Duty of care
Duty of care legal meaning, translation and judicial precedents.
Meaning & Judicial Interpretation: (اردو مفہوم اور قانونی تشریح)
Two licensees allowed to enter and be upon the licensor's same piece(s) of land simultaneously in order to work their respective licenses, which each licensee held independently and in its own right, and which respective license was for diverse, distinct and separate acts
Question as to what was the duty (if any) of each licensee towards the other in such a situation answered.
If the act was deliberate, the party injured would have no claim in law even though the injury was intentional, so long as the other party was merely exercising a legal right; if the act involved lack of due care, again no case of actionable negligence would arise unless the duty to be careful existed.
To determine whether such social workers, in addition, also owed a similar duty to the claimants (persons they provided services to) depended on whether they assumed a responsibility towards such claimants to perform their functions with reasonable care
Concept of an assumption of responsibility was not confined to the provision of information or advice; it could also apply where, a claimant entrusted the defendant with the conduct of his affairs, in general or in particular
Such situations could arise where the defendant undertook the performance of some task or the provision of some service for the claimant with an undertaking that reasonable care would be taken
Such an undertaking may be express, but was more commonly implied, usually by reason of the foreseeability of reliance by the claimant on the exercise of such care.
Local housing authority in question provided a mother and her two children ('the claimants') with accommodation owned by a third party
Claimants were subjected to harassment, abuse and anti-social behaviour from a neighbor at the accommodation provided
Claimants claimed damages against the local housing authority for its negligence and contended that if the local authority had carried out its duties under the Children Act, 1989 (United Kingdom) competently, it would either have moved the family as a whole or moved the claimants out of the home
Question as to whether the local authority owed common law duty of care to the children to protect them from the physical and psychological damage caused by a third party
Held, that the basic premise for determining the existence or non-existence of a duty of care on the part of a public authority was that public authorities were generally subject to the same general principles of the law of negligence as private individuals and bodies, except to the extent that legislation required a departure from those principles
Public authorities may owe a duty of care in circumstances where the principles applicable to private individuals would impose such a duty, unless such a duty would be inconsistent with, and was therefore excluded by, the legislation from which their powers or duties were derived
Public authorities did not owe a duty of care at common law merely because they had statutory powers or duties, even if, by exercising their statutory functions, they could prevent a person from suffering harm
Public authorities could come under a common law duty to protect from harm in circumstances where the principles applicable to private individuals or bodies would impose such a duty, as for example where the authority had created the source of danger or had assumed a responsibility to protect the claimant from harm, unless the imposition of such a duty would be inconsistent with the relevant legislation
In the present case, when the local authority had investigated and monitored the claimants' position, it had not been involved in the provision of a service to the claimants and their mother on which they could be expected to rely
Nor could it be said that the claimants and their mother had entrusted their safety to the local authority, or that it had accepted that responsibility
Nor had the local authority taken the claimants into its care, and thereby assumed responsibility for their welfare
Nature of the statutory functions of the local authority relied on in the particulars of claim did not in itself entail that the local authority assumed or undertook a responsibility towards the claimants to perform those functions with reasonable care
Of course, it was possible that even where no such assumption could be inferred from the nature of the function itself, it could nevertheless be inferred from the manner in which the public authority had behaved towards the claimant in a particular case
In the present case, however, the particulars of claim did not provide a basis for leading evidence about any particular behaviour by the local authority towards the claimants or their mother, besides the performance of its statutory functions, from which an assumption of responsibility might be inferred
Nature of the statutory functions [under the Children Act 1989 (United Kingdom)] on which the claimants relied in their particulars of claim did not in itself entail that the local authority had assumed or undertaken a responsibility to perform those functions with reasonable care or that its employees had assumed a responsibility towards the claimants to perform their functions with reasonable care so as to make the local authority vicariously liable for any negligence by its employees
No basis was found for the breach of duty alleged in the particulars of claim by the local authority's failure to remove the claimants from their mother's home since the harm suffered by the claimants was not attributable to lack of reasonable parental care
Particulars of claim did not disclose any recognisable basis for a cause of action against the local authority, and, accordingly, the claim should not proceed to trial.
Survey of case-law on the subject of a local authority's duty of care towards children affected by the discharge of its statutory functions.
