECA 1972 that would allow for the provision of subordinate legislation inconsistent with it. The case proposed the idea of “constitutional statutes”: statutes which could not be impliedly repealed, as they have a degree of entrenchment. The ECA 1972 was held to be such a statute. COMPARE with Ellen Street Estates and Vauxhall v Liverpool
A clear example of implied repeal in action – the relevant provisions in the 1919 Act were held to have been impliedly repealed by provisions in the 1925 Act dealing with the same issue. COMPARE with Thoburn v Sunderland City Council