TOPIC 1 : DUTY

OF CARE
 OUTLINE
• Negligence
• Medical Negligence
• Neighbour’s Principle
• Duty of Care
• GP’s Duty - Emergency – Good Samaritan
• Duty to 3rd party
 MEDICAL LAW IN MALAYSIA

1. English Common Law

• Application based on provision of s3 Civil Law Act 1956
• Local law takes precedence over English law and it is only those part of the
English law which are suited to local circumstances that will be applied
2. Local judicial decision
• Incorporating existing English common law tort principles in deciding local
cases.
 DOCTOR –PATIENT RELATIONSHIP

• Legal action brought by patients against

doctors and healthcare providers for
damages to compensate for injury.
• Generally injury may arise out of the
following :
a. Advise wrongly provided – Disclosure of risk
b. Treatment - Injury arising out of treatment /
Not adequately treated.
c. Diagnosis – Misdiagnosis
 LITIGATION – PURPOSE

• Compensation • TYPES OF LITIGATION:

• To hold the wrongdoer •  Contract: breach of contract
(private hospital)
accountable.
•  Negligence
• To improve and maintain
•  Product liability : drug
standards of the
injuries- the thalidomide
profession. tragedy (1950’s)- defective
foetus- missing limbs.
 LIMITATION PERIOD- MALAYSIA

1. S 2 of Public Authorities Act 1948, any action against parties acting in the
execution of a statutory or public duty has to be commenced within 3 years of the
act, neglect or default complained of.
2. Patients treated privately have 6 years from the time the cause of action accrued
to bring actions against their doctors (s 6(1) of the Limitation Act 1953
NEGLIGENCE
Definition – Winfield
“ The breach of a legal duty to take care which
results in damage, undesired by the defendant,
to the Plaintiff.”
PRINCIPLES OF
NEGLIGENCE
1. Duty of care – Does
the Defendant fall
within the scope of
duty ?
2. Breach of duty –
Failure to meet the
standard of care?
3. Causation –
Damage suffered as
a result of the
breach ?
ESTABLISHING DUTY OF CARE

The duty of care concept has at least two

purposes:
1. To provide an overall framework for the
huge variety of situations in which
liability may arise. A number of
attempts have been made to expound
such a general test.
2. To provide limitation, setting the
boundaries within which one person
could be liable to another for the
consequences of careless behaviour.
 WHEN DOES DUTY OF CARE
ARISE ?
• Heaven v Pender
• Brett MR
“ Whenever one person is by circumstances placed in such a
position with regard to another that everyone of ordinary sense who
did not think would at once recognise that if he did not use ordinary
care and skill in his own conduct with regard to those
circumstances he would cause danger of injury to the person or
property of the other, a duty arises to use ordinary care and skill to
avoid such danger.”
DUTY of CARE PRINCIPLE - NEIGHBOUR PRINCIPLE

• Donoghue v Stevenson [1932] AC 562

Lord Atkin :
…. “ Who is my neighbour” receives a
restricted reply. You must take reasonable
care to avoid acts and omissions, which
you can reasonably foresee, would be
likely to injure your neighbour. Who then,
in law is my neighbour? The answer
seems to be – person who are closely and
directly affected by my act that I ought
reasonably to have them in contemplation
as being so affected when I am directing
my mind to acts or omissions which are
called in question.”
 WHO IS A NEIGHBOUR ?

The patient claiming against his doctor

usually has little difficulty in establishing that
the defendant doctor owes him a duty of
care since the patient is the doctor’s legal
neighbour.
 DUTY OF CARE TEST

Neighbour’s Caparo’s
Anne’s Test
Principle Test
 NEIGHBOUR’S TEST – CAPARO’s 3 stage test .

1. Reasonable foreseability ;
2. Proximity
3. Whether it is fair, just and reasonable
 REASONABLE FORESEABILITY
• Will not take care to avoid harm if cannot foresee it occurrence.
• Describes the limit to the “area” which extends around the defendant and
his conduct.
• The requirement of reasonable foreseeability of harm is a question of fact
and remains the basis for a determination of duty of care.
• The health professional-patient relationship is such that the health
professional would know the patient was likely to be affected by their
actions.
• It encompass not only that which the doctor foresaw but that which he ought to
have foreseen eg. Victim losing blood profusely in an accident. – what should
doctor do? What will he foresee if he omit to do the things that he should do??
 THE FORESEEABILITY TEST

