SAMPLE NOTES FROM OUR GDL CASE BOOK:

: Professional and Clinical Negligence

 Criminal Law: Joint Enterprise and Accomplice Liability

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PROFESSIONAL AND CLINICAL NEGLIGENCE KEY CASES

CASE FACTS PRINCIPLE

1. The hospital authority owed a duty Barnett v Barnett, who had been vomiting, was of care from the moment of accepting Chelsea and turned away by a doctor at a responsibility – by turning Barnett Kensington hospital's casualty department. away, the hospital's doctor was acting Hospital Barnett was told to see his own negligently. Management doctor. Barnett later died of arsenic Committee poisoning. He would have died even if 2. Applied the “but for” test to clinical he had been seen by the hospital negligence: Barnett would have died [1969] doctor. even if he had been seen.

Established the Bolam test for clinical negligence: limb 1 considers the A doctor conducting electro- standard of a “reasonable man convulsive therapy did not give the exercising and professing to have that patient any muscle relaxant. The special skill”; limb 2 explains that a Bolam v Friern patient suffered a fracture as a result. doctor will not be negligent if “he has Hospital acted in accordance with a practice Management The patient unsuccessfully alleged accepted as proper by a reasonable Committee that it was negligent not to give him body of medical men skilled in that the relaxant, restrain him and warn [1957] particular art.” him of the risks. The hospital relied on expert witnesses who opposed COMPARE with Bolitho – in that case, relaxants and restraints. 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 A young child was seriously ill. The (i.e. that a medical expert could point senior doctor was unable to attend. to a logical basis for her opinion). It Bolitho v City The child then suffered a cardiac would be rare for such a medical and Hackney arrest. The doctor argued that, even if opinion not to be accepted. The Health she had attended, she would not have defendant was not negligent here. Authority performed the intubation (that the COMPARE with Bolam – a doctor [1997] claimant’s experts said was the correct action) – and she was cannot escape liability simply by supported in this by medical experts. showing that another doctor would have done the same, regardless of whether it was illogical to do so.

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CASE FACTS PRINCIPLE

Cassidy v Medical professionals and authorities Ministry of Cassidy had an operation on his hand owe a to their patients – Health which, through negligence, resulted it is not necessary to establish in stiff fingers. precisely which employee of a [1929] hospital authority was negligent.

1. When asked, a doctor is under an obligation to discuss any risk, no Chester was asked about the risks matter how small. implicit in a surgery to correct back pain. The neurosurgeon omitted to 2. The neurosurgeon's failure to warn mention the small risk of a certain of the complication did not increase Chester v complication. The neurosurgeon did the risk, so conventional Afshar not operate negligently, but the principles could not be satisfied. Causation was satisfied on policy [2003] complication developed as a result. The patient would have gone ahead grounds – unless the failure to warn with the operation even if she had was regarded as part of the chain of been warned but the court did not causation, the duty to warn would be apply the “but for” test. 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 A rare, but severe, complication person in the patient's position would Montgomery v during the birth led to Mrs be likely to attach significance to the Lanarkshire Montgomery’s child having severe risk. Moving away from Bolam, it Health Board disabilities. Had she known of the risk, does not matter if a body of medical [2015] she would have requested a less risky opinion would support not disclosing caesarean section. a risk. 2. The Chester approach on causation was not considered. OVERRULED Sidaway COMPARE with Bolam

The duty on health authorities is not The health authority stopped absolute; they are not obliged to R v Cambridge providing an expensive experimental provide every possible treatment no HA, ex parte B treatment for a child dying of a rare matter the cost (although in this case [1995] leukaemia. they had not given due weight to the family's views).

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CASE FACTS PRINCIPLE

The defendant stabbed the victim who died in hospital eight days later of pneumonia. The pneumonia was A medical act must be “palpably caused by negligent treatment (the wrong” to break the chain of R v Jordan administration of a drug continued causation, as it was here. The victim's [1956] after it was discovered he was death was caused by the medical intolerant to it, and he was given negligence, not the criminal act. abnormal amounts of intravenous fluid).

