B e f o r e :
LORD JUSTICE SOMERVELL
LORD JUSTICE DENNING and
LORD JUSTICE MORRIS.
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ROE
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MINISTRY OF HEALTH
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WOOLLEY
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MINISTRY OF HEALTH
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(Transcript of the Shorthand Notes of The Association of
Official Shorthandwriters, Ltd., Room 392, Royal Courts of Justice,
and 2, New Square, Lincoln's Inn, London, W.C.2.)
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MR R.E.A. ELWES, Q.C. and MR JOHN HOBSON
(instructed by Messrs Gibson & Weldon, agents for Messrs John Whittle,
Robinson & Bailey, Manchester) appeared on behalf of the Appellants (Plaintiffs).
MR M.L. BERRYMAN, Q.C., MR MARVEN EVERETT, Q.C. and,
MR J.S.L. MACASKIE (instructed by Messrs Berrymans)
appeared on behalf of the first Respondent (Defendant), the Ministry of Health.
MR H.B.H. HYLTON-FOSTER, Q.C. and MR J.R. CUMMING-BRUCE
(instructed by Messrs Hempsons) appeared on behalf
of the second Respondent (Defendant) Dr Graham.
MR NEVILLE M.G. FAULKS and MR P.M. SYRETT
(instructed by Messrs Swepstones) appeared on behalf of Ciba Laboratories.
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
LORD JUSTICE SOMERVELL: The two Plaintiffs in these consolidated actions were both anaesthetised by a spinal anaesthetic for minor operations on 13th October, 1947, at the Chesterfield and North Derbyshire Royal Hospital, now represented by the first Defendant the Ministry of Health. The results were tragic in that both men were and have since remained paralysed from the waist downwards. Each claims in negligence. The second Defendant is the anaesthetist, and one of the issues was whether the principle respondeat superior was applicable as between the hospital and him. The spinal anaesthetic used was nupercaine, manufactured and supplied by the third Defendant Ciba Laboratories. It was supplied in glass ampoules, one of which was used for each patient. The suggestion that the nupercaine in the two ampoules in question must have been defective or contaminated before delivery to the hospital was, after investigation, abandoned at the trial. The third Defendant was therefore not concerned in the substantive appeal.
The learned Judge found for the Defendants and the Plaintiffs appeal. He found that the damage had been caused by phenol which had percolated into the ampoules from a solution in which the two ampoules with others had been immersed. There was difference of opinion among the experts, but this finding was accepted by all Counsel before us as the explanation and the question therefore is whether this percolation was caused by the negligence of the Defendants or either of them.
The ampoules were about 5 inches high, 1 inch in diameter, narrowing towards the top to a neck about ¼ inch in diameter, and swelling out slightly above the neck and then tapering. The ampoule was opened by filing and then breaking at the neck. Each contained 20 cc of nupercaine. As delivered by the makers the outside and label were net sterilised. They were to be treated, as a notice on the box stated, as "frankly septic". The needle of the syringe could be inserted through the neck when the ampoule had been opened without coming in contact with the outside of the ampoule. The ampoule would be held by the sister and the syringe by the anaesthetist and there was a possibility of accidental contact.
It is plain that this possibility exercised a good many anaesthetists round about 1946. There was at the defendant hospital Dr Pooler, the senior anaesthetist, the second defendant, and a resident anaesthetist who was clearly of a leaser status and who is not concerned in this case. In 1947 Dr Pooler and Br Graham discussed the danger of sepsis as described above, and the importance of sterilising the ampoules. Dr Pooler in fact started for his cases the method which was used by Dr Graham at the date of the operations on the Plaintiffs. That was to immerse the ampoules in a 1 in 20 solution of phenol for twenty minutes and then in a 1 in 40 solution for twelve or mere hours.
On the learned Judge's finding a quantity of this phenol solution, sufficient to cause the paralysis, percolated through, a crack in each ampoule, sufficient nupercaine being left to anaesthetise each patient. There was no precise evidence as to the amount of phenol solution necessary to cause the injuries, but probably about one-fifth of the volume of the nupercaine. Each Plaintiff had an injection of 10 cc. If about one-fifth was phenol solution one would expect anaesthesia and injury.
Dr Graham appreciated the possibility of cracks and the great danger of phenol solution if injected into the spine. Be examined each ampoule for cracks before taking its contents or part of them into the syringe. The learned Judge accepted his evidence that he made such an examination carefully in these cases. "I did not believe for one moment that I could have missed a crack" he said. Was he negligent in so believing? The learned Judge deals with this matter in the following paragraph:
"It is new clear that phenol can find its way into an ampoule of nupercaine stored in a solution of phenol through cracks which are not detectable by the ordinary visual or tactile examination which takes place in an operating theatre — these cracks were referred to in the evidence as "invisible cracks" — or through molecular flaws in the glass. The attention of the profession was first drawn to this risk in this country by the publication of Professor Macintosh's book on Lumbar Puncture and Spinal Anaesthesia in 1951. In 1947 the general run of competent anaesthetists would not appreciate this risk. (Dr Mcintosh, Day 3, 18, 19, 42-E; Dr Organe, Day 8, 61; Dr Cope, Day 9, 25). Dr Graham certainly did not appreciate this as a risk. I accordingly find that by the standard of knowledge to be imputed to competent anaesthetists in 1947, Dr Graham was not negligent in failing to appreciate this risk and a fortiori the theatre staff were not negligent."