• The concept of foreseeability is the foundation of the neighbour principle for

it is only when damage to the plaintiff is foreseeable that a duty of care
arises .
•  There must be a balance between the degree or magnitude of risks and the
required level of responsibility on the part of the defendant doctor , of what
should or should not be done by the defendant in the circumstances.
•  If damage/injury is not reasonably foreseeable the doctor is not required to
take steps to prevent injury, as one is only required to take precautionary
measures against probable damage or injury.
 PROXIMITY
• Foreseeability of harm alone is insufficient to establish duty of care - Eg.
Doctor saw a man running across a road full of cars, jumping into the river.
• Sufficient proximity between the doctor and patient.
• Relationship of the parties.
• Criteria to determine proximity;
a. Physical closeness – space and time
b. Circumstantial proximity – employer/employee relationship
c. Causal proximity – closes connection between the conduct and loss
suffered.
 WHETHER IT IS FAIR,
JUST AND REASONABLE
• There has to be limit to liability and no duty
will be imposed unless it is just in all the
circumstances.
• Associated with policy decisions.
 DOCTOR’S LEGAL NEIGHBOUR
– PATIENT – DUTY OF CARE
ESTABLISHED.
• At common law, a doctor is said to owe a duty of care to his patient
who is under his care, and this duty arises out of his relationship
with his patient
• Established in the R v Bateman [1925] 94 LJKB 791- a doctor
owes a patient duty of care especially when the doctor undertakes
the task of providing advice, diagnosis and/or treatment.
• An undertaking of care may be expressly made by the doctor or
implied by the law out of circumstances.
 DOCTOR’S LEGAL NEIGHBOUR
– PATIENT
• R v Bateman [1925] 94 LJKB 791

‘If a person holds himself our as possessing special skill and knowledge and he is
consulted, as possessing such skill and knowledge, by or on behalf of a patient,
he owes a duty to the patient to use due caution in undertaking the treatment and
the patient submits to his direction and treatment accordingly, he owes a duty to
the patient to use diligence, care, knowledge, skill and caution in administering the
treatment. No contractual relation is necessary, nor is it necessary that the service
be rendered for reward.’
Lord Hewart CJ
 DUTY ?
• To exercise reasonable care and skill in diagnosing,
advising and treating the patient. – Sidaway
• Experience ? - Wilsher
 DOCTOR’S LEGAL NEIGHBOUR
– PATIENT
• Duty of care arises from the relationship with the patient. – “Professional
relationship”
• The duty of arises when the doctor’s voluntary agrees to ‘care for ‘ or ‘treat’
the patient.- As soon as treatment begins
• Duty extends to all course of treatment whether seen by doctors or not.
1. Barnett v Chelsea and Kensington HMC – doctor owed a duty of care to
patient because there was a close and direct relationship even though
communication was through the nurse.
2. Malaysia – doctor owes a duty to the patient if he holds himself out as
possessing special skill and knowledge and is consulted.
DUTIES 1. Examples of treatment which may be considered negligent (depending
EXAMPLES on the circumstances of the case):
a) failing to diagnose a condition;
b) failing to provide the appropriate treatment for the condition;
c) failing to refer to a specialist;
d) delay in diagnosis;
e) failing to advise of risks associated with treatment;
f) failing to perform surgery with reasonable care and skill;
g) failing to report correctly on test results;
failing to provide post-operative care with reasonable care and skill.
2. One duty divided into separate components – duty to diagnose, the
duty to provide information etc.
 A SINGLE DUTY OR MULTIPLE DUTIES ?
ROGERS V WHITAKER

‘The law imposes on a medical practitioner a duty to exercise reasonable

care and skill in the provision of professional advice and treatment. That
duty is a single comprehensive duty covering all the ways in which a
doctor is called upon to exercise his skill and judgement, it extends to
the examination, diagnosis and treatment of the patient and the
provision of information in an appropriate case.’
Per Mason CJ, Brennan, Dawson, Toohey and Mchugh JJ
 DUTY – HOSPITAL
DOCTORS
• Under the care of the doctor in NHS hospital – the doctor has duty.
• Consultant ?
• Which hospital doctor comes under a duty of care prior to
admission ?
• Express or implied undertaking ?
• In Barnett v Chelsea and Kensington HMC – it was determined
that the doctor and nurse owed the deceased a duty of care
because there was close and direct relationship between them .
 DUTY - DOCTORS – PUBLIC HOSPITAL IN MALAYSIA

• Duty arises under Article 132 of the Federal Constitution – civil

service - Doctor – patient in government hospital.
DUTY- STATUTE -GPs

*
*Sch 6 of National Health Service (
General Medical Services
Contracts) Regulations 2004 – set
out the range of duties imposed
on doctor.
Guide to courts to determine the
scope and content of the doctor’s
duty at common law.
DUTY OF GPs
Does GP have a duty to treat a patient during
an emergency ?
DUTY - GPs PATIENTS - EMERGENCY

• Legal obligation ?
• No obligation to treat – R ( on the application of Burke)
v GMC [2004] EWHC 1879
• Undertaking of care – acceptance of the patient as a
patient.
• GPs required to treat in emergency – 2004 Regulations.
• Position in Malaysia is uncertain. - Reference – Medical
Act 1971, Medical Regulation 1974, Code of Professional
Conduct 2019, Good Medical Practice 2019
 DUTY TO EMERGENCY- GPs
PATIENTS