Common law (in United Kingdom's jurisdiction) had abandoned the search for a general principle capable of providing a practical test applicable in every situation in order to determine whether a duty of care was owed and, if so, what was its scope
Ingredients of foreseeability of damage, proximity and fairness did not require a re-evaluation of whether those criteria were satisfied on every occasion on which an established category of duty was applied
Where the existence of a duty of care had previously been established, a consideration of justice and reasonableness had already been taken into account in arriving at the relevant principles and it was, normally, only in cases where the court was asked to go beyond the established categories of duty of care that it would be necessary to consider whether it would be fair, just and reasonable to impose such a duty.
Duty of non-medical hospital staff to take reasonable care not to provide misleading information to patients which might foreseeably cause physical injury
Scope
Question as to whether an emergency receptionist at a hospital should or should not be found negligent for providing inaccurate waiting time information to a patient who, in reliance upon that information, left the emergency department and, as a result, suffered permanent brain damage and disabilities
Claimant suffered a head injury in an assault and visited a hospital's emergency department
Claimant told the receptionist that he had suffered a head injury and felt as if he might collapse - Receptionist informed the claimant that he would be seen within 4 to 5 hours
Said information was erroneous, as the claimant would have been seen by a triage nurse within 30 minutes of his arrival
Claimant left the hospital after 19 minutes because he was feeling worse and was unwilling to wait for up to four to five hours as informed by the receptionist
Later the same evening his condition deteriorated and he was taken to the hospital, where a scan confirmed serious head injuries and despite efforts of the hospital it was too late to prevent the development of permanent brain damage caused to the claimant
Expert evidence suggested that, if the deterioration in the claimant's condition had occurred at the hospital, he would have been treated promptly and made a near full recovery
Claimant brought proceedings against the local health trust ("defendant") that ran the hospital for damages in negligence, contending that the hospital's receptionist had been in breach of duty by failing to provide accurate information about waiting times
Held, that present case fell squarely within an established category of duty of care as it had long been established that such a duty was owed by those who provided and ran a casualty department to persons presenting themselves complaining of illness or injury and before they were treated or received into care in the hospital's wards
Duty was one to take reasonable care not to cause physical injury to the patient
In the present case, as soon as the claimant had attended the health trust's (defendant's) hospital seeking medical attention for the injury he had sustained, had provided the information requested by the receptionist and had been "booked in", he was accepted into the system and entered into a relationship with the health service of patient and health care provider
Claimant's complaint of physical injury rather than economic loss was a distinct and recognisable situation in which the law imposed a duty of care
Moreover, the scope of the duty to take reasonable care not to act in such a way as foreseeably to cause such a patient to sustain physical injury clearly extended to a duty to take reasonable care not to provide misleading information which may foreseeably cause physical injury, and therefore, it was not necessary to consider whether it was fair, just and reasonable to impose a duty of care
Duty of care was owed by the defendant health trust and it was not appropriate to distinguish, in such regard, between medical and non-medical staff
In the specific context of the present case, where misleading information was provided as to the time within which medical attention might be available, it was not appropriate to distinguish between medically qualified professionals and administrative staff in determining whether there was a duty of care
In the present case, questions as to the existence and scope of a duty of care owed by the defendant should not depend on whether the misleading information was provided by a person who was or was not medically qualified
Defendant had charged its non-medically qualified staff with the role of being the first point of contact with persons seeking medical assistance and, as a result, with the responsibility for providing accurate information as to its availability
While it was not the function of reception staff to give wider advice or information in general to patients, it was the duty of the defendant to take care not to provide misinformation to patients, and that duty was not avoided by the misinformation having been provided by reception staff as opposed to medical staff
Receptionist in an emergency department could not, of course, be expected to give medical advice or information but he or she could be expected to take reasonable care not to provide misleading advice as to the availability of medical assistance
Standard required was that of an averagely competent and well-informed person performing the function of a receptionist at a department providing emergency medical care
Responding to requests for information as to the usual system of operation of the emergency department was well within the area of responsibility of the receptionists
In the present case, the receptionists on duty at the material time were both aware that the standard procedure was that anyone complaining of a head injury would be seen by a triage nurse and they accepted that the usual practice was that such a patient would be told that they would be seen by a triage nurse within 30 minutes of arrival or as soon as possible
No reason had been suggested by the defendant as to why the claimant was not told of the standard procedure
Information provided to the claimant that he would have to wait for 4 to 5 hours was incomplete, misleading and negligent
Claimant's decision to leave after 19 minutes had been reasonably foreseeable and had been made, at least in part, on the basis of the misleading information provided by the receptionist, therefore his departure from the emergency department had not broken the chain of causation which had resulted in his injury
Appeal filed by claimant was allowed in circumstances and the case was remitted to the Trial Court for assessment of damages.