I accept this. Though Mr Elwes did not accept these findings, his main attack on Dr Graham was based on a different matter. There was evidence that in some hospitals where the immersion system was used the disinfecting liquid, whether a phenol solution or surgical spirit, was stained a deep tint with methylene blue or some ether dye. Professor Macintosh described the liquids he had seen as the colour of ink. This would make it easier, of course, to detect percolation. It was a method used by Ciba Laboratories and was known to analytical chemists. A certain amount of confusion arose from the fact that the two solutions of phenol in which the ampoules were immersed were coloured though not deeply. This was net done as a precaution against percolation. The 1 in 20 phenol solution was coloured a light blue and the 1 in 40 a light pink for general purposes of identification and not as a precaution against cracked ampoules. As a precaution for this latter purpose the colouring was, as Professor Mackintosh said, quite inadequate. Dr Graham gave certain answers which Might have meant he was relying on colour to detect cracks. If so, it should have been deeper. I agree with Mr Hylton-Foster's submission that, taking his evidence as a whole, he was not. If, of course, he had seen that the liquid in an ampoule was pink, he would at once have realised there had been substantial percolation. He was, however, relying on his visual inspection. Mr Elwes submitted that once the Plaintiff had shewn that this precaution was taken in some other hospitals the onus passed to Dr Graham or the hospital to explain why it was not adopted in the present ease. If the onus did so pass, I think it was discharged.
Mr Hylton-Foster conceded in the course of the trial and before us that if there had been deep tinting it would probably have disclosed any dangerous percolation. The learned Judge, who had many difficult matters to deal with, of which he has relieved us, did not, I think, fully appreciate this concession. However, the other reasons which he gives in my opinion justify his finding, with which I agree, that Dr Graham was not negligent. Dr Graham had never heard of deep tinting as a precaution. There had been a reference in American publications to colouring but the only paper traced on "immersion" in this country made no reference to deep tinting as an ingredient of the process. On one occasion Dr Graham found an ampoule which had been cracked or broken at the top. I do not think this assists either side. Mr Hylton-Foster submitted, I think with force, that if anything it confirmed Dr Graham's view that cracks would be visible. The actual method of immersion without deep tinting was introduced and used in the first instance by his senior, Dr Peeler. Dr Graham was entitled to place some reliance on that. It would obviously be wrong to infer negligence from the fact only that it was used in some other hospitals. I felt at one time that as Dr Pooler had started the system it would have been right that the hospital should have called him. They were, however, submitting that he was not their servant, and on I that basis it was I think reasonable for them not to call him. If it had been obvious or accepted that he was their "servant" or this purpose, it might well have been a matter for comment if he had not been called.
It is well to consider the nature of the allegation here made with regard to Dr Graham's interests as well as his duties. If a man driving a motor car is late for an urgent appointment he has at any rate a motive for taking a risk. What, however, is the suggested act of negligence hare? It is a failure to instruct a sister to put dye into a solution of phenol. It imposes no burden on the doctor except the speaking of a sentence. He or Dr Pooler would have every motive for putting this minor burden on the nursing staff if either had any idea that it might prevent injury to his patients. There is in my opinion on the evidence no justification for finding that Dr Graham was negligent in this matter.
The learned Judge found that the hospital was not liable in law for Dr Graham's acts of negligence, if any. I will set out the passage in which the learned Judge states the position of Dr Pooler and Dr Graham:
"In October, 1946, ha was with Dr Pooler, who had taken his diploma of anaesthesia some years earlier, appointed as a visiting anaesthetist to the hospital. He and Dr Pooler between them were under obligation to provide a regular anaesthetic service for the hospital, it being left to them to decide how to divide up the work. In fact, apart from emergencies, they worked at the hospital on alternate days. The hospital set aside a sum of money out of their funds derived from investments, contributions and donations for division among the whole of the medical and surgical staff including visiting and consulting surgeons as the participants might decide. Dr Graham participated in this fund but otherwise received no remuneration from the hospital. He was at all times allowed to continue his private anaesthetic practice."
