Professional negligence and the balance of probabilities were, at the time of this hearing, key ingredients to the maxim ‘novus actus interveniens’, which is used to determine whether the actions (or inactions) of a third party can be held liable for the cause of death, even when the primary act or event was of such magnitude that nothing could have reasonably prevented a fatality.
On New Year’s eve of 1965, three college watchmen were self-admitted to the casualty ward of St. Stephen’s Hospital, London, complaining of sickness and associated vomiting. Ironically, one of the men had been admitted only hours earlier, after suffering a blow to the skull by an unknown campus intruder.
Upon their arrival, the duty nurse listened to their complaints, before communicating them by telephone to the medical casualty officer, who was himself at home suffering with a sickness and associated vomiting.
Having heard their symptoms, the advice given was that they should return home and wait until feeling better, aside from the victim of the violent attack, who was asked to remain in the ward until his x-ray, which was due later next morning.
Angry that no immediate solutions were offered, the three men left and returned to their place of work. Shortly after arrival at the college, the injured watchman was forced to lay down, where he remained until the college doctor arrived at 1pm on New Year’s day; at which point, his condition had significantly deteriorated; and so, when arriving at hospital at 2pm he was pronounced dead.
Upon examination, it was revealed that for reasons unknown, the flask of tea shared by the men at 5am that morning, was contaminated with arsenic, which while not enough to kill all three, was present enough to prove fatal to one.
It was for this reason that his widow sought damages from the defendants, on grounds that the inability of the hospital staff to both diagnose and treat her late husband, was in fact the primary cause of his death, and that a liability for negligence was clear through an inherent duty of care.
At the trial, the criteria for negligence under a duty of care was first addressed through the words of Denning J in Cassidy v Ministry of Health, when he explained:
“In my opinion authorities who run a hospital, be they local authorities, government boards, or any other corporation, are in law under the self-same duty as the humblest doctor; whenever they accept a patient for treatment, they must use reasonable care and skill to cure him of his ailment…and if their staff are negligent in giving the treatment, they are just as liable for that negligence as is anyone else who employs others to do his duties for him.”Cassidy v Ministry of Health
While through p.183 of ‘Winfield on Torts’ 7th ed (1963) the court was reminded that:
“Where anyone is engaged in a transaction in which he holds himself out as having professional skill, the law expects him to show the average amount of competence associated with the proper discharge of the duties of that profession, trade or calling, and if he falls short of that and injures someone in consequence, he is not behaving reasonably.”
A principle that was furthered by the witness testimony of Dr. Stanley Lockett, who enthused:
“In my view, the duty of a casualty officer is in general to see and examine all patients who come to the casualty department of the hospital.”
However, upon close analysis of the timeline between the deceased’s complaints and the event of his death, it was confirmed that despite hypothetically following all the procedural requirements when treating patients, the hospital would not have been able to administer the named antidote for arsenic poisoning (B.A.L), or apply an intravenous drip any earlier than around 12pm New Year’s Day.
Therefore, despite the obvious anguish of the claimant and her anger over her husband’s untimely death, the defendants could not be held legally liable for negligence, despite failing under their requisite duty of care, while reminding the parties that:
“Without doubt the casualty officer should have seen and examined the deceased. His failure to do either cannot be described as an excusable error as has been submitted. It was negligence.”