It is not negligent to fail to take into Microscopic cracks in vials in which account risks which were Roe v Minister anaesthetic was stored allowed unforeseeable at the time (the “state of Health contamination. It was used in minor of the art” defence). The anaesthetist surgery and caused paraplegia of the [1954] was not negligent in relying on a claimant. visual inspection for cracks.

A professional can be held liable for Solicitors received instructions from a negligence, where they assume a client to amend a will after a family duty to the claimant, even if there is White v Jones quarrel, but the solicitors did nothing no . The solicitor's duty here [1995] and the testator then died. The extended to the intended beneficiary solicitors were found to be negligent as it was reasonably foreseeable by to the would-be beneficiary. the solicitor that his negligence might deprive that beneficiary.

A baby was born with brain damage Whitehouse v following a complicated birth. The An error of judgement made with Jordan damage was caused by the use by the reasonable care and skill is not [1981] doctor of forceps to assist in the automatically a breach of duty. delivery.

1. A health authority has a duty to A junior doctor gave a prematurely- provide staff of a sufficient skill level. born baby the wrong amount of 2. There is no lower standard for a Wilsher v Essex oxygen. The baby developed trainee doctor – all doctors are held Area Health blindness, which could have been to the same standard. Authority caused by a number of different [1988] factors. The medical on 3. The “but for” test could not be whether it was the excess oxygen was satisfied as there were multiple conflicting. possible causes. The onus of proof was on the claimant.

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PROFESSIONAL AND CLINICAL NEGLIGENCE

CASE FACTS PRINCIPLE

The courts are willing, in exceptional circumstances, to utilise a “material A woman with gallstones received contribution” approach to causation. Bailey v negligent treatment following an It was sufficient for the patient to Ministry of operation in a hospital managed by establish that the negligent post-op Defence the Ministry of Defence. She suffered care had made a material (i.e. more brain damage as a result of the [2008] than negligible) contribution to the deterioration of her condition. condition that caused the subsequent brain damage.

1. Hospitals and Health Authorities Bull v Devon A woman delivered twins at a hospital owe a duty of care to their patients. Area Health site without adequate resources to 2. Health Authorities may be liable for Authority deal with the complications. A suitably qualified practitioner could an inadequate system which puts a [1993] not be called over to assist in time. patient under the care of an inappropriate staff member.

Crawford v Board of A complication from a blood It is not negligent for a professional to Governors of transfusion during surgery had been be unaware of every single new Charing Cross written about in The Lancet six development in their field. Hospital months before the surgery.

[1953]

A body of opinion for the Bolam test does not need to be “substantial” or a A spinal surgery resulted in De Freitas v majority (here, 11 professionals in complications. A negligence claim O’Brien and agreement out of a body of over was brought. At issue was the size of Connolly 1,000 was sufficient). the body of medical opinion required [1995] for the second limb of the Bolam test. APPLIED Bolam COMPARE with Bolitho

The defendant surgeon was able to show that a reasonable body of Duce v A woman who underwent a total surgeons would not have warned of Worcetershire hysterectomy was not advised by her the risk. Montgomery was applied. Acute Hospitals doctor that there was a very small risk The test was two stage, the first was NHS Trust of her developing chronic post- to look at what risks were known and surgical pain (CPSP). She had been the second to look at a body of [2019] advised of the general risk of pain. opinion to see if a warning should have been given. It was held that the warning was not required.

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CASE FACTS PRINCIPLE

A woman was not advised of the very Suggested, as in Bolitho, that F v R small risk of a sterilisation process unreasonable practices will not meet failing. She later became pregnant the Bolam standard. [1983] and sued her gynaecologist for negligence. APPLIED Bolitho

Goodwill v British BPAS did not advise of the risks of a Doctors do not owe a duty to third Pregnancy vasectomy reversing. A man parties. There must be a proximity of Advisory subsequently fathered a child. The relationship between the Service child’s mother tried to claim. professional and the person advised.