The learned Judge referred to Gold v. Essex County Council (1942, 2 King's Bench, 293) and Cassidy v. Ministry of Health (1951, 2 King's Bench, 343). He assimilated Dr Pooler and Dr Graham to the "consulting physicians or surgeons" referred to by Lord Greene in Gold's case. The line suggested in that case and in Cassidy's case in the Judgments of Lord Justice Singleton and myself may mat be a very satisfactory one, but I would have regarded Dr Pooler and Dr Graham as part of the permanent staff and therefore in the same position as the orthopaedic surgeon in Cassidy's case. Like him they are, of course, qualified skilled men controlling as such their own methods. The positions of surgeons and others under the National Health Act will have to be decided when it arises. The position of hospitals under that Act may or may not be different from when they were voluntary or municipal hospitals.
Having regard to my conclusion with regard to Dr Graham, the matter is relevant only on the alleged application of res ipsa loquitur. The learned Judge said that principle could net apply to a case where the operation is, as ha held here, under the control of two persons not in law responsible for each ether. Our attention was drawn to some observations in Mahon v. Osborne (1939, 2 King's Bench, 14) which suggest this is too widely stated. As to the maxim itself, I agree, with respect, with what was said by Lord Radcliffe in Barkway v. South Wales-Transport (1950, 1 All England Reports, 392, at page 403):
"I find nothing more in that maxim than the rule of evidence, of which the essence is that an event which in the ordinary course of things is more likely than not to have been caused by negligence is by itself evidence of negligence."
In medical cases the fact that acme thing has gone wrong is very often not in itself any evidence of negligence. In surgical operations there are inevitably risks. On the ether hand, of course, in a case like this, there are points where the onus may shift, where a Judge or Jury might infer negligence, particularly if available witnesses who could throw light on what happened were not called. Having come to the conclusion that the hospital were responsible for Dr Graham, the Judge's reason (which is applicable in certain cases) for excluding the maxim has not operated on my mind.
I will now turn to the second main submission by Mr Elwes. Invisible cracks are none the less cracks and would not have been there if the ampoules had been carefully handled by the nursing staff. Therefore, there must have been negligent handling. And, of course, if the submission is to succeed, that negligent handling must have caused the injury. A number of experiments were conducted to try and crack ampoules in the way in which they must have been cracked on the findings. It was, of course, possible to break them if handled sufficiently roughly. It was found very difficult to produce an invisible or difficultly visible crack except by thermal methods. It would be a very speculative basis on which to find some unidentified nurse negligent. I think, however, making assumptions in the Appellants' favour the submission fails on causation. I will assume that a nurse knocked two ampoules together as she was placing them in the basin and this "rough" handling caused the "invisible" cracks. It would obviously be inadvertent and I will assume negligent. The duty as such not negligently to mishandle equipment would be a duty owed to the hospital. If an ampoule were dropped and broken there would clearly be no breach of any duty to a patient. In the case I am assuming, having knocked the ampoules the natural,' inference is that the nurse would look to see if they were cracked. This is what every normal person who has dropped or knocked something does. Is it broken? As the learned Judge has found there was no visible crack and the nursing staff had no reason to foresee invisible cracks, the nurse would reasonably assume no harm had been done and would let the ampoule go forward. The duty which the nursing staff owed to the Plaintiffs was to take reasonable care to see that cracked or faulty ampoules did not reach the operating theatre. That duty would not, in my opinion, be broken in the circumstances and on the assumption as set out above.
For these reasons I would dismiss the appeal.
LORD JUSTICE DENNING: No one can be unmoved by the disaster which has befallen these two unfortunate men. They were both working men before they went into the Chesterfield Hospital in October, 1947. Both were insured contributors to the hospital, paying a small sum each week, in return for which they were entitled to be admitted for treatment when they were ill. Each of them was operated on in the hospital for a minor trouble, one for something wrong with a cartilage in his knee, the other for a hydrocele. The operations were both on the same day, 13th October, 1947. Each of them was given a spinal anaesthetic by a visiting anaesthetist Dr Graham. Bach of them has in consequence been paralysed from the waist down.
