Date: Wed, 26 Nov 2003 12:12:54 –0700

From: Lewis Klar

Subject: Rees v. Darlington

Hi Jason:

I have not looked at Rees v Darlington, but subject to that proviso, the paragraph quoted seems fairly straight forward. The passage says (to me) that a doctor's duty to his/her patient does not vary depending upon whether the doctor has a direct contract with the patient or is providing the patient with services pursuant to the doctor's contract with a service provider. It is the ordinary duty (whether sounding in tort or contract) to use reasonable care in treating. It is the same duty, notwithstanding its tort or contract underpinning.

I would agree with the paragraph. I suppose there can be an exceptional contract which reduces or enlarges a doctor's normal tort duty of care, but I cannot imagine that this would occur often.

Lewis Klar
University of Alberta

>>> Jason Neyers 11/26/2003 11:48:06 AM <<<
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 ...

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