[1996]

A man with head injuries was The court applied the “risk analysis” discharged from hospital. His approach in Bolitho and held, contrary to the evidence presented Marriot v West condition did not improve. His GP by the medical experts, that it was not Midlands RHA came to see him but failed to appreciate how serious the condition a reasonable exercise of the GP's [1998] might become. The GP did not refer discretion to leave the patient at him back to hospital. The man later home in the circumstances. deteriorated further. APPLIED Bolitho

An invasive biopsy was performed to There is room for differences of Maynard v determine a patient’s illness. The opinion in the medical profession. West Midlands doctors did not want to wait for less The court will generally not arbitrate RHA invasive tests as one potential illness between differing bodies of competent medical opinions. [1985] needed to be treated in its very early stages. APPLIED Whitehouse v Jordan

Newman v UK Medical A link between human growth Established risks should be Research hormone and the Creutzfeldt-Jakob acknowledged and the consequent Council disease (CJD) had been known about risk of harm should be appreciated. (“Creutzfeldt- for nearly 20 years but children were The Council should have ceased Jakob Disease given the growth hormone, and some treatments while they investigated. Litigation”) went on to develop CJD. [1997]

At issue was whether a bank had The court favoured the Montgomery O'Hare v Coutts provided the claimants with sufficient standard over the Bolam test in & Co information regarding a series of relation to advice on investments. [2016] investments so that they were aware of the material risks. APPLIED Montgomery

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CASE FACTS PRINCIPLE

Pearce v United In deciding which risks to disclose to a Bristol A baby was stillborn after a doctor patient, the doctor should consider Healthcare NHS refused to medically induce delivery the emotional state of the patient and Trust or perform a Caesarean section. their ability to comprehend what is [1996] being said to them.

Prendergast v A pharmacist dispensed incorrect The duty of care includes writing and Sam & Dee Ltd drugs due to not double-checking the checking prescriptions competently. doctor's near-illegible handwriting on Liability was apportioned 25% to the [1989] the prescription. doctor and 75% to the pharmacist.

Re F (Mental 1. Doctors may operate on adults Patient: unable to to or refuse Sterilisation) A mentally handicapped 36-year-old woman in a mental hospital began a treatment (due to an emergency or AKA relationship with another patient. mental disability) if doing so is in the patient's best interest. F v West Doctors wanted to sterilise her as she Berkshire had no way to deal with pregnancy or 2. The court should be consulted Health capacity to understand the where sterilisation is considered to be Authority alternative options. in the patient's best interest due to its special characteristics and effects. [1990]

Professionals owe a duty of care to A court found solicitors owed a duty their clients when acting for them but Ross v Caunters of care to potential beneficiaries who may also owe a duty of care to third parties, such as the beneficiaries [1980] would have benefitted but for the incorrect execution of a will. under a will. SEE White v Jones

Sidaway v A surgeon did not advise his patient Lord Bridge considered a 10 percent Board of about a highly unlikely complication risk (or higher) being the boundary Governors of of surgery. The complication above which a risk must be discussed Bethlem Royal occurred, leaving her disabled. She with a patient in advance. Hospital claimed that it was negligent to have OVERRULED by Montgomery [1985] failed to disclose the risk.

The claimant was burned as a result The defendant takes the claimant as Smith v Leech of his employer’s negligent care of he finds him and is responsible for the Brain & Co working conditions. The burn caused damage he causes – the “thin skull existing pre-cancerous cells to rule”. As the defendants could have [1962] develop into cancer, which killed the foreseen injury by burning, they were claimant. liable for the resulting death.

108 TORT LAW

CASE FACTS PRINCIPLE

An application of the Bolam test as Taaffe v East of Paramedics examined a woman modified by Bolitho: expert evidence England suffering from chest pains, but did not can be overturned if it is illogical. Ambulance advise her to go to hospital, as she Although other paramedics might Service NHS had a pre-existing appointment with have done the same, that still would Trust her GP the next day. She died of a not have made it reasonable. The cardiac arrest five days later. [2012] paramedics were negligent.