• Exceptions
1. If he works in casualty department or if his contract
provides that he shall provide services to those within
his district.** Peculiar to the UK
2. If he chooses to treat ( eg. In an accident)
3. Lowns v Woods– Medical practitioner liable for
negligent failure to attend and treat non- patient in an
emergency. – Based on facts.
 DUTY TO EMERGENCY- LOWNS
v WOODS

• Australian case Lowns v Woods [1996] Aust Torts Rep

63. 151 (CA)
• Liability of doctors for negligent failure to attend and treat
non- patients in emergency.
• Duty of care by doctor.
The patient , 11 years olds lived 300 meters from
the GP’s clinic. Had epileptic seizure. Dr. Lowns
failed to attend to him upon request.
 DUTY TO EMERGENCY-
LOWNS v WOODS
• Neither Patrick nor any members of his family
were Dr L ‘s patients
• No prior contact between them
• No circumstantial proximity based on doctor-
patient relationship
• Court held that duty of care existed
 DUTY TO EMERGENCY- GPs
PATIENTS - Lowns v Woods
• Legal obligations vs moral or
professional obligations.
• Not judicial decision – legislature
• Fair and reasonable in society –
Expected to share expertise for the
good of his community.
 DUTY TO EMERGENCY- GPs PATIENTS

• What is their duty ?

• Not to make the victim’s condition
worse ?
• Do something to improve or prevent
a deterioration of the victim’s
condition ?
• Preventing foreseeable injury ? –
Kent v Griffiths (No.2) [2000]
Lloyds’s Rep Med 109 (CA)
 DUTY TO EMERGENCY
PATIENTS- LOWNS v WOODS

• Application in Malaysia ?
• Proximity between parties.
• Any Yew Meng v Dr. Sashikanna Arunasalam & ors
[ 2011] 9 MJ 153 - The first defendant was under no
general duty to render assistance to her. The law did not
impose a general duty of care to be a Good Samaritan
unless a special relationship existed between the parties
DUTY TO
RESCUE
Are doctors requested to
assist strangers ? Is
there a duty to act? To
play “Good Samaritan”
Expectation of society ?
Hippocratic Oath ?
DUTY TO RESCUE

1. No common law obligation on

any individual (good Samaritan)
to render emergency aid (but
there are exceptions).
2. ‘Good Samaritan’ – refers to a
person who, in good faith and
without the expectation of a fee,
provides assistance or rescues
another who has been injured, is
at risk of being injured or
requires emergency assistance.
 DUTY TO RESCUE
‘The dictates of charity and of compassion do not constitute a duty of
care. The law casts no duty upon a man to go to the aid of another who
is in peril or distress, not caused by him. The call of common humanity
may lead him to rescue. This the law recognises, for it gives the rescuer
its protection when he answers the call. But it does not require that he
do so. There is no general duty to help a neighbour whose house is on
fire.’
Windeyer J in Hargrave v Goldman (1963) 110 CLR 40

Is there a duty to rescue ?

 DUTY TO THIRD PARTIES
• In certain situations, doctors may owe a duty to persons other than their
patient .
Example :
• Third party suffering from an identifiable psychiatric injury through witnessing
a trauma or its immediate aftermath
• Third party coming into contact with patients taking prescribed drugs with
certain side effects
• Third party is the unborn child
• Third party in danger from harm or infectious disease by coming into contact
with the patient
 THIRD PARTY -
PSYCHIATRIC INJURY –
DUTY

• Third party suffers an identifiable psychiatric

injury through witnessing a trauma or its
immediate aftermath caused by the doctor’s
negligence.
 INITIAL EXPANSION - PSYCHIATRIC ILLNESS
CAUSED BY THE DEFENDANT’S NEGLIGENCE

Two criteria for the imposition of liability :

a. The injury alleged must conform to judicial
attitudes of what constitutes nervous shock, a
recognised psychiatric disorder; 1
b. The person claiming to have suffered nervous
shock must fall into a category accepted by the
courts as being entitled to claim. 2
 SHOCK VICTIMS – ENTITLED TO CLAIM

Two groups :
a. Primary Victims – Victims who unwillingly
participated in the event causing shock.
b. Secondary Victims – Passive and
unwilling witnesses.
Primary Victims
Determined in
the case of
Alcock v Chief
Constable of Secondary
South Yorkshire. Victims
 SHOCK VICTIMS – ENTITLED TO CLAIM

In the case of Alcock v Chief Constable of South Yorkshire , the HL identified that for future the
classes of claimants who will not be successful and those will not :
Primary Victim - Present at the scene of the shocking events and either injured or at risk of
injury.
Secondary Victim – Present at the scene or its immediate aftermath and with a close tie of
love and affecting to the primary victim and having witnesses or heard the traumatic events
with their own unaided senses.
 PRIMARY VICTIMS
• Were present at the scene; 1
and
• May have suffered physical
2
injury or their own safety was
threatened.
• The physical injury if it did
occur , was foreseeable. 3

