Roe v Minister of Health (1954)

Two men went into hospital for minor operations and came out paralysed from the waist down. Their claim failed — and the reasons are among the most quoted in the law of negligence. The Court of Appeal held that a defendant is judged by what a competent professional knew at the time, not by what was learnt afterwards: in Denning L.J.'s words, "We must not look at the 1947 accident with 1954 spectacles."

The case is also a leading authority on three other points: that a hospital is responsible for its anaesthetists as well as its nurses; how res ipsa loquitur works; and — the reason it is cited alongside Re Polemis and The Wagon Mound — Denning L.J.'s attempt to confine Re Polemis by treating duty, causation and remoteness as one question: "Is the consequence within the risk?"

On 13 October 1947 the two plaintiffs were given spinal anaesthetics for minor operations at the Chesterfield and North Derbyshire Royal Hospital, then a voluntary hospital, now represented by the Minister of Health. The anaesthetic, nupercaine, came in glass ampoules. It was administered by Dr Graham, a visiting anaesthetist. Both men were left permanently paralysed from the waist down.

To guard against infection from the outside of the ampoules, the senior anaesthetist, Dr Pooler, had introduced a practice, which Dr Graham adopted, of storing the ampoules in a solution of phenol (a form of carbolic acid). The phenol was tinted only lightly, for identification. The trial judge found that phenol had seeped into the two ampoules through cracks that could not be detected by ordinary visual or tactile examination, and had been injected with the nupercaine. Dr Graham had examined each ampoule for cracks and found none.

The trial judge found that the risk of such "invisible cracks" was first drawn to the profession's attention in 1951, and that in 1947 the general run of competent anaesthetists would not have appreciated it. He found for the defendants, holding also that the hospital was not responsible for Dr Graham. The claim against the manufacturers had been dropped at trial. The plaintiffs appealed.

1. Was Dr Graham negligent in failing to appreciate the risk of invisible cracks, or in not having the phenol deeply tinted so that seepage would show?
2. Was the hospital liable if some member of staff had carelessly jolted the ampoules and caused the cracks?
3. Was the hospital responsible in law for Dr Graham?
4. Did res ipsa loquitur help the plaintiffs?

The appeals were dismissed by all three judges, with no order as to costs. Leave to appeal to the House of Lords was refused.

No negligence judged by 1947 standards

Somervell L.J. accepted the trial judge's finding 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". On deep tinting, he noted that Dr Graham had never heard of it as a precaution, and that it "would obviously be wrong to infer negligence from the fact only that it was used in some other hospitals."

Denning L.J.: "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." Dr Graham "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." After a warning published in 1951, "Nowadays it would be negligence not to realise the danger, but it was not then."

Morris L.J.: "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."

Careless handling of the ampoules

Even assuming a nurse carelessly jolted the ampoules and caused the cracks, the hospital was not liable. Somervell L.J. held the argument failed on causation: the nurse would naturally look for a crack, see none, and reasonably let the ampoule go forward, and the duty "to take reasonable care to see that cracked or faulty ampoules did not reach the operating theatre" was not broken.

Denning L.J. met the argument that Re Polemis made the hospital liable for all direct consequences, however unforeseeable. He said "the decision in re Polemis is of very limited application", because two questions come first: whether a duty was owed, which depends on what one should foresee, and whether the neglect was a cause of the injury, where "The chain of causation is broken when there is an intervening action which you could not reasonably be expected to foresee". Foreseeability, he said, is only disregarded "when the negligence is the immediate or precipitating cause of the damage, as in re Polemis". He treated duty, causation and remoteness as "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?" Applying that, "The only consequence which could reasonably be anticipated was the loss of a quantity of nupercaine, but not the paralysis of a patient."

Morris L.J. reached the same result, relying on Lord Porter in Bolton v Stone: since no detectable damage was caused, there was no reason to contemplate that any injury would be likely to follow.

The hospital was responsible for the anaesthetists

All three judges disagreed with the trial judge on this. Denning L.J.: "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." They are responsible because, "even if they are not servants, they are the agents of the hospital to give the treatment", the only exception being consultants or anaesthetists selected and employed by the patient himself. Morris L.J. held that the hospital had undertaken to anaesthetise the patients and that the anaesthetists were members of its "organisation", so the highly skilled nature of Dr Graham's work "does not avoid the application of the rule of "respondeat superior"." Somervell L.J. would have treated both anaesthetists as part of the permanent staff. This did not help the plaintiffs, because no one for whom the hospital was responsible had been negligent.

Res ipsa loquitur

Denning L.J. thought the facts did call for an explanation, but "once the accident is explained, no question of res ipsa loquitur arises." Somervell L.J. adopted Lord Radcliffe's view that the maxim is a rule of evidence and observed that "In medical cases the fact that some thing has gone wrong is very often not in itself any evidence of negligence." Morris L.J. said the formula "possesses no magic qualities".

The wider policy

Denning L.J. closed: "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." And: "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."

A professional's conduct is judged by the knowledge that a competent member of the profession had, or ought reasonably to have had, at the time of the act; a failure to guard against a risk that was not then known is not negligence, even if it would be negligence once the risk is known. Where the injury is not a consequence that could reasonably have been foreseen from the careless act — here, cracks that no inspection could reveal — there is no liability. A hospital is responsible for the negligence of the anaesthetists and surgeons on its staff, as well as its nurses.

• Direct question: Discuss the standard of care expected of a medical professional. Use Roe for the rule that conduct is judged by the knowledge of the time — quote "1947 accident with 1954 spectacles".
• Remoteness question: Explain the rule in Re Polemis and its decline. Use Denning L.J.'s confinement of Polemis to the "immediate or precipitating cause" and his single question "Is the consequence within the risk?", as a step on the way to The Wagon Mound.
• Problem question: a patient injured by a hospital anaesthetist. Roe establishes the hospital's responsibility for its anaesthetist; the claim still turns on whether the anaesthetist fell below the standard of the time.
• Point worth marks: once the cause of an accident is explained, res ipsa loquitur drops out; the only question is whether anyone was negligent.