Webb v Webb, who already suffered from the Barclays Bank effects of polio, fell while at work and The doctor's intervening clinical plc; was badly hurt. She had an negligence was not enough to break Webb v amputation above the knee. The the chain of legal causation; the Portsmouth doctor had negligently failed to employer remained liable in Hospitals NHS inform her of the alternatives, for negligence because it had failed to Trust which she would have opted in maintain the land where she fell. preference to amputation. [2001]

109 CRIMINAL LAW

JOINT ENTERPRISE KEY CASES

CASE FACTS PRINCIPLE

Morris and the victim were fighting. For joint enterprise, each person is Anderson came and joined in. liable for the actions in pursuit of the R v Anderson Anderson stabbed the victim. In this enterprise, even if they have unusual and Morris case the killing was “an overwhelming consequences, provided that what happens is not outside all [1966] supervening event”. The other protagonists were not guilty of the contemplation. murder. COMPARE with English and Jogee

Where the act committed is Mr English and another man used fundamentally different from the wooden posts to attack a police original act that was foreseen and R v English officer. The other man then stabbed envisaged, there should be no liability [1997] the policeman to death. It was argued for joint enterprise. that English did not know the other man had a knife. COMPARE with Anderson and Morris and Jogee

A secondary party needs to intend the offence is carried out before they can Jogee's co-defendant killed a man be convicted of it – it is not sufficient with a knife. The judge directed the that they simply foresaw that the jury that Jogee was guilty of murder offence might occur: “The error [in as an if he had participated the old case law] was to equate R v Jogee in the attack on the victim and foresight with intent to assist, as a matter of law; the correct approach is [2016] realised that his co-defendant might stab the victim with intent to cause to treat it as evidence of intent.” The him really serious harm. Both were judge's direction was therefore convicted. Jogee appealed the trial incorrect and Jogee's conviction was judge's directions to the jury. quashed. COMPARE with English and Anderson and Morris

If the act is in “a different league” from that which the defendant R v Mendez and A group of boys attacked another foresaw, they will not be liable for Thompson after a disagreement at a party. One joint enterprise. [2010] of them stabbed him, and he died. COMPARE with English and Anderson and Morris

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CRIMINAL LAW

CASE FACTS PRINCIPLE

All that is necessary is foresight that Two men went with a third to a drug the other may be committed: dealer to buy drugs. One shot the “Where two parties embark upon a drug dealer as soon as he opened the R v Powell and joint enterprise to commit a crime and door. The other two were held jointly Daniels one foresees that the other may carry liable for his murder. They knew that out an act constituting a crime in the [1999] he was carrying a gun, and so could course of the enterprise, the former is foresee he could cause death or also liable for the crime committed by serious injury. the latter.”

JOINT ENTERPRISE

CASE FACTS PRINCIPLE

Becerra gave Cooper a knife to use in R v Becerra and a burglary. When they were The closer an attempted withdrawal Cooper interrupted during the burglary, is prior to commission of the offence, Becerra said, “Let’s go” and tried to the less likely it is to be effective as a [1975] run away, but Cooper stabbed the withdrawal from the joint enterprise. victim.

Where an accomplice has contemplated the consequences, he R v Gilmour A fire bombing resulted in the deaths will be liable for the extent to which of three people. The defendant had he acted with (here [2000] not foreseen this infliction of GBH. manslaughter, not murder). COMPARE with Jogee

The defendant helped plan a An example of an effective R v Grundy burglary, but withdrew two weeks before it took place, during which withdrawal. [1977] time he repeatedly tried to prevent it COMPARE with Rook happening.