Circumstances in which not reasonable for a party to rely on representations made by the solicitor for the opposite party without checking their accuracy
Commercial lender granted a loan to a borrower in relation to its purchase of a property consisting of a number of commercial units, in return for which the borrower granted the lender security over the property
Subsequently the borrower entered into an agreement for the sale of one of the units
Borrower and the lender agreed that, on the sale, the unit would be released from its security in return for a partial repayment and that the security would remain in place in relation to the remaining units
Before such sale was due to be complete, the borrower's solicitor sent an e-mail to the lender wrongly stating that the whole loan was being repaid and requesting the execution of draft deeds of discharge of the security over all the units
Lender did not check the accuracy of the solicitor's email against the available record and discharged the entire security over the units
When the borrower subsequently went into liquidation, the lender raised an action against the borrower's solicitor and her firm, claiming that it had suffered loss and damage as a result of the negligent misrepresentation
Lender's claim was dismissed by the Trial judge on the basis that it was not reasonable for the lender to have relied on the solicitor's representations without checking their accuracy, and that it was reasonable for the solicitor not to have foreseen that it would do so
On appeal the Appellate Court allowed the lender's claim holding that the solicitor had assumed responsibility for the representations in her e-mail since, inter alia, they fell within her area of expertise and she knew that the lender was not represented by solicitors, and that, therefore, it was not necessary to consider whether the lender should have checked their accuracy
Held, that the concept of an assumption of responsibility by a representor to a representee was the foundation of liability in tort for negligent misrepresentation
Representor would not normally assume responsibility towards the representee unless it was reasonable for the representee to have relied on what the representor said and the representor should reasonably have foreseen that he would do so
Solicitor would not assume responsibility towards the opposite party unless it was reasonable for the latter to have relied on what the solicitor said, and unless the solicitor should reasonably have foreseen that the opposite party would actually rely on the statement
Said two ingredients of reasonable reliance and foreseeability were particularly relevant to a claim against a solicitor by the opposing party, because it was presumed to be inappropriate for a solicitor to assume such a responsibility towards the other side
Trial judge had found that the solicitor generally expected the lender to check her requests before complying with them, and therefore that she had not foreseen that they would rely on her assertions without checking their accuracy
In addition, any prudent bank, such as the lender, taking basic precautions would have checked the accuracy of such statements, and it was therefore not reasonable for the lender in the present case to have relied on the e-mail of the solicitor
Any commercial lender about to implement an agreement with its borrower referable to its security did not act reasonably if it proceeded upon no more than a description of the agreement's terms put forward by or on behalf of the borrower, since the terms of the agreement were wholly within the lender's knowledge
Lender knew the terms of the agreement and indeed, as in the present case, was likely to have evolved and proposed them
Accordingly, the Trial judge had been right to conclude that it had not been reasonable for the lender to rely on the representations of the borrower's solicitor without checking their accuracy and that it had been reasonable for the solicitor not to foresee that it would do so
Appeal was allowed accordingly and judgment of Trial judge was restored.
Such platinum sensitisation was not itself physically harmful but lead to allergic reaction involving physical symptoms on further exposure to platinum salts
Claimants' contracts of employment provided for regular checks to screen employees for development of platinum sensitisation, and for sensitised employees to be removed from work areas subject to exposure for possible redeployment and, if redeployment were not possible, for the termination of their employment on special conditions
After such checks, the claimants were found to have developed sensitivity to platinum salts and accordingly were redeployed or dismissed, or resigned
Claimants brought proceedings alleging, inter alia, negligence on the part of the defendant and seeking damages for loss of earnings as a result of losing relatively well paid employment in areas of the plants where it was known that there was an increased risk of exposure to platinum salts
Trial judge found that platinum sensitisation in itself was not a physical injury sufficient to give rise to a cause of action in tort
Court of Appeal upheld decision of Trial judge on the basis that platinum sensitisation did not give rise to detrimental physical effects in the course of ordinary life
Held, that negligence and breach of statutory duty were not actionable in and of themselves
Claimants had to establish that there had been damage in the form of actionable personal injury
Personal injury could be seen as a physical change which made the claimant appreciably worse off in respect of his health or capability, including an injury sustained to person's physical capacity of enjoying life, and as an impairment
Personal injury could also be hidden and symptomless
Absence of symptoms did not prevent a condition amounting to actionable personal injury
In the present case if an individual suffering from platinum sensitization was exposed again to platinum salts, his body was likely to produce allergic symptoms
When an individual became sensitised, such change to his body meant that he lost his capacity to work around platinum salts
Claimants' sensitisation carried the risk of an allergic reaction in the event of further exposure to platinum salts and they had to change their lives to avoid such exposure
Defendant acknowledged that if the claimants had developed a sensitivity to something encountered in everyday life, such as sunlight, they would have sustained actionable damage because they would not be able to carry on with their ordinary life
Claimants' ordinary lives involved doing jobs of a type which, by virtue of their sensitisation, they could no longer do
Such sensitization could not be distinguished from the person who developed a sensitivity to sunlight
Physiological changes to the claimants' bodies were undoubtedly harmful
Bodily capacity of claimants for work had been impaired and they were therefore significantly worse off
Once the sensitisation was identified as an actionable injury in its own right, the defendant's argument that the claimants were claiming only for their lost earnings and therefore for pure economic loss also fell away
Claimants had suffered bodily damage amounting to an actionable personal injury in both negligence and breach of statutory duty
Appeal was allowed accordingly.
