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Tort XVIII - Causation IV
In McKay v Essex Area Health Authority (1982) the plaintiffs, a mother and her child sued a doctor for not advising the mother to terminate her pregnancy. The mother had contracted rubella or German measles while she was pregnant and the chances were high that the child would be born with serious or severe disabilities but because the mother was not advised accordingly, she continued with the pregnancy. The court held that the doctor was not liable under the circumstances despite the fact that he’d not given the mother suitable medical advice.
In today’s dynamic and multi-faceted world, it is possible in many instances to determine whether a child will be born healthy or otherwise and it may be appropriate to place a duty on doctors to inform all prospective mothers of any risks involved with the pregnancy or educate the mothers as to the risks as soon as the facts become available. The decision to terminate the pregnancy or otherwise however should be left entirely in the hands of the mother.
The law must be practical and it has to take into account both the emotional and economic aspect of things or the E & E factor which is playing an increasingly greater role in the decisions we make today. The simple fact of the matter is that some mothers may just not be able to cope with raising a child with disabilities.
In most cases it takes its toll on both the mother and the child and this case in particularly paints a poignant picture because according to the facts both the child and the mother had decided that the pregnancy, given the facts as they were, should have been terminated. It goes to show how difficult it is to raise children with disabilities and the difficulty of growing up with a disability.
In Junior Books v Veitchi (1983) the plaintiffs entered into a contract with a company to refurbish their building and the company sub-contracted the flooring work to another company, the defendants, who specialized in flooring. The flooring subsequently proved to be defective and as a result the plaintiffs not only incurred expenditure to have the floor refitted but they also had to have machines moved and had to put up with all the other inconveniences that resulted from having the floor refitted. The plaintiffs sued.
The law in this area seems to be similar to that in contract see Dick Bentley Productions Ltd v Harold Smith (Motors) Ltd (1965), in that, when a company claims, professes or accepts the tag or label of being specialists then the chances are higher that they will be held liable for their negligent acts. The plaintiffs were successful.
The plaintiffs were allowed to recover for economic loss and the scope of foresight or the foreseeability factor or limb was widened or extended to allow the plaintiffs to claim.
It is reasonable to say that a specialist or someone who professes to have specialized knowledge in the field or area would be able to foresee the risk and likewise would be able to anticipate the damage that would ensue if that duty was breached or if that risk was to happen.
In Hotson v East Berkshire Health Authority (1987) the plaintiff fell off a tree and as a result he suffered from a fractured hip and was taken to a hospital but the hospital failed to treat the injury and the plaintiff was sent home instead. He continued to complain of severe pain and was taken back to the hospital 5 days later and the x-ray that followed revealed the extent of the injury as a result of which the plaintiff developed a permanent disability which might lead to further complications later. The plaintiff sued.
According to the facts, even if the plaintiff had been treated the first time he’d been taken to the hospital, there was only a 25% possibility that he would have been treated successfully. There was a 75% chance that he would still develop a disability and the prospects of future complications arising out of the disability was still a possibility.
In line with the decision in Barnett v Chelsea Hospital Management Committee (1969) the plaintiff’s claim failed. The doctor would only be liable if the plaintiff could have been treated successfully and because there was a 75% probability that the plaintiff would have still developed a disability even if he had been treated the first time around, the doctor was held to be not liable.
© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward