Date: Mon, 19 Dec 2005 08:59:50

From: Andrew Tettenborn

Subject: Doctors' duties

That seems to sum it up about right.

On the other hand, perhaps WBA weren't quite as quixotic as they look. There was an alternative -- and plausible -- claim in contract, which as far as I can understand it wouldn't have been subject to the bar on the actio per quod.

It could well be that counsel advised WBA that this represented their best shot, but then bunged in a claim in tort as well on the basis that it couldn't do any harm.

Andrew

>===== Original Message From David Cheifetz

Let me see if I have this correct.

1. WBA tried to sneak in, in the guise of an ordinary negligence action, what would be a type of per quod servitium amisit action that England's common law never allowed. I'm assuming Appleton wouldn't have qualified as a domestic servant.

2. Yet, nobody mentions that small conundrum (in the reported reasons). It's not surprising WBA's lawyer didn't, if he recognized that that is what he was trying to do. Actually para 68 and 69 imply that nobody spotted it. One would think that had the trial judge seen it, he would have also made the point that even if were inclined to find that a duty of care could exist under new principle, he was precluded by stare decisis.

3. The trial judge said, only, about prior cases [para 68] "In spite of the best endeavours of Counsel no reported case has been found where a duty of care has been held to exist in these circumstances. That comes as no great surprise." Classic understatement, no?

4. Given (1), it certainly wasn't a surprise if WBA's counsel didn't leave English case-law. He could have found Canadian common-law precedent; however, it would have done him no good as that law is based on an extension of per quod servitium amisit beyond the domestic servant, declining to accept the old English limitation.

Andrew Tettenborn
Bracton Professor of Law, University of Exeter, England

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