Question as to whether duty of care was owed to passers-by, and whether police was immune from claims in negligence for injuries caused in course of performing core duties
Two police officers tried to arrest an accused in a busy shopping street when a struggle took place, during which the three men fell on top of the claimant, an old woman aged 76, who was passing by
Claimant suffered injuries as a result and sought damages against the defendant Chief Constable police for personal injuries on the grounds of negligence by the two police officers
Trial judge held that the police officers had acted negligently, since there was a foreseeable risk that passers-by such as the claimant would be injured and they had failed to have regard to the safety of members of the public in the vicinity, but dismissed the claim on the grounds that the police had immunity against claims in negligence
Court of Appeal dismissed the claimant's appeal and held that no duty of care was owed by the police and that, even if the officers had owed the claimant such a duty, on the facts it would not be fair, just and reasonable to impose a duty towards individual members of the public on the police engaged in their core function
Validity
[Per Lord Reed, JSC: There was no general rule that the police were not under any duty of care when discharging their functions of preventing and investigating crime, and they generally owed a duty of care when such a duty arose under ordinary principles of the law of negligence unless statute or the common law provided otherwise
Applying said principles, they might be under a duty of care to protect an individual from a danger of injury which the police themselves had created, but the police were not normally under a duty of care to protect individuals from a danger of injury which the police had not themselves created, including injury caused by the acts of third parties, in the absence of circumstances such as an assumption of responsibility
Discussion of policy considerations was not a routine aspect of deciding cases in the law of negligence, and was unnecessary when existing principles provided a clear basis for the decision, as in the present case
Facts of the present case were concerned with a positive act by the police and not an omission
Reasonably foreseeable risk of injury existed if an arrest of a suspect was attempted in a busy shopping street in a city center at a time when pedestrians, especially physically vulnerable ones such as the claimant, might be knocked into and injured in the course of the suspect attempting to escape; and this was sufficient to impose on the police officers a duty of care towards pedestrians, including the claimant, in the immediate vicinity when the arrest was attempted
Chain of events which had resulted in the claimant being injured had been initiated by the attempt to arrest the accused
Chain of causation had not been interrupted by the accused's voluntary decision to resist arrest, which had resulted in his knocking into the claimant
Such act of the suspect was the very act which the police were under a duty to guard against, and accordingly, the claimant had been injured as a result of being exposed to the very danger from which the police officers had a duty to protect her
Trial judge was entitled to find negligence on the part of the police, which findings should be restored
Chief Constable police/defendant was liable to the claimant for damages to be assessed]
[Per Lord Mance, JSC agreeing with his own reasons: It would be unrealistic to suggest that, when recognizing and developing an established category of negligence the courts were not influenced by policy considerations
In recognizing the existence of any generalized duty in particular circumstances, courts were making policy choices, in which considerations such as proximity and fairness, justice and reasonableness must inhere
It was not possible to state absolutely that policy considerations may not shape police liability where the conduct of the police may be analysed as positive, rather than simply as involving some form of omission
Courts should now recognise the direct physical interface between the police and the public, in the course of an arrest placing an innocent passer-by at risk, as falling within a now established area of general police liability for positive negligent conduct which foreseeably and directly inflicted physical injury
Present case concerned a positive act, not an omission
Finding of the Trial judge on negligence should be restored]
[Per Lord Hughes, JSC agreeing with his own reasons: Whilst there remains a duty of care imposed on police officers not by positive action to occasion physical harm or damage to property which ought reasonably to be avoided, there was no duty of care towards victims, witnesses or suspects in the manner of the investigation of offences or the prevention of crime
No duty of care existed to protect individuals from harm caused by the criminal acts of third parties, however, where action was brought on the basis of physical harm done by the positive acts of the police, it would succeed if, but only if, negligence was proved
Present case was one of positive act, namely arresting the accused, which directly caused physical harm to the claimant
It mattered not that the accused was the first to be in physical contact with the claimant given that the collision with her was by him plus two of the policemen
Finding of negligence by the Trial judge had to be restored and case remitted to the court of trial for assessment of damages].