• The psychiatric injury does not

4
need to be established.
 PSYCHIATRIC INJURY –
PRIMARY VICTIM
• Page v Smith [1996] AC 155 HL –
McLoughlin/Alcock rule does not apply to primary
victims.
• Duty of care arises because its is reasonably
foreseeable that the claimant will suffer personal
injury whether or not it is also foreseeable that he
will suffer psychiatric injury.
PRIMARY
VICTIM Page v Smith [1996] 1 AC 155 HL
• The claimant had suffered from (Myalgic
Encephalopathy) over a period of time
and was in recovery when he was
involved in a minor car accident due to
the defendant's negligence.
• The claimant was not physically injured
in the collision, but the incident triggered
his ME and had become chronic and
permanent so that he was unable to
return to his job as a teacher.
• He was successful at his trial and
awarded £162,000 in damages.
 PRIMARY VICTIM
Page v Smith [1996] 1 AC 155 HL

• Held:

Provided some kind of personal injury was foreseeable it did not matter
whether the injury was physical or psychiatric. There was thus no need
to establish that psychiatric injury was foreseeable.
• Also, the fact that an ordinary person would not have suffered the injury
incurred by the claimant was irrelevant as the defendant must take his
victim as he finds him under the thin skull rule.
 PRIMARY VICTIM

Page v Smith [1996] 1 AC 155 HL

• Lord Lloyd explains the difference between primary and
secondary victims
“In claims by secondary victims the law insists on certain control
mechanism, in order as a matter of policy to limit the number of
potential victims. Thus, the defendant will not be liable unless 1
psychiatric injury is foreseeable in a person of normal fortitude.
These control mechanisms have no place where the Plaintiff is the
primary victim”
2
 PRIMARY VICTIM

• A psychiatric injury that follows a physical injury will rarely be

considered unforeseeable and therefore too remote a
consequence of the breach.
 PSYCHIATRIC
INJURY –
PRIMARY VICTIM
Tredget and Tredget v Bexley Health Authority
[1994] 5 Med LR 148
• Claims for nervous shock sustained by both
parents as a result of a traumatic and
frightening delivery of their fatally injured child,
following allegedly negligent failure to go for an
earlier Caesarean section and, as a result of
attending upon their son during his short life of
some two days.
• Obstetric case where a father is present and is
actively encouraging and supporting his
partner, a claim for psychiatric illness caused
by negligence in the birth could be brought.
• The father was involved in his wife’s care. -
Participant
 PSYCHIATRIC INJURY –
PRIMARY VICTIM
• Witnessing the ramifications of the
negligence in close quarters ?
• Does not render a relative a primary
victim.
• Palmer v Tees HA[1999] Lloyds ‘s Rep
Med 351 ( CA)
 PSYCHIATRIC INJURY- SECONDARY VICTIM

McLoughlin v O’Brian, Alcock v Chief Constable of South Yorkshire(HL)

• Requirements
1. Suffered psychiatric illness due to the shock of seeing or hearing a
horrifying event
2. Proximate in terms of time and space to the event or immediate
aftermath
3. Foreseeable
4. Sufficient degree of proximity – relationship between victim and Plaintiff.
 SECONDARY VICTIMS

•In the landmark case of McLoughlin v

O’Brian [1982] 2 AER HL, the HL set
down the criteria required to determine
liability for secondary victims.
 McLoughlin v O’ Brian [1982] 2 AER 298 HL
SECONDARY VICTIM • Husband and three children were in a serious car
accident after being struck by a lorrydriver. One
child died on impact.
• 2 hours later, the claimant, the mother saw her
family suffering ( at the hospital) before they had
been treated and cleaned up. As a result, she
suffered severe shock, organic depression and a
personality change.
• She brought an action against the defendant for
the psychiatric injury she suffered. The Court of
Appeal held that no duty of care was owed. She
appealed to the House of Lords.

Lord Wilberforce identified a three part test for

secondary victims that was approved in Alcock v
Chief Constable of South Yorkshire.[1992] AC 310
HL
 SECONDARY VICTIM

McLoughlin v O’ Brian [1982] 2 AER 298 HL

• Held:
• The appeal was allowed, and the claimant was entitled to recover
for the psychiatric injury received. The House of Lords extended
the class of persons who would be considered proximate to the
event to those who come within the immediate aftermath of the
event.
SECONDARY VICTIM
• Lord Wilberforce:
“Experience has shown that to insist on direct and immediate sight
or hearing would be impractical and unjust and that under what
may be called the " aftermath " doctrine, one who, from close
proximity comes very soon upon the scene, should not be
excluded…. and by way of reinforcement of " aftermath " cases, I
would accept, by analogy with " rescue " situations, that a person of
whom it could be said that one could expect nothing else than that
he or she would come immediately to the scene—normally a parent
or a spouse, could be regarded as being within the scope of
foresight and duty. Where there is not immediate presence, account
must be taken of the possibility of alterations in the circumstances,
for which the defendant should not be responsible. Subject only to
these qualifications, I think that a strict test of proximity by sight or
hearing should be applied by the courts."
 SECONDARY VICTIM
McLoughlin v O’ Brian [1982] 2 AER 298 HL
Factors to be considered - Aftermath Test
1. Is there close emotional relationship with the primary victim ? Spouse or
parent
2. There must be physical proximity to the accident in terms of time and
space. - Here the Plaintiff’s case was allowed.
3. The means by which the shock is caused must either be as a result of what
the Plaintiff sees, hears or alternatively if the Plaintiff comes upon the
immediate aftermath of the damage.
4. The defendant’s negligent act must result in a psychiatric condition that is
medically recognised.
SECONDARY
VICTIM
 SECONDARY VICTIMS