The Judge has said that those facts do not speak for themselves, but I think they do. They certainly call for an explanation. Each of these men is entitled to say to the hospitals "Whilst I was in your hands something has been done to me which has wrecked my life. Please explain how it has come to pass." The reason why the Judge took a different view was because he thought that the hospital authorities could disclaim responsibility for the anaesthetist, Dr Graham, and, as it might be his fault and not theirs, the hospital authorities were not called upon to give an explanation. I think that reasoning is wrong. In the first place, I think that the hospital authorities are responsible for the whole of their staff, not only for the nurses and doctors but also for the anaesthetists and the surgeons. It does not matter whether they are permanent or temporary, resident or visiting, whole-time or part-time. The hospital authorities are responsible for all of them. The reason is because, even if they are not servants, they are the agents of the hospital to give the treatment. The only exception is the case of consultants or anaesthetists selected and employed by the patient himself. I went into the matter with some care in Cassidy's case and I adhere to all I there said. In the second place, I do not think that the hospital authorities and Dr Graham can both avoid giving an explanation by the simple expedient of each throwing responsibility en to the other. If an injured person shows that one or other or both of two persons injured him, but cannot say which of them it was, then he is not defeated altogether. He can call on each of them for an explanation (see Baker v. Market Harborough, 1953, 1 Weekly Law Reports, 1472). I approach this case, therefore, on the footing that the hospital authorities and Dr Graham were called on to give an explanation of what has happened. But I think they have done so. They have spared no trouble or expense to seek out the cause of the disaster. The greatest specialists in the land were called to give evidence. In the result, the Judge has found that what happened was this: In October, 1947, a spinal anaesthetic was in use at the hospital called nupercaine. It was a liquid supplied by the makers in closed glass ampoules. These were teat tubes sealed with glass. When the time came to use it, a nurse filed off the glass top, the anaesthetist inserted his needle and drew off the nupercaine, which he then injected into the spine of the patient.
It so happened that in this process there was some risk of the needle becoming infected. The reason was because the outside of the ampoule might become contaminated with a germ of some kind: and the needle might touch it as the anaesthetist was filling it. That this risk was a real one is shown by the fact that quite a number of cases became complicated by some infection or other.
In order to avoid this risk, the senior anaesthetist at the hospital. Dr Pooler, decided to keep the ampoules in a jar of disinfectant called phenol, which was a form of carbolic acid. This disinfectant was made in two strengths. The stronger was tinted light blue and the weaker was tinted pale red. This was so as to distinguish it from water. Following Dr Pooler, the junior anaesthetist, Dr Graham, thought that it was a good thing to disinfect the ampoules in this way and he adopted the same system.
By a great misfortune this new system of disinfecting had in it a danger of which Br Pooler and Dr Graham were quite unaware. The danger was this: the ampoules in the jar might become cracked; the cracks sight be so fine or so placed that they could not be detected by ordinary inspection, and the carbolic disinfectant would then seep through the cracks into the nupercaine, and no one would realise that it had taken place. Thus the anaesthetist, who thought ha was inserting pure nupercaine into the spine of the patient, was in fact inserting nupercaine mixed with carbolic acid. That is the very thing which happened in the case of these two men. Carbolic acid was inserted into their spines and corroded all the nerves which controlled the lower half of their bodies.
So that is the explanation of the disaster, and the question is: Were any of the staff negligent? I pause to say that once the accident is explained, no question of res ipsa loquitur arises. The only question is whether on the facts as now ascertained anyone was negligent. Mr Elwes said that the staff were negligent in two respects: (1) in not colouring the phenol with a deep dye; (2) in cracking the ampoules. I will take them in order: (1) The deep tinting. If the anaesthetists had foreseen that the ampoules might get cracked with cracks that could not be detected on inspection they would no doubt have dyad the phenol a deep blue; and this would have exposed the contamination. But I do not think their failure to foresee this was negligence. It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought always to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind but these benefits are attended by considerable risks. Every surgical operation is attended by risks. We cannot take the benefits without taking the risks. Every advance in technique is also attended by risks. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way. Something goes wrong and shows up a weakness, and then it is put right. That is just what happened here. Dr Graham sought to escape the danger of infection by disinfecting the ampoule. In escaping that known danger he unfortunately ran into another danger. He did not know that there could be undetectable cracks, but it was not negligent for him not to know it at that time. We must not look at the 1947 accident with 1954 spectacles. The Judge acquitted Dr Graham of negligence and we should uphold his decision.
(2) The cracks. In cracking the ampoules, there must, I fear, have been some carelessness by someone in the hospital. The ampoules were quite strong and the sisters said that they should not get cracked if proper care was used in handling them. They must have been jolted in some way by someone. This raises an interesting point of law. This carelessness was, in a sense, one of the causes of the disaster; but the person who jolted the ampoule cannot possibly have foreseen what dire con-sequences would follow. There were so many intervening opportunities of inspection that she might reasonably think that if the jolting caused a crack, it would be discovered long before any harm came of it. As Lord Justice Somervell has pointed out, she herself would probably examine the ampoule for a crack, and seeing none, would return it to the jar. The anesthetist himself did in fact examine it for cracks, and finding none used it. The trouble was that nobody realised that there might be a crack which you could not detect on ordinary examination. What then is the legal position?
