Date: Thu, 27 Nov 2003 09:24:20

From: Andrew Tettenborn

Subject: Rees v. Darlington

I suspect Lewis Klar is right as to what Lord Scott was getting at: but I agree with Jason it could have been better expressed. Incidentally, on our anti-privity legislation it would often not be the case that the patient could rely on the contract between the physician and the Govt, since s.6(3) specifically excludes third party actions against a worker on the basis of the contract of employment.

More interestingly, however, I'm not sure that in the context of botched sterilisation we ought necessarily to treat contractual and tortious duties as the same. Although McFarlane v Tayside has clearly been modified by Rees, one strand of the reasoning in McFarlane clearly carries over into Rees: namely, that in tort actions there were better ways of spending National Health Service funds than subbing up for the feeding, clothing, private schooling, etc., of an unwanted but healthy youth (i.e. Hoffmann's policy argument based on "distributive justice"). Hence the limit, however arbitrary, on recovery agreed in Rees.

But does this reasoning apply in contract? Suppose a physician agrees to carry out a sterilisation by private arrangement, for a paying patient. I can't see any argument of policy why he shouldn't be liable for the whole whack if it goes wrong - assuming, of course, he doesn't limit his liability. Whatever the position in tort, where to some extent we all pay, I certainly see no reason of overriding policy for the state to intervene in a private contract to alter the measure of recovery that would otherwise be available on ordinary contractual principles.

Andrew

Date: Wed, 26 Nov 2003 12:12:54 -0700
From: "Lewis KLAR"
Subject: Re: ODG: 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.

Andrew Tettenborn MA LLB
Bracton Professor of Law

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