Question as to whether illegal conduct of plaintiff/victim could sever any proximity between the parties or negate a prima facie duty of care
Generally speaking illegal or immoral conduct by the plaintiff did not preclude the existence of a duty of care
If the mere fact of illegal behaviour could eliminate a duty, this would effectively immunize negligent defendants from the consequences of their actions, and seriously injured victims would be entirely denied recovery, even when the defendant bore most of the fault
Illegality could however operate as a defence to a tort action in limited circumstances when it was necessary to preserve the integrity of the legal system.
Questions as to whether a commercial garage business owed duty of care to injured passenger; whether risk of personal injury was reasonably foreseeable, and whether the business had positive duty to guard against risk of theft by minors
[Per Karakatsanis, J; Majority view: To establish a duty of care, there must be a relationship of proximity in which the failure to take reasonable care might foreseeably cause loss or harm to the plaintiff
Once foreseeability and proximity were made out, a prima facie duty of care was established
Whether or not something was "reasonably foreseeable" was an objective test
Question was properly focused on whether foreseeability was present prior to the incident occurring and not with the aid of hindsight
In the present case, it was not enough to determine simply whether the theft of the vehicle was reasonably foreseeable
Proper question to be asked was whether the type of harm suffered i.e. personal injury was reasonably foreseeable to someone in the position of the garage owner when considering the security of the vehicles stored at the garage
Evidence could establish that the garage owner ought to have known of the risk of theft, however, physical injury was only foreseeable when there was something in the facts to suggest that there was not only a risk of theft, but a risk that the stolen vehicle might be operated in a dangerous manner
To find a duty of care, there must be some circumstance or evidence to suggest that a person in the position of the garage owner ought to have reasonably foreseen the risk of injury that the stolen vehicle could be operated unsafely
Risk of theft in general did not automatically include the risk of theft by minors
Some evidentiary basis was required before a court could conclude that the risk of theft included the risk of theft by minors
In the present case, there was insufficient evidence to suggest that minors would frequent the premises at night, or be involved in joyriding or theft
Aside from evidence that could establish a risk of theft in general, there was nothing else in the present case to connect the risk of theft of the car to the risk of someone being physically injured
Evidence did not provide specific circumstances to make it reasonably foreseeable that the stolen car might be driven in a way that would cause personal injury
Burden of establishing a prima facie duty of care owed by the garage owner had not been met, and reasonable foreseeability could not be established on basis of the record
Further a commercial garage, did not have a positive duty to guard against the risk of theft by minors
Fact that the victim was a minor did not automatically create an obligation to act
[Per Brown, J; Minority view: Reasonable foreseeability inquiry was objective (that is, into what reasonably ought to have been foreseen), and it must be undertaken from the standpoint of a reasonable person
Whether, therefore, the defendant actually foresaw the risk which ultimately manifested in injury to the plaintiff was not determinative
Reasonable foreseeability represented a low threshold and was usually quite easy to overcome
Plaintiff must merely provide evidence to persuade the court that the risk of the type of damage that occurred was reasonably foreseeable to the class of plaintiff that was damaged
In the present case, both the trial judge and the Court of Appeal held that it was reasonably foreseeable that an individual such as the victim could suffer physical injury as a consequence of the garage owner's negligence in the locking, securing and storing of vehicles
Minors were no less likely to steal a car than any other individual
In order to establish a duty of care, however, the victim was not required to show that the characteristics of the particular thief who stole the vehicle or the way in which the injury occurred were foreseeable
Imposition of a duty of care was conditioned in the present case only upon the victim showing that physical injury to him was reasonably foreseeable under any circumstances flowing from the garage owner's negligence
Trial judge was open to conclude that the garage owner's negligence in leaving unattended vehicles unlocked with keys inside overnight could have led to reasonably foreseeable physical injury
Trial judge's finding of reasonably foreseeable physical injury was sufficient to bring the circumstances of the present case within a category of relationships which had already been found to support a duty of care
As a matter of law, proximity was thereby established
Trial judge's finding that the garage owner owed a duty of care to the victim should be upheld and the appeal should be dismissed].
