Date: Wed, 26 Nov 2003 16:15:09 -0500

From: Jason Neyers

Subject: Rees v. Darlington

If Lewis is right then I do not have any difficulty with the passage but then much of it is irrelevant: e.g., it does not matter that the doctor is performing the surgery for payment from the NHS or gratuitously since the duty of care in tort is independent of the contract. But what I thought Lord Scott was suggesting was that the contract between the doctor and the NHS somehow created rights in the patient that are co-equal with the rights embodied in the contract between the NHS and the doctor, hence his citation of White v. Jones which is only explainable on this basis (the basis which caused the vociferous, and I would argue conceptually correct, dissents).

See para. 131:

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 where the disappointed beneficiaries, suing in tort, were placed by way of damages in the position they would have been in if the negligent solicitor had properly discharged his duty to his client, the testator).

And para. 148:

She was owed a duty of care in the carrying out of the operation. She was entitled to the benefit of the doctor's contractual obligation to his NHS employers to carry out the operation with due care.

 

Lewis KLAR wrote:

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.

--
Jason Neyers
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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