Withdrawal must be unequivocal and The defendant helped plan a murder before the offence is committed. Just R v Rook but did not participate on the day. He not being around was not enough. [1993] was convicted of joint enterprise murder. COMPARE with Grundy and Whitefield

The defendant agreed to burgle a flat, Where the defendant has effectively R v Whitefield but told the other party that he was withdrawn from his part in the enterprise, he will not be liable. [1984] withdrawing and took no part in the event. The burglary took place. COMPARE with Grundy and Rook

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CRIMINAL LAW

ACCOMPLICE LIABILITY KEY CASES

CASE FACTS PRINCIPLE

The defendant spiked the drink of 1. “Aid, abet, counsel or procure” are given their ordinary English AG’s Ref (No. 1 another, knowing that he was going meanings. of 1975) to drive. The other was later convicted of drink-driving. The 2. Example of “procurement” – [1975] defendant could be convicted under meaning to “produce by endeavour” s.36 CJA. here.

An old case. A butcher asked a vet to Callow v An offence of strict liability does not check whether meat was fit for Tillstone require any accomplice to it to have consumption. The vet negligently and MR. [1900] incorrectly certified that it was.

A haulier took an overweight lorry of Established the MR for aiding and coal onto the road. He was collecting National Coal abetting: intention to commit the act the shipment to transport it to a Board v Gamble that assisted the primary defendant power plant run by the coal board, and knowledge that the perpetrator [1959] who were charged with aiding and is committing the act. abetting.

“Aiding” would include (as some The defendant was present as a others at the scene did) holding R v Clarkson woman was raped but did not someone down but would not include simply being present. [1971] participate or encourage in any way. The defendant was not guilty. COMPARE with Du Cross v Lambourne and Russell

The defendant had a duty to act; his R v Russell The defendant stood by while his wife failure to intervene made him liable drowned his children. He was guilty of [1987] abetting manslaughter. COMPARE with Clarkson and Du Cross v Lambourne

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CRIMINAL LAW

ACCOMPLICE LIABILITY

CASE FACTS PRINCIPLE

A man thought to be a member of a DPP for NI v paramilitary group in Northern “Aiding” includes guiding the lead Maxwell Ireland knew that some violent attack perpetrators to the scene, even was planned but did not have exact without concrete knowledge of what [1978] details. He guided the perpetrators to they will do there. a pub which was then bombed.

The defendant had a duty to act, so Du Cross v The defendant was in his car while it his failure to intervene made him Lambourne was speeding. It was not clear who was driving but in any event the liable. [1907] defendant was guilty. COMPARE with Clarkson and Russell

The defendant solicitor was charged with helping a builder sell a house at a price in breach of a statutory Johnson v The defendant must merely foresee regulation. The solicitor was not party Youden the “essential matters” constituting to the events, which included an the offence. [1950] earlier and undeclared payment by the purchaser. He could not have the to commit the offence.

1. Example of “aiding”. Supplying with The defendant purchased equipment tools, knowing that they were to be R v Bainbridge which was used to break into a bank. used for some illegal purpose was He was aware that it might be used sufficient. [1960] for some illegal purpose but did not know the details. 2. The defendant does not need to know exact details of the offence.

The defendant drove a man to a site The defendant only needs to have where he committed a murder. He R v Bryce contemplated a “real possibility” that claimed not to know that the other the offence may be committed to be [2004] man had a weapon or a plan to liable. commit the offence.

The defendant either killed his wife himself or arranged for a hired killer R v Gianetto An example of “counselling”. to do it. It was not clear who was the conviction was possible [1997] killer; both had the mens rea and the had occurred.

The defendant hired a bouncer to kill R v Luffman Example of “counselling”: soliciting a her ex-husband. She was not present crime before the event [2008] at the killing.

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CRIMINAL LAW

CASE FACTS PRINCIPLE

R v Tyrell It was alleged that an underage girl A victim cannot be liable as an had encouraged an older man to have accomplice in the breach of a law [1894] sex with her. designed to protect her.

Jeffery, a US musician (without a visa This was an example of “abetting”. to perform) came to the UK and held Wilcox encouraged the musician by Wilcox v Jeffery a concert. Wilcox had been present at paying for a ticket for his concert, the airport when he arrived, bought a applauding enthusiastically, writing [1951] ticket for the concert, attended, an article about the concert and applauded and wrote a positive selling magazines based on the magazine article about the concert. article.

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