Question as to whether auditor breached his duty of care and therefore was liable for company's losses, and, if yes, then what would be the quantum of damages
[Per Gascon and Brown JJ (Majority view)] Duty of care was established where "proximity" between parties and "reasonably foreseeability of injury" were established
In the present case, while the Directors were engaged in financial manipulation the auditor issued a press release and a comfort letter for the purpose of soliciting investment for the company, and also carried out the audit
First requirement of "proximity" between the parties was thus established
As for the second requirement of "reasonably foreseeability of injury" auditor's negligence in relation to the press release and the comfort letter resulted in injuries that were not reasonably foreseeable
Auditor's services in such regard were engaged for the purpose of soliciting investment, not management oversight
As company's losses did not flow from a failure to solicit investment, company could not be allowed to recover for the increase in its liquidation deficit
However, recovery for the increase in company's liquidation deficit which followed or resulted from the audit should be allowed
Increase in company's liquidation deficit fell within the duty of care owed by the auditor to the company in relation to the preparation of a statutory audit, the express purpose of which was to assist the company in management oversight
Auditor owed the company duty of care, which it breached
Remoteness of loss was not a bar to the company's recovery
Auditor could not rely on either the defence of illegality or of contributory fault, because the fraudulent acts of company's Directors could not be attributed to the corporation
[Per McLachlin C.J (Minority view)]: Scope of auditor's duty of care was defined solely by the purposes for which the audit statements were prepared
Auditor's wrongful act did not deprive the company of the ability to attract investment capital, and it did not prevent the company from detecting misfeasance in the company's management
Company did not prove that auditor's wrongdoing prevented its shareholders from exercising supervision in a manner that would have ended the company's loss-creating activities at an earlier date
Loss at issue had not been shown to fall within the scope of auditor's duty of care
Policy considerations of 'unfair allocation of loss' and 'indeterminacy' would also preclude imposing liability on the auditor.
General test/framework to be examined by court in cases of pure economic loss arising from an auditor's negligent misrepresentation or performance of a service comprised of two stages; whether a prima facie duty of care existed between the parties, and if so, whether there were any residual policy considerations that may negate the imposition of a duty of care
Principles stated.
Law of negligence protected a person's interest in their own physical and psychiatric integrity, an important feature of which was their autonomy, their freedom to decide what shall and shall not be done with their body
Any particular medical procedure could not be considered in isolation from its alternatives
Most decisions about medical care were not simple yes/no answers
Choices were to be made, arguments for and against each of the options were to be considered, and sufficient information must be given (to the patient) so that this could be done
Pregnancy was a particularly powerful illustration for such purposes
Doctors did not necessarily have to volunteer the pros and cons of each option in every case, but they clearly should do so in any case where either the mother or the child was at heightened risk from a vaginal delivery
One should not only be concerned about risks to the baby, but equally, if not more, concerned about risks to the mother, which included the risks associated with giving birth, as well as any after-effects
Any patient was entitled to take into account her own values, her own assessment of the comparative merits of choices available to her for birth, whatever medical opinion may say, alongside the medical evaluation of the risks to herself and her baby
Medical profession must respect the patient's choice, unless she lacked the legal capacity to decide
Similarly a patient could not force her doctor to offer treatment which he or she considered futile or inappropriate, but the patient was at least entitled to the information which would enable her to take a proper part in such decision.