It may be said that, by reason of the decision of this Court in re Polemis (1921, 3 King's Bench, 560), the hospital authorities are liable for all the consequences of the initial carelessness of the nurse, even though the consequences could not reasonably have been foreseen. But the decision in re Polemis is of very limited application. The reason is because there are two preliminary questions to be answered before it can come into play. The first question in every case is whether there was a duty of care owed to the Plaintiff; and the test of duty depends, without doubt, on what you should foresee. There is no duty of care owed to a person when you could not reasonably foresee that he might be injured by your conduct, see Bourhill and Young (1943, Appeal Cases, 92: Woods v. Duncan, 1946 Appeal Cases at page 426 per Lord Russell and at page 437 per Lord Porter). The second question is whether the neglect of duty was a "cause" of the injury in the proper sense of that term; and causation, as well as duty, often depends on what you should foresee. The chain of causation is broken when there is an intervening action which you could not reasonably be expected to foresee (see Woods v. Duncan 1946 Appeal Cases at page 421 per Lord Simon, at page 431 per Lord Macmillan, at page 442 per Lord Simonds). It is even broken when there is an intervening omission which you could not reasonably expect. For instance, in cases based on Donoghue v. Stevenson (1932 Appeal Cases, 562), a manufacturer is not liable if he might reasonably contemplate that an intermediate examination would probably be made. It is only when those two preliminary questions - duty and causation -are answered in favour of the Plaintiff that the third question, remoteness of damage, comes into play. Even then your ability to foresee the consequences may be vital. It is decisive where there is intervening conduct by other persons, (see Stansbie v. Troman, 1948, 2 King's Bench, 48; Lewis v. Carmarthenshire County Council, 1953, 1 Weekly Law Reports, 1439). It is only disregarded when the negligence is the immediate or precipitating cause of the damage, as in re Polemis (1921, 3 King's Bench, 560, and Thorogood v. Van den Bergh. 1951, 2 King's Bench, 537). In all these cases you will find that the three questions, duty, causation, and remoteness, run continually into one another. It seems to me that they are simply three different ways of looking at one and the same question which is this: Is the consequence fairly to be regarded as within the risk created by the negligence? If so, the negligent person is liable for it: but otherwise not. Even when the three questions are taken singly, they can only be determined by applying common sense to the facts of each particular case; see as to duty, King v. Phillips (1953, 1 Queen's Bench, 429, 437, 443) as to causation Stapley v. Gypsum Mines,(l953 Appeal Cases at page 681 per Lord Reid); and as to remoteness Liebosch v. Edison (1933 Appeal Cases at page 640 per Lord Wright), Instead of asking three questions, I should have thought in many cases it would be simpler and better to ask the one question: Is the consequence within the risk? and to answer it by applying ordinary plain common sense. That is the way in which Lord Justice Singleton and Lord Justice Hodson approached a difficult problem in Jones v. Livox Quarries (1952, 2 Queen's Bench at pages 613-4, 618), and I should like to approach this problem in the same way.
Asking myself, therefore, what was the risk involved in careless handling of the ampoules, I answer by saying that there was such a probability of intervening examination as to limit the risk. The only consequence which could reasonably be anticipated was the loss of a quantity of nupercaine, but not the paralysis of a patient. The hospital authorities are therefore not liable for it.
When you stop to think of what happened in this case, you will realise that it was a most extraordinary chapter of accidents. In some way the ampoules must have received a jolt, perhaps whilst a nurse was putting them into the jar or whilst a trolley was being moved along. The jolt cannot have been very severe. It was not severe enough to break any of the ampoules or even to crack them so far as anyone could see. But it was just enough to produce an invisible crack. The crack was of a kind which no one in any experiment has been able to reproduce again. It was too fine to be seen, but it was enough to let in sufficient phenol to corrode the nerves, whilst still leaving enough nupercaine to anaesthetise the patient. And this very exceptional crack occurred not in one ampoule only, but in two ampoules used on the self-same day in two successive operations; and none of the other ampoules were damaged at all. This has taught the doctors to be on their guard against invisible cracks. Never again, it is to be hoped, will such a thing happen. After this accident a leading text book was published in 1951 which contains the significant warning: "Never place ampoules of local anesthetic solution in alcohol or sprit. This common practice is probably responsible for some of the cases of permanent paralysis reported after spinal analgesia". If the hospitals were to continue the practice after this warning, they could not complain if they were found guilty of negligence. But the warning had not been given at the time of this accident. Indeed, it was the extraordinary accident to these two men which first disclosed the danger. Nowadays it would be negligence not to realise the danger, but it was not then.
One final word. These two men have suffered such terrible consequences that there is a natural feeling that they should be compensated. But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.
I agree with my Lord that these appeals should be dismissed.
