Date: Thu, 27 Nov 2003 11:12:22 –0500

From: Jason Neyers

Subject: Rees v. Darlington

But to play the devil's advocate, what about the malpractice insurance costs which would be passed on back to many people (how many in the UK go private?) either through higher fees for medical services or through higher fees for other types of insurance if the companies subsidize malpractice insurance or suffer large unexpected losses.

In the end, I am still of the view that the policy approach to law is irrelevant and distracting and that both McFarlane and Rees are justifiable for the reasons given by Lord Scott which, wisely, do not mention policy or distributive justice. Instead, he works through the doctrine taking into account the unique nature of human life and in the end offers a corrective justice solution to a thorny problem. Alas, it now seems that this generation of British judges is starting to succumb to the North American disease of assuming that if a legal question is difficult (i.e. could admit of two or more possible answers) and cannot be solved adequately by the mechanical operation of black letter law rules, the answer proposed must be political and somehow engages concerns over distributive justice.

Andrew Tettenborn wrote:

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.

Cheers,

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

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