Alcock v Chief Constable of South Yorkshire [1992] 4 AER 907

• This case arose from the disaster that occurred at Hillsborough football
stadium in Sheffield in the FA cup semi-final match between Liverpool and
Nottingham Forest in 1989.
• South Yorkshire Police had been responsible for crowd control at the football
match and had been negligent in directing an excessively large number of
spectators to one end of the stadium which resulted in the fatal crush in
which 95 people were killed and over 400 were physically injured.
• The scenes were broadcast live on television and were also repeated on
news broadcasts. Sixteen claims were brought against the defendant for
nervous shock resulting in psychiatric injury
 SECONDARY VICTIMS

. Alcock v Chief Constable of South Yorkshire [1992] 4 AER 907

• At trial ten of the claims were successful.

• The defendant appealed against the findings in nine and the
unsuccessful claimants appealed.
• The Court of Appeal found for the defendants in all of the claims.
• Ten appeals were made to the House of Lords.
• These included claims made by brothers, sisters, parents, a
grand-parent and a fiancé.
• Two of the claimants had been at the ground but in a different
areas. Some had seen the events unfold on the television, some
had heard about the events in other ways.
• Some had identified bodies at the makeshift mortuary.
Insert Image SECONDARY VICTIMS
Alcock v Chief Constable of South Yorkshire [1992] 4 AER 907

• Held:
• The appeals were dismissed.
• Lord Oliver set out the distinction between primary and
secondary victims. A primary victim one involved immediately
or immediately as a participant and a secondary victim one 1
who is no more than a passive and unwilling witness of injury
to others. The claimants were all classed as secondary victims
since they were not in the physical zone of danger. 2
 SECONDARY VICTIMS

Alcock v Chief Constable of South Yorkshire [1992] 4 AER 907

• For secondary victims to succeed in a claim for psychiatric harm
they must meet the following criteria:
• 1. A close tie of love and affection to a primary victim
• 2. Witness the event with their own unaided senses
• 3. Proximity to the event or its immediate aftermath
• 4. The psychiatric injury must be caused by a shocking event
 SECONDARY VICTIMS

Alcock v Chief Constable of South Yorkshire [1992] 4 AER 907

• Lord Ackner:
“'Shock', in the context of this cause of action, involves the sudden
appreciation by sight or sound of a horrifying event, which violently
agitates the mind. It has yet to include psychiatric illness caused by
the accumulation over a period of time of more gradual assaults on
the nervous system."
CLOSE TIE OF LOVE AND AFFECTION
• Presume between
parent and child and
between spouses.
• Must be proved
between siblings
WITNESS THE EVENT
WITH OWN UNAIDED
SENSES

Must have seen it

happen.
Watching on
television is not
sufficient.
 PROXIMITY TO THE EVENT ITSELF OR IT
IMMEDIATE AFTERMATH
One event
only
• Must have been there physically.
• Going to see the relatives at the mortuary - is not considered
proximity to the event.
Taylorson v Shieldness Produce Ltd [1994] PIQR 329 CA.
• The Claimants who saw their son at hospital after an accident .
• Their psychiatric injury suffered , grew out of a whole sequence of
events extending over an appreciable period of time rather than
from one shocking event .
 PSYCHIATRIC INJURY MUST BE CAUSED BY A
SHOCKING EVENT

• Lord Ackner in Alcock v Chief Constable of South Yorkshire stated:

"'Shock", in the context of this cause of action, involves the sudden
appreciation by sight or sound of a horrifying event, which violently agitates the
mind. It has yet to include psychiatric illness caused by the accumulation over
a period of time of more gradual assaults on the nervous system."