LORD JUSTICE MORRIS: Surgical operations were successively performed on the two Appellants en the 13th October, 1947, at the Chesterfield and North Derbyshire Royal Hospital, which was then a voluntary hospital. In each case a spinal anaesthetic was administered by the same anaesthetist, nupercaine being injected into the theca by means of a puncture between lumbar vertebrae. In each case the nupercaine was aspirated from a glass ampoule, a separate ampoule being used (though the contents were not wholly used) for each patient. The glass ampoules containing the nupercaine, with others, had been kept in a glass jar which contained phenol in a 1 in 40 solution: they had previously been immersed for about twenty minutes in phenol in a 1 in 20 solution. In the period following the operations each Appellant developed a condition of spastic paraplegia. After a full and careful hearing the learned Judge negatived the suggestion that the condition to which the Appellants became reduced should be attributed to the nupercaine itself. The learned Judge came to the positive conclusion that the injuries were in fact caused by the injection of phenol with the nupercaine. The Respondents did not seek to assume the burden of assailing on appeal this finding of fact. No criticism of the operating surgeons was at any time made in the proceedings. The Minister of Health, was sued as the successor of the Trustees of the Hospital: the anesthetist, Dr Graham, was also sued: the manufacturers of the nuperecaine were later joined as Defendants but before the conclusion of the trial the case against them was dismissed with the concurrence of Counsel for the other parties.
The evidence adduced at the hearing showed that it was only in very rare cases that any untoward consequence followed upon spinal anaesthetic injection. In the nature of things the Appellants could not know, nor be expected to know, exactly what teak place in preparation for and during their operations. When they proved all that they were in a position to prove they then said "res ipsa loquitur." But this convenient and succinct formula possesses no magic qualities: or has it any added virtue, other than that of brevity, merely because it is expressed in latin. When used on behalf of a Plaintiff it is generally a short way of saying: "I submit that the facts and circumstances that I have proved establish a prima facie case of negligence against the Defendant." It must depend upon all the individual facts and the circumstances of the particular case whether this is so. There are certain happenings that do not normally occur in the absence of negligence and upon proof of these a Court will probably hold that there is a case to answer. (For a valuable discussion of this topic see an article by Dr Ellis Lewis: 1951, 11 Cambridge Law Journal, page 74).
Where there are two or more Defendants it may be that the facts proved by a Plaintiff are such as to establish a prima facie case against each Defendant.
Thus in Mahon v. Osborne (1939, 2 King's Bench, page 14) Lord Justice MacKinnon at page 38 said:
"Five persons were concerned in the operation on March 4th: Mr Osborne (the surgeon), the anaesthetist, Nurse Ashburner (as chief, or theatre nurse), Nurse Edmunds, and Nurse Callaghan. The Plaintiff, having no means of knowing what happened in the theatre, was in the position of being able to rely on the maxim res ipsa loquitur so as to say that some one or more of these five must have been negligent, since the swab was beyond question left in the abdomen of the deceased. In fact she sued Mr Osborne, the surgeon, and Miss Ashburner, the chief nurse, alleging that one or other of them or perhaps both must have been negligent. But it was for the Plaintiff to establish her case against either or both."
Difficulties may arise, however, if a Plaintiff only proves facts from which the inference is that there may have been negligence either in Defendant A. or in Defendant B. So in the present case it was said that unless Dr Graham was the servant or agent of the hospital the position at the close of the Plaintiffs' eases was that if a prima facie case of negligence was established it was merely a case that pointed uncertainly against either Dr Graham or the hospital. I do not think that it is necessary to consider whether, if Dr Graham was not the servant or agent of the hospital and if no evidence at all had been called on behalf of the Defendants, it could have been asserted that a prima facie case was made out both against Dr Graham and against the hospital, for I have come to the conclusion that Dr Graham was the servant or agent of the hospital.
In Gold v. Essex County Council (1942, 2 King's Bench, page 293), Lord Greene, Master of the Rolls, pointed out at page 301 that in cases of this nature the first task is to discover the extent of the obligation assumed by the person whom it is sought to be made liable. He added:
"Once this is discovered it follows of necessity that the person accused of a breach of the obligation cannot escape liability because he has employed another person, whether a servant or agent, to discharge it on his behalf, and this is equally true whether or not the obligation involves the use of skill."
In the present cases the learned Judge held that both Appellants were contributors for hospital and surgical treatment under a contributory scheme run by the hospital, so that they made some contributions which were received by the hospital for their treatment. The exact details of the scheme which the hospital had run were not before us and they might not have added materially to the facts proved. While the requisite standard of care does not vary according as to whether treatment is gratuitous or on payment the existence of arrangements entitling the Appellants to expect certain treatment might be a relevant factor when considering the extent of the obligation assumed by the hospital. In his Judgment in Gold v. Essex County Council Lord Greene analysed the position of the various persons in the "organisation" of the hospital to which the Plaintiff in that case resorted for free advice and treatment. He said (at page 302):
"The position of the nurses again....if the nature of their employment, both as to its terms and as to the work performed la what it usually is in such institutions I cannot myself see any sufficient ground for saying that the defendants do not undertake towards the patient the obligation of nursing him as distinct from the obligation of providing a skilful nurse."