Generally understood paradigm of the doctor-patient relationship had ceased to reflect the reality and complexity of the way in which healthcare services were provided (in present times), or the way in which the providers and recipients of such services viewed their relationship
Patients were now widely regarded as persons holding rights, rather than as the passive recipients of the care of the medical profession
Patients were also widely treated as consumers exercising choices
Increasingly it had become far easier, and far more common, for members of the public to obtain information about symptoms, investigations, treatment options, risks and side-effects via such media as the internet (where, although the information available was of variable quality, reliable sources of information could readily be found), patient support groups, and leaflets issued by healthcare institutions
Labelling of pharmaceutical products and the provision of information sheets was of particular significance because it was required by laws premised on the ability of the citizen to comprehend the information provided, therefore, it would be a mistake to view patients as uninformed, incapable of understanding medical matters, or wholly dependent upon a flow of information from doctors
Idea that patients were medically uninformed and incapable of understanding medical matters was always a questionable generalization
Social and legal developments and changes point away from a model of the relationship between the doctor and the patient based upon medical paternalism, and the patient being entirely dependent on information provided by the doctor
Such changes point towards an approach to the law which, treated patients so far as possible as adults who were capable of understanding that medical treatment was uncertain of success and may involve risks, accepting responsibility for the taking of risks affecting their own lives, and living with the consequences of their choices
Adult person of sound mind was entitled to decide which, if any, of the available forms of treatment to undergo, and his/her consent must be obtained before treatment interfering with his/her bodily integrity was undertaken
Doctor was therefore under a duty to take reasonable care to ensure that the patient was aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments
Test of materiality was whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it
Doctor was however entitled to withhold from the patient information as to a risk if he/she reasonably considered that its disclosure would be seriously detrimental to the patient's health, however such "therapeutic exception", could not provide the basis of the general rule and should not be abused
Doctor was also excused from conferring with the patient in circumstances of necessity, as for example where the patient required treatment urgently but was unconscious or was otherwise unable to make a decision
Patient/person could of course decide that he/she did not wish to be informed of risks of injury (just as a person may choose to ignore the information leaflet enclosed with his/her medicine); and a doctor was not obliged to discuss the risks inherent in treatment with a person who made it clear that he/she would prefer not to discuss the matter
Deciding whether a person was so disinclined may involve the doctor making a judgment; but it was not a judgment which was dependent on medical expertise
Assessment of whether a risk was material could not be reduced to percentages
Significance of a given risk was likely to reflect a variety of factors besides its magnitude: for example, the nature of the risk, the effect which its occurrence would have upon the life of the patient, the importance to the patient of the benefits sought to be achieved by the treatment, the alternatives available, and the risks involved in those alternatives
Assessment was therefore fact-sensitive, and sensitive also to the characteristics of the patient
Doctor's advisory role involved dialogue, the aim of which was to ensure that the patient understood the seriousness of his/her condition, and the anticipated benefits and risks of the proposed treatment and any reasonable alternatives, so that he/she was then in a position to make an informed decision
Such role would only be performed effectively by the doctor if the information provided was comprehensible
Doctor's duty was not therefore fulfilled by bombarding the patient with technical information which he/she could not reasonably be expected to grasp.
Question as to whether a doctor's omission to warn a patient of inherent risks of proposed treatment constituted a breach of the duty of care
Appellant-mother gave birth to a baby, who was born with severe disabilities due to complications during the delivery
Appellant's pregnancy was regarded as high risk as she suffered from diabetes, and women with diabetes were more likely to have large babies and there was a 9-10% risk of shoulder dystocia during vaginal delivery (the baby's shoulders being too wide to pass through the mother's pelvis)
Though such risk may be resolved by emergency procedures during labour, shoulder dystocia posed various health risks to the woman and baby
Appellant was not told by her doctor about the risk of shoulder dystocia during her delivery
Appellant sought damages on behalf of her baby for the injuries which he sustained during birth
Appellant attributed those injuries to negligence on the part of the medical board's doctor, who was responsible for appellant's care during her pregnancy and labour, and who also delivered the baby
Appellant's claim was that she ought to have been given advice about the risk of shoulder dystocia which would be involved in vaginal birth, and of the alternative possibility of delivery by elective caesarean section; that the doctor had negligently failed to perform a caesarean section in response to abnormalities indicated by certain tests performed on her
Doctor in her defence contended that despite the risk of shoulder dystocia, her practice was not to spend a lot of time, or indeed any time at all, discussing potential risks of shoulder dystocia, because, in her estimation, the risk of a grave problem for the baby resulting from shoulder dystocia was very small; that in her consideration if such condition was mentioned to expecting women, most women would rather have a caesarean section, which was not in the maternal interests
Courts below had held that in the present case, the doctor did not owe a duty of care to the appellant; that whether a doctor's omission to warn a patient of risks of treatment was a breach of her duty of care was normally to be determined by the application of the "Bolam test" (Bolam v Frierm Hospital Management Committee [1957] i.e., whether the omission was accepted as proper by a responsible body of medical opinion, which could not be rejected as irrational; that in the present case, the Bolam test was not met; that the risk of shoulder dystocia, though significant, did not in itself require a warning since in most cases shoulder dystocia was dealt with by "simple procedures" and the chance of a severe injury to the baby was "tiny", and that if a patient asked about specific risks, the doctor must answer, but in the present case the appellant did not ask such specific questions