• This excludes those who suffer psychiatric injury as a result of the long term
process of providing care for a loved one who has suffered severe injuries
due to the defendant's negligence:
 PSYCHIATRIC INJURY –SECONDARY
VICTIM - WITNESSING A TRAUMATIC
EVENT
• Sion v Hampstead Health Authority [1994] 5 Med LR 170
• Father suffered mental illness following the death of his son whom he
watched slip into a coma over a period of 14 days after a road
accident.
S
• CA rejected claim as there was no nervous shock – no shock or H
O
horrifying event to trigger the event. – There was continuous C
exposure. K

** Sion important – nervous shock

could arise out of medical
negligence.
 PSYCHIATRIC INJURY –SECONDARY
VICTIM - WITNESSING A TRAUMATIC
EVENT
• Claim from long- term care ?
• North Glamorgan NHS Trust v Walters [2003] EWCA Civ 1792
(CA)
• 10-month boy – admitted for hepatitis A but failed to be correctly
diagnosed with acute hepatitis.
• Baby had fits.
• 36 hours after his fit, died in mother arms.
• Mother claimed pathological grief reaction.
 PSYCHIATRIC INJURY –SECONDARY
VICTIM - WITNESSING A TRAUMATIC
EVENT

North Glamorgan NHS Trust v Walters [2003] EWCA

Civ 1792 (CA)
• Fell within McLoughlin/Alcock rules
• “36 hour” – considered 1 event
• Claimant’s appreciation that the event “sudden” and not
an accumulation of gradual assaults on her mind.
 PSYCHIATRIC INJURY –
SECONDARY VICTIM -
WITNESSING A TRAUMATIC
EVENT
Galli – Atkinson v Seghal – Walters [2003] EWCA Civ 697
• The Claimant’s daughter was injured in a road traffic accident and died as a
result of her injuries.
• Because the daughter was late home, the mother went out to look for her and
came across an area that the Police had cordoned off.
• Later that evening she visited the Mortuary and on confirmation from the father
that the body was of the daughter, she collapsed sobbing and suffered an
extreme reaction.
• She had seen her daughter’s disfigured face and head.
 PSYCHIATRIC INJURY –
SECONDARY VICTIM -
WITNESSING A TRAUMATIC
EVENT
• CA in Galli – Atkinson v Seghal – Walters [2003]
EWCA Civ 697 is illustration of the proposition that
both an event and its immediate aftermath , can be
made up of ‘ a number of components’ all of which
can be ‘taken together as providing the triggers, if
that is the right description, for the shock which
produced the psychiatric illness.” – Following the
North Glamorgan NHS Trust v Walters .
 PSYCHIATRIC INJURY –SECONDARY
VICTIM - WITNESSING A TRAUMATIC
EVENT

Kralj v McGrath [1986] 1AER 54

• Birth of twins.
• Obstetrician – manual manipulation of twin in transverse
position – Severely disabled.
• Mother did not see twin after birth but two days later in
incubator and watched him every day until he passed away.
• The mother suffered pathological grief after her child died at
birth.
 PSYCHIATRIC INJURY –
SECONDARY VICTIM -
WITNESSING A TRAUMATIC
EVENT

Kralj v McGrath [1986] 1AER 54

• The mother was entitled to compensation from the shock of
being told what had happened to her baby and seeing him
during her visits.
 PSYCHIATRIC INJURY –
SECONDARY VICTIM- WITNESS
IMMEDIATE AFTERMATH
• Identifying a dead body ? – Immediate aftermath ?
Taylor v Somerset HA (1993)16 BMLR 63
• Suffered nervous shock (ie psychiatric illness) as a result of what she had
heard and seen at the hospital.
• It was held that there was no claim for psychiatric injury arising from
being told that husband died . Visit to mortuary did not fall within
‘immediate aftermath’ requirement.
***There was no immediate aftermath. Husband’s body bore no sign of
violent injury. Husband’s death caused by negligence of the defendant’s in
treating him the months prior.
 DUTY TO THIRD PARTY

• A doctor may not only owe a duty of

care to patients/clients but also
third parties.
• Who are the third parties?
• Duty – Caparo’s 3 stage test
• Analyze the relationship of the third
party to the patient/client.
 DOCTOR’S DUTY TO THIRD
PARTY – OTHERS
• Duty can encompass the rights of others to bring an action against
a doctor.
• The doctor’s duty extends beyond his responsibilities in his clinical
treatment – Providing other professional service – Conducting
health examination and reports for employers, prospective
employers, insurance companies and for the purpose of legal
proceedings.
DOCTOR’S DUTY TO
OTHER – INSURERS
AND EMPLOYERS
 DOCTOR’S DUTY TO OTHER –
INSURERS AND EMPLOYERS

Roy v Croydon Health Authority [1997]

PIQR P444 (CA)
Defendant required the claimant to undergo
a medical examination as a prospective
employee.
The Defendant’s radiologist failed to note
that an X-ray disclosed a serious pathology.
Defendant admitted to owing a duty of care.
High Court found in favour of the Plaintiff
and that a competent radiologist would have
informed the Plaintiff of the risk.
*** Cause physical injury
 DOCTOR’S DUTY TO
OTHER – INSURERS AND
EMPLOYERS
Baker v Kaye [1997] IRLR 219
• Doctor retained by a company for the
purpose of examining a potential
employee’s medical fitness owed him a
duty of care in carrying out his
examination and in interpreting the
results when reporting to the company.
• Economic loss – Financial
consequence of not securing
prospective employment.
• However, here the Court of Appeal
found that the doctor owed no duty of
care to the Plaintiff. - there is insufficient
proximity between Mrs Kapfunde and
the doctor. It was the employers to
whom the doctor owed a duty of care.
 DOCTOR’S DUTY TO OTHER –
INSURERS AND EMPLOYERS