This passage conveniently demonstrates a contrast. A hospital might assume the obligation of nursing: it might on the other hand merely assume the obligation of providing a skilful nurse. But the question as to what obligation a hospital has assumed becomes as it seems to me ultimately a question of fact to be decided having regard to the particular circumstances of each particular case: the ascertainment of the fact may require in some eases inference or deduction from proved or known facts. In the present case we are concerned only with the position of Dr Graham in 1947 in this voluntary hospital.
The general position in regard to nurses would appear to be reasonably uniform and clear. In the case cited above Lord Greene said (at page 302):
"Nursing it appears to me is just what the patient is entitled to expect from the institution and the relationship of the nurses to the institution supports the inference that they are engaged to nurse the patients. In the case of a nursing home conducted for profit, a patient would be surprised to be told that the home does not undertake to nurse him. In the case of a voluntary hospital with the usual nursing staff his just expectation would surely be the same. The idea that in the case of a voluntary hospital the only obligation which the hospital undertakes to perform by its nursing staff is not the essential work of nursing but only so-called administrative work appears to me, with all respect to these who have thought' otherwise, not merely unworkable in practice but contrary to the plain sense of the position."
On the principles so clearly enunciated the Court in that case held that the hospital had assumed the obligation of treating a patient who sought treatment by Grenz rays and of giving the treatment by the hand of a competent radiographer. That was the natural and reasonable inference to be drawn from the way in which those running the hospital conducted their affairs and from the nature of the engagement of the radiographer.
If a patient in 1947 entered a voluntary hospital for an operation it might be that if the operation was to be performed by a visiting surgeon the hospital would not undertake so far as concerned the actual surgery itself to do more than to make the necessary arrangements to secure the services of a skilled and competent surgeon. The facts and features of each particular case would require investigation. But a hospital might in any event have undertaken to provide all the necessary facilities and equipment for the operation and the obligation of nursing and also the obligation of anaesthetising a patient for his operation. The question in the present case is whether the hospital undertook these obligations. In my judgment they did. There can be no doubt that they undertook to nurse the Appellants and to provide the necessary facilities and equipment for the operations. I think they further undertook to anaesthetise the Appellants. The arrangements made between the hospital and Dr Pooler and Dr Graham together with the arrangements by which a resident anaesthetist was employed had the result that the hospital provided a constantly available anaesthetic service to cover all types of cases. It is true that Dr Pooler and Dr Graham could arrange between themselves as to when they would respectively be on duty at the hospital: and each was free to do private work. But these facts do not negative the view, to which all the circumstances point, that the hospital was assuming the obligation of anaesthetising the Appellants for their operations. I consider that the anaesthetists were members of the "organisation" of the hospital: they were members of the staff engaged by the hospital to do what the hospital itself was undertaking to do. The work which Dr Graham was employed by the hospital to do was work of a highly skilled and specialised nature but this fact does not avoid the application of the rule of "respondeat superior". If Dr Graham was negligent in doing his work I consider that the hospital would be just as responsible as were the Defendants in Gold v. Essex County Council for the negligence of the radiographer or as were the Defendants in Cassidy v. Ministry of Health (1951, 2 King's Bench, page 343). I have approached the present case, therefore, on the basis that the Respondents would be liable if the Appellants' injuries were caused by the negligence either of Dr Graham or by the negligence of someone on the staff who was concerned with the operation or the preparation for it. On this basis if negligence could be established against one or more of those for whom the hospital was responsible it would not matter if the Appellants could not point to the exact person or persons who had been negligent.
It was not suggested that Dr Graham was negligent in using nupercaine, nor that there was anything faulty in the manner of his injecting. But it was said that the evidence pointed to the fact that the quantity of phenol which must have found its way into the nupercaine had passed through cracks of dimensions which would not have eluded a careful examiner. This view depended in part upon an estimate as to the percentage of phenol admixture which would be damaging and in part upon evidence as to the results of experiments to ascertain the rate at which phenol might percolate through cracks. But it seems unlikely that Dr Graham in two successive operations would fail to detect cracks which could be observed or felt. The learned Judge having seen and heard Dr Graham, whose evidence he said was given "in a very careful and forthright manner", rejected the suggestion that Dr Graham had failed to detect cracks which could have been seen. I do not think that this finding can be disturbed and, accordingly, the Matter must be considered on the footing that phenol had found its way into the ampoules through cracks not ordinarily detectable. On this basis it is clear that if the phenol solution had been tinted, with some vivid colouring any escape of the solution into the ampoules would have been readily apparent. This was at all times frankly conceded by Mr Hylton-Foster. The question arises whether Br Graham was negligent in not arranging for the deep-tinting of the phenol solution. The phenol solution as used in the hospital was in fact coloured though not vividly. This colouring was part of the routine adopted in the hospital to denote and to identify phenol.
