Date: Thu, 2 Feb 2006 21:04:18 +1100

From: Harold Luntz

Subject: Standard of care in contribution proceedings

In relation to Robert's second question, Jones v Manchester Corp [1952] 2 QB 852 seems to me to be in point. Part of the headnote reads:

In an action by the widow of J. suing a doctor, who had been qualified for five months, and the hospital board, who had employed her, the judge found that the doctor was negligent in the administration of an anaesthetic to J., as the result of which he died. He gave judgment for the plaintiff against the doctor and the board for damages. The hospital board and the doctor each claimed an indemnity against the other for any damages or costs either might be called on to pay to the plaintiff. The judge ordered the board to indemnify the doctor against any damages and costs which she might be called on to pay on the ground that they had allowed a doctor with such slight experience to administer pentothal, a barbituric. The doctor had given anaesthetic on about 100 occasions and pentothal on some 20 occasions. The hospital board appealed.

The appeal was allowed. Singleton and Denning L.JJ. held that the hospital board were negligent, not merely vicariously, and that the doctor was negligent, not only through inexperience but also to some degree in not carrying out what she had been taught. They apportioned the responsibility under section 6 of the Law Reform (Married Women and Tortfeasors) Act, 1935 as to 20 per cent. on the doctor and as to 80 per cent. on the hospital board.

Denning LJ said:

In considering what is just and equitable, I think the court can have regard to extenuating circumstances which would not be available as against the injured person. Errors due to inexperience or lack of supervision are no defence as against the injured person, but they are available to reduce the amount of contribution which the hospital board can demand. It would be in the highest degree unjust that the hospital board, by getting inexperienced doctors to perform their duties for them, without adequate supervision, should be able to throw all the responsibility on to those doctors as if they were fully experienced practitioners.

Harold Luntz
Professorial Fellow
Law School
The University of Melbourne
Vic 3010

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