Contract to insurance company Not a doctor- patient relationship

- Recommendation Not treating patient
DOCTOR’S DUTY TO OTHER –
INSURERS AND EMPLOYERS

Farraj v King’s Healthcare

NHS Trust [2009] EWCA
1203
A private laboratory
conducted test on patient’s
material on behalf of the NHS
owed a duty of care.
Why ? Knew that the results
would used to make
decisions about the patient’s
treatment.
 DOCTOR’S DUTY TO OTHER –
ADVICE GIVEN IN LEGAL
PROCEEDINGS

Two issues :
1. Party relying on the advice to
undertake activity or treatment
that may result in injury or loss.
2. Doctor acting in contemplation of
litigation , his advice covered
under expert witness immunity.
 DOCTOR’S DUTY TO OTHER –
ADVICE GIVEN IN LEGAL
PROCEEDINGS
Landall v Dennis Faulkner & Alsop [1994] 5 Med LR
268
Consultant orthopeadic surgeon had provided a medical
report in connection with legal proceedings brought by
the Plaintiff in respect to back injury from a road
accident.
The matter was settled, and the Plaintiff sought
treatment based on the report, however the treatment
did not provide relief.
The Plaintiff sued for negligence advise as to the
settlement.
Advice given by the surgeon was given for the purpose
of legal proceedings and not part of claimant’s treatment
– No liability
 DOCTOR’S DUTY TO
OTHER – ADVICE GIVEN
IN LEGAL PROCEEDINGS
Expert witness immunity –
Witness statements and
expert reports – legal
proceedings.
Previous decisions suggest
doctors have immunity.
However, the CA in Jones v
Kaney [2011] UKSC 13
found that immunity was not
justified. - Abolished
immunity for expert
witnesses.
 DOCTOR’S DUTY TO OTHER – ADVICE
GIVEN IN LEGAL PROCEEDINGS

• What about pre-litigation

acts ?
• Hughes v Lloyds Banks
plc [1998] PIQR P98 CA
• Here GP was not immune
from litigation on advise
given during negotiations.
DOCTOR’S DUTY TO
OTHER – ADVICE GIVEN
IN LEGAL PROCEEDINGS
N v Agrawal [1996]
Lloyds Rep Med 257
CA
CA struck out the claim
on the ground that a
witness was not under a
duty to any person to
give evidence.
DUTY OWED TO MEMBERS OF THE PUBLIC

• Duty to wider members of the public.

• Vasectomy – All women ?
Goodwill v British Pregnancy Advisory
Service [1996] 1 WLR 1397
• A doctor carrying out a vasectomy does
not owe a duty of care to all women with
whom the patient will have sexual relations
in the future.
• However, the doctor may owe a duty to the
spouse.
 DUTY OWED TO MEMBERS OF
THE PUBLIC

McDonald v Sydney South West

Area Health Service [2005] NSWSC
924
• Mother had sterilisation procedure.
• Procedure not properly performed.
• There was a duty owed to the
father as the relationship between
the mother and the father were so
close to give rise to a duty of care
between the doctor and father.
 DUTY OWED TO MEMBERS OF
THE PUBLIC – DANGEROUS
PATIENTS
• In the US, courts have recognised that psychiatrist owes a duty of care to
potential victims of a dangerous patient.
Tarasoff v Regents of University of California [1976] 551 P2d 334 ( Cal.
Supreme Court)
• “A general rule, one person owed no duty to control the conduct of another ,
nor warn those endangered by such conduct, … exception where the
defendant has special relationship to either the person who conduct needs to
be controlled or in a relationship to the foreseeable victim of the conduct.”

Duty to warn Duty to protect

DUTY OWED TO MEMBERS OF
THE PUBLIC – DANGEROUS
PATIENTS

The Canadian courts

recognised that
psychiatrist owed a duty
to family members of
psychotic patient in the
case of Ahmed v
Stefaniu [2006] 275
DLR
 DUTY OWED TO MEMBERS OF THE PUBLIC –
DANGEROUS PATIENTS

CA in Palmer v Tess Health Authority [1999] Lloyds’s Rep Med

351
• Applying the case of Hill v Chief Constable of West Yorkshire ,
the CA found that the Health authority did not owe a duty to the
public in general for the care of its patients.
• The CA applied Caparo’s 3 stage test.
**** ECHR held the CA striking out the case, restricted the
claimant’s right to access to court.
DUTY OWED TO MEMBERS OF
THE PUBLIC – DANGEROUS
PATIENTS