It was Dr Pooler who first introduced in the hospital the system of immersing the ampoules in phenol solution. Dr Graham considered the matter for some time before he followed the lead given him by his senior and more experienced colleague upon whose opinion he greatly relied. When Dr Graham adopted the new method he realised full well, as he unhesitatingly Admitted, that if a glass ampoule became cracked there could be resultant percolation of phenol solution which would be a "terribly serious danger." It was for that reason that he felt it necessary after changing over to the new method to examine carefully for cracks. But Dr Graham was most emphatic in his evidence that in 1947 he had no knowledge at all that there might be in an ampoule acme kind of a crack which was not visible but which yet permitted percolation. He firmly believed that there was no danger provided that there was no crack that could be seen on proper inspection: he never conceived the idea of a crack that he could not see. I read his evidence when taken in its entirety as showing that he was not relying upon seeing some discolouration as a warning that there had been percolation but that he was convinced that danger could only arise if there was a crack that could be seen and that such danger could be fully averted by careful inspection. It is now known that there could be cracks not ordinarily detectable. But care has to be exercised to ensure that conduct in 1947 is only judged in the light of knowledge which then was or ought reasonably to have been possessed. In this connection the then-existing state of medical literature must be had in mind. The question arises whether Dr Graham was negligent in not adopting some different technique. I cannot think that he was. I think that a consideration of the evidence in. the case negatives the view that Dr Graham was negligent and I see no reason to differ from the conclusions which were reached on this part of the case by the learned Judge. But it is further said that there must have been negligent mishandling of the ampoules on the part of some member or members of the staff of the hospital. On behalf of the Appellants it was urged that the ampoules must have arrived intact and in good order at the hospital and must have been carelessly handled at a later stage when they were being made ready and available for operative use. There was much evidence which supported the contention that ampoules could only have been damaged if they were mishandled. Even so, it is problematical as to when and where and under what circumstances these two ampoules became damaged. But as the case now stands an acceptance of the finding of fact of the learned Judge that Dr Graham carefully examined the ampoules used and that there were no cracks which would by such examination have been revealed, involves that the offending cracks were not detectable ones. If the view is correct that an anaesthetist in 1947 was not negligent in not knowing of the risk of seepage through what have been called "invisible cracks" it follows, I think, that members of the theatre staff could not be expected to know of any such risk. In his speech in Bolton v. Stone (1951 Appeal cases, page 850, at page 858) Lord Porter said:
"It is not enough that the event should be such as can reasonably be foreseen: the further result that injury is likely to follow must also be such as a reasonable man would contemplate before he can be convicted of actionable negligence."
If some member of the staff had in fact mishandled the ampoules in question then the position was either that damage was not seen after an actual inspection or that an inspection would have been unavailing: since no detectable damage to them was caused there was no reason to foresee that there was any risk in leaving such ampoules amongst those from which an anaesthetist would select and no reason to contemplate that any injury would be likely to follow. Though there must be abiding sympathy with the two Appellants in their grievous and distressing misfortunes, I consider that the Judgment of the learned Judge was correct.
LORD JUSTICE SOMERVELL: Do you ask for costs, Mr Berryman?
MR BERRYMAN: No, my Lord.
LORD JUSTICE SOMERVELL: Then the appeal will be dismissed, with no Order as to costs.
MR NEVILLE FAULKS. I was going to trouble your Lordships on the question of costs had the appeal succeeded, but the appeal not having succeeded I do not ask for costs.
MR ELWES: May I have leave to appeal to the House of Lords, my Lord?
LORD JUSTICE SOMERVELL: We have discussed this. The House of Lords do not like entertaining an appeal where there are concurrent findings of fact, and that would seem to cover this case. We do not have the last word. I have sometimes said before, and I hope it is acceptable to the House of Lords, that where there are concurrent findings, though there may be other grounds, I think it difficult to grant leave. I do not think we ought to grant leave.
MR ELWES: The only way in which I would submit it could be considered in another light is, apart from the concurrent findings the of fact, the progress of the decisions in the Court below and here would seem to be an interesting point of law as applying to this case. The learned Judge in the Court below entirely rejected the view that the first Defendants were responsible for both the anaesthetists and, for that reason, held that the Plaintiffs had to discharge the onus of showing negligence. That position no longer exists, as I. understand your Lordships' Judgments. I submit it would be worth considering, if your Lordships thought it right to give me leave, since as the first Defendants are entirely responsible for everything which is done the onus must rest upon them to explain their act in putting phenol into the spinal column. It is a heavy onus and, even if res ipsa loquitur does not carry me the whole way, there is the question of influence. I cannot say any more than that, but I am instructed to ask for leave.
LORD JUSTICE SOMERVELL: You are quite right in saying that it is a very important case, but for the reasons I gave we do not think it is a proper case in which to give leave.