Validity
Under the law of negligence, a doctor was under a duty to take reasonable care to ensure that a patient was aware of material risks of injury that were inherent in a treatment
Such duty could also be understood as a duty of care to avoid exposing a person to a risk of injury which he/she would otherwise have avoided
Patient was entitled to decide as to whether or not to incur such a risk
Adult person of sound mind was entitled to decide which, if any, of the available forms of treatment to undergo, and his/her consent must be obtained before treatment interfering with his/her bodily integrity was undertaken
Doctor was therefore under a duty to take reasonable care to ensure that the patient was aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments
Test of materiality was whether, in the circumstances of the particular case, a reasonable person in the patient's position would be likely to attach significance to the risk, or the doctor was or should have been reasonably aware that the particular patient would be likely to attach significance to it
Doctor was however entitled to withhold from the patient information as to a risk if he/she reasonably considered that its disclosure would be seriously detrimental to the patient's health, but such "therapeutic exception", could not provide the basis of the general rule and should not be abused
What risks of injury were involved in an operation was a matter falling within the expertise of members of the medical profession, but it was a non sequitur to conclude that the question whether a risk of injury, or the availability of an alternative form of treatment, ought to be discussed with the patient was also a matter of purely professional judgment
Doctor's advisory role could not be regarded as solely an exercise of medical skill without leaving out of account the patient's entitlement to decide on the risks to his/her health which he/she was willing to run (a decision which may be influenced by non-medical considerations)
Responsibility for determining the nature and extent of a person's rights rested with the courts, not with the medical professions
Extent to which a doctor may be inclined to discuss risks with a patient was not determined by medical learning or experience, the application of the Bolam test to such question was liable to result in the sanctioning of differences in practice which were attributable not to divergent schools of thought in medical science, but merely to divergent attitudes among doctors as to the degree of respect owed to their patients
Doctor must necessarily make a judgment as to how best to explain the risks to the patient, and providing an effective explanation may require skill, but the skill and judgment required were not of the kind with which the Bolam test was concerned
Undoubtedly, in the present case, it was incumbent on the doctor to advise the appellant of the risk of shoulder dystocia if she were to have her baby by vaginal delivery, and to discuss with her the alternative of delivery by caesarean section
Shoulder dystocia was a major obstetric emergency, requiring procedures which may be traumatic for the mother, and involving significant risks to her health
Risk of shoulder dystocia was substantial on the evidence in the present case, around 9-10%
Exercise of reasonable care undoubtedly required that such risk should have been disclosed
Risk of shoulder dystocia involved in an elective caesarean section (as compared to vaginal delivery), for the mother was extremely small and for the baby virtually non-existent
Doctor, in the present case, could not rely on the "therapeutic exception" to withhold information about the risk
Although it was the doctor's policy in the present case to withhold information about the risk of shoulder dystocia from her patients because they would otherwise request caesarean sections, the "therapeutic exception" was not intended to enable doctors to prevent their patients from taking an informed decision
Had the doctor advised the appellant of the risk of shoulder dystocia and discussed with her dispassionately the potential consequences, and the alternative of an elective caesarean section, appellant would probably have elected to deliver her baby by caesarean section, and undisputedly the baby would then have been born unharmed
Appeal was allowed accordingly.
Criteria/ situations which would give rise to a non-delegable duty of care enumerated.
Categories of cases in which a non-delegable duty of care arises with respect to independent contractors performing functions on behalf of the defendant provided.
Non-delegable duty of care owed by a school/education authority to its pupils with respect to independent contractors performing functions on behalf of the school/education authority
Scope
Personal injury
Pupil suffering injury during a swimming lesson, which was organised by the school through an independent contractor
School/Education authority owed a non-delegable duty of care to ensure that reasonable care was taken to secure the safety of pupils who were attending school-swimming lessons conducted through an independent contractor.
Important limitations existed on the range of matters for which a school or education authority assumed non-delegable duties
School or education authority were liable for the negligence of independent contractors only if and so far as the latter were performing functions which the school had assumed for itself a duty to perform, generally in school hours and on school premises (or at other times or places where the school may carry out its educational functions)
School or education authority, in the absence of their own negligence, for example in the selection of contractors, would not be liable for the negligence of independent contractors where on analysis their own duty was not to perform the relevant function but only to arrange for its performance
School or education authority would not be liable for the defaults of independent contractors providing extra-curricular activities outside school hours, such as school trips in the holidays; nor would they be liable for the negligence of those to whom no control over the child had been delegated, such as bus drivers or the theatres, zoos or museums to which children may be taken by school staff in school hours.
"Duty of care", Pakistan Law Portal, available at: https://paklawportal.com/words-terms-maxims/124944361
Precedents & Case Laws citing "Duty of care"
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