Palmer v Tess Health

Authority [1999] Lloyds’s
Rep Med 351
What if the victim was
identifiable ? - Might satisfy
the ‘ proximity’
However, the victim was a
member of the public. The
patient had been released a
year before he killed the
child.
DUTY OWED TO MEMBERS OF
THE PUBLIC – DANGEROUS
PATIENTS

*** ECHR decision in

Osman v United
Kingdom [1998] 29
EHRR – state
authorities have to take
positive action where
they knew of existence
of real or immediate risk
to the life of identifiable
individual.
DUTY OWED TO MEMBERS OF THE PUBLIC

• Can doctors be liable for an illegal act

perpetrated by his/her patient ?
Gray v Thames Trains Ltd [2009] UKHL 33
• The claimant suffered PTSD after railway
accident. He killed a man
• HL held that civil court could not award
damages to compensate a claimant for
injury which the criminal courts had
imposed for a criminal act which he was
responsible.
DUTY OWED TO MEMBERS
OF THE PUBLIC -
INFECTIOUS DISEASES
Are doctors liable for transmission of
infectious or contagious diseases by a patient
to a third party ?
DUTY OWED TO MEMBERS OF THE
PUBLIC - INFECTIOUS DISEASES
DeMarco v Lynch Homes –Chester Country [1990] 525 PA
558
• Blood technician who accidentally infected herself with
hepatitis was not advised to refrain from sexual relations.
• Her boyfriend contracted hepatitis.
• The technician sued and the Pennsylvania Supreme Court
held that the doctor owed the claimant a duty of care.
• Policy reasoning – Spread of communicable diseases.
• Doctor aware of danger.
DUTY OWED TO MEMBERS OF THE
PUBLIC - INFECTIOUS DISEASES
DUTY OWED TO MEMBERS OF
THE PUBLIC - INFECTIOUS
DISEASES

HIV infection ?
Reisner v Regents of the
University of California
[1995] 37 Cal Rptr 2d 518
Here the doctor’s duty was to
warn the patient / parents, who
were likely to warn the claimant
of the risks and thereby have
avoided the risk of transmission.
DUTY OWED TO MEMBERS OF THE
PUBLIC - INFECTIOUS DISEASES

• Australian courts have held that (in

exceptional circumstances) a doctor
might conceivably be liable to a third
party who has a relationship with the
patient and who is at foreseeable risk of
injury because of the patient's medical
condition.
• BT( as Administratix of the Estate of
the late AT) v OEI [1999] NSWSC 1082
 DUTY OWED TO MEMBERS OF THE
PUBLIC - INFECTIOUS DISEASES
• SC in CW v Cooper Health System [2006] 906 A 2d 440 (NJ
Supreme Court)
• Where a duty of care is owed by the doctor to a third party, the
duty is not to inform the third party of the risk of contracting the
disease per se, rather , to treat and to advise the immediate
patient in a competent manner, the fulfillment of which would have
amounted to a reasonable effort to protect the third party against
the risk.
 DUTY OWED TO MEMBERS OF THE
PUBLIC - INFECTIOUS DISEASES

• Generally speaking, a doctor does not owe a duty of

care to third parties.
• The courts have however recognised that in specific
situations a doctor might, with lawful excuse, disclose
his patient's health information to third parties or the
public at large. Sexually transmitted diseases might
arguably be one such exceptional category .
DUTY OWED TO MEMBERS OF
THE PUBLIC – GENETIC
CONDITIONS

A doctor owes duty of care to the children

of a patient whom he discovered had a
serious inheritable genetic condition.
Pate v Threlkel [1995] 661 So 2d 278 –
Florida Supreme Court.
Here a doctor was found to have a duty of
care to warn the patient of the danger of his
children inheriting thyroid cancer.
DUTY TO UNBORN CHILD

• Does a doctor owe a duty

to unborn child?
• Foetus – legal rights ?
• Can damage arise ?
• Depends on whether the
child is born alive.
DUTY TO UNBORN
CHILD
Burton v Islington
Health Authority
[1993] QB 204
A duty of care is owed
to a foetus despite the
fact that a foetus does
not acquire a legal
personality until birth.
 DUTY TO UNBORN
CHILD
X and Y v Pal and Others [1991] 23 NSWLR 26
• Mother had undiagnosed syphilis
• 1st born died a month after birth and 2nd child
was born with dysmorphic, mentally retarded
and suffering from syphilis.
• Sued the doctors for failure to diagnose her
syphilis.
• Here the court found that the child was entitled
to recover because it was foreseeable
consequence from the negligent act of the
doctor however unable to recover for disabilities
suffered. Unable to show causation.
 PHARMACIST
• Duty of care ?
• Horton v Evans [2006] EWHC
2808 (QB)
• A pharmacist dispensing prescribed
medication is required to consider
whether the medication/prescription
is suitable for the patient.
 SUMMARY
• Negligence
• Medical Negligence
• Neighbour’s Principle
• Duty of Care
• GP’s Duty - Emergency – Good Samaritan
• Duty to 3rd party