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Date:
Wed, 26 Nov 2003 13:48:06 -0500
From:
Jason Neyers
Subject:
Rees v. Darlington
Dear
Colleagues,
I
just had an opportunity to read the House of Lords decision in Rees
v. Darlington and I had two questions which I thought that some
of you might be able to answer:
1)
When the HL is asked to overrule a recent decision, in this case
McFarlane
v Tayside Health Board [2000] 2 AC 59, why do they not sit en
banc so that they would not have to duck the question of correctness
over concerns that differently constituted panels might reasonably
disagree?
2)
Does anyone understand the following passage from Lord Scott of
Foscote which I would regard as sloppy reasoning in any of my first
year students? Is it based on some implicit reliance on the new
UK Privity Act?
...
I have mentioned this difference in approach to claims in contract
and claims in tort in order to clear it out of the way. For it has,
in my opinion, no relevance at all in cases based on professional
advice or services given by professionals. There are two reasons
for this. First, if a professional, whether a doctor, a lawyer or
any other professional, provides professional advice or services
to a client on a non-contractual basis, the professional owes to
the client a professional duty of care in doing so. In the case,
for example, of a doctor working in the National Health Service
and advising or treating an NHS patient, the advice or services
are provided by the doctor pursuant to his contractual arrangements
with the NHS, not pursuant to any contract with the patient. But
the intention and purpose of those arrangements is that the doctor's
services be made available to NHS patients. That being so, the extent
of the duty of care owed to each NHS patient and the extent of the
doctor's liability, and his NHS employer's vicarious liability,
if the doctor is in breach of that duty, cannot in my opinion be
any different from the extent of the duty and of the liability for
any breach of duty that would apply in the case of a private patient
with whom the doctor had a contractual relationship. The NHS patient
is entitled to the benefit of the contractual duty owed by the doctor
pursuant to his contract with his NHS employers. (c/f White v Jones
[1995] 2 AC 207 ...
--
Jason Neyers
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435
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