Drummond-Jackson v British Medical Association

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD PEARSON,Sir GORDON WILLMER
Judgment Date13 February 1970
Judgment citation (vLex)[1970] EWCA Civ J0213-2
Date13 February 1970
CourtCourt of Appeal (Civil Division)
Between
Stanley Lithgow Drummond Jackson
Plaintiff
Respondent
and
The British Medical Association
Colin Charles Wise, John Stanley Robinson,
Michael John Heath and
Peter James Tomlin
First defendant Appellant

[1970] EWCA Civ J0213-2

Before

The Master of The Rolls (Lord Denning),

Lord Pearson and

Sir Gordon Willmer

In The Supreme Court of Judicature

Court of Appeal

Appeal of first defendant from order of Mr. Justice Milmo in chambers on 18th December, 1969

Mr. HUGH DAVIDSON (instructed by Messrs. Jacobs & Greenwood) appeared on behalf of the British Medical Association, First Defendants, Appellants.

Mr. RICHARD HARTLEY (instructed by Messrs. Agar-Hutton & Co.) appeared on behalf of the Plaintiff Respondent.

THE MASTER OF THE ROLLS
1

Mr. Drummond-Jackson is a dental surgeon. He practices at 53 Wimpole Street. Some years ago, together with some other dentists, he developed a special technique called Intermittent Intravenous Mathohexitone. It was for use in conservative dentistry, that is, in preserving teeth by filling instead of pulling them out. Instead of giving a patient gas, the technique was to inject into a vein a light dose of a drug called Methohexitone. This rendered the patient unconscious for a time. The injection was repeated in small doses intermittently so as to keep the patient under as long as needed.

2

Mr. Drummond-Jackson used and recommended this technique. He wrote an article about it in 1962 in the British Dental Journal. He acquired an international reputation for it. He founded a society to advance the use of it. It was called the Society for the Advancement of anesthesia in Dentistry.

3

Other dentists were not so sure of this technique. It was considered at a high level. The ministry of Health appointed a Joint Sub-Committee, who made a report in 1967 on dental anesthesia. This Joint Sub-Committee considered this technique and disclosed some disquiet about it. They said: -

"…… The barbiturate now most often used intravenously in dentistry is Methohexitone……… Methohexitone possesses the general properties of the barbiturates which, when given intravenously, depress respiration and which will, with increasing dosage, eventually produce apnoea followed, if recovery occurs, by a gradual return of respiratory function………Some patients, such as young nervous adults, may even become violent and uncontrollable when under the influence of barbiturates the patient warned not to drive a car and to restrict his activities, especially the use of machinery, until the following day. This is especially important in the case of barbiturates."

4

Following on that authoritative Report, a team of four highly qualified men at Birmingham University made a scientific investigation into this technique. They were all in the Department of Anesthesia. They were: Mr. Wise, the Senior Registrar of the Department; Professor Robinson, the Professor of Anesthesia; Mr. Heather, the lecturers and Mr. Tomlin, the first assistant. This team selected thirty patients whovolunteered. These thirty were treated with this technique. The effect on them was examined with all the latest scientific equipment. Measurements were made. Tests were taken. The responses recorded. The results were brought together in a scientific paper subscribed by the team of four. They came to the conclusion that this technique was dangerous: and that its dangers should be brought to the notice of all concerned.

5

On the 31st May, 1969, the British Medical Journal published the scientific paper by these four in full. It was headed 'Physiological Responses to Intermittent Methohexitone for Conservative dentistry." It was a long paper, illustrated by diagrams, and full of technical details. The British Medical Journal made it the subject of their leading article in the same issue headed "Intermittent Intravenous Methohexitone.

6

It is not possible for me in this judgment to set out the whole of the paper. But it is said to be a libel on Mr. Drummond-Jackson. So I will pick out the key sentences:-

"…… Methohexitone was introduced in this country in 1960 and its intermittent injection was recommended for use in conservative dentistry by Drummond-Jackson in 1962. Several advantages have been claimed for this technique…….

Since the introduction of the technique disquiet about its safety has been expressed (Report of a Joint Subcommittee on Dental Anaesthesia, 1967). As no scientific investigation has so far been undertaken to establish these claims, it was decided to Investigate the physiological responses to intermittent injection of this drug in a number of fit, healthy volunteers undergoing conservative dentistry…

……The so-called minimal incremental technique of administering Methohexitone as described by Drummond-Jackson (1962) was used with a rest period at about 50 to 60 minutes. These rest periods have been described by Drummond-Jackson (1967) as necessary for both patient and operator The purpose of the investigation was to determine the physiological responses to repeated doses of Methohexitone in order to establish whether the claims for the safety (Drummond-Jackson 1967) of technique- were upheld or. whether the theoretical risks outlined in the Report of a Joint Sub-Committee on Dental Anaesthesia (1967) were indeed real……….

It would seem that the fears of the Joint Sub-Committee on Dental Anaesthesia have been substantiated, for the technique produces fluctuating levels of anesthesia with loss of integrity of the respiratory and cardiovascular systems. Concern was also felt because on a number of occasions the anesthetic conditions produced were prejudicial to good dentistry.

Several deaths associated with this technique have been reported in the Press, but it is difficult to gauge the overall number of patients who may be at risk with the Drug………The number of patients at risk would not appear to be as great as has been suggested. Nevertheless, on the evidence presented, the technique of intermittent methohexitone must be regarded as having serious detrimental physiological effects, which may well have been the cause of the reported deaths."

7

On the 8th July, 1969, Drummond-Jackson issued a writ against the British Medical Association (the publishers of the British Medical Journal) and the four scientists. The Statement of Claim says that the whole of the scientific paper was a libel on Mr. Drummond-Jackson. It says that the defendants:

8

"…falsely and maliciously wrote and caused to be published of and concerning the plaintiff and of. and concerning him in the way of his profession and in relation to his conduct therein the following words" (then follows the whole of the scientific paper. It covers six closely-typed foolscap pages, and includes the diagrams, and also all the references to other literature)."

9

The defendants applied to strike out the statement of claim as disclosing no reasonable cause of action. The Master and the Judge refused to strike it out. The British Medical Association apply for leave to appeal to this Court. We give leave and proceed to hear the appeal.

10

The first question is whether this procedure - an application to strike out - is an appropriate procedure. I think it is. I start with this: there is one issue which lies at the heart of this case. It is whether the words are reasonably capable of being understood as being defamatory of Mr. Drummond-Jackson personally. No innuendo is pleaded. The plaintiff relies solely on the natural and ordinary meaning of the words. No evidence is admissible on this issue. As Lord Justice Goddard said in Hough v. London Express Newspaper, (1940), 2 £. 5. at page 515: "In the case of words defamatory in their ordinary sense, the plaintiff has to prove no more than that they were published? he cannot call witnesses to prove what they understood by the words; nor will it avail the defendant to call any number of witnesses to prove that they did not believe theimputation. The only question is: "Might reasonable people understand them in a defamatory sense?"

11

This question is one which can, and should be decided at the outset on the pleadings. But the practice in England has been otherwise. I can tell you what happens. At the end of the plaintiff's case, Counsel for the defendant submits that the words are not capable of a defamatory meaning. The Judge, for caution's sake, rules that they are capable and leaves the case to the jury. (The Judge may, in his own mind, feel that the words are not reasonably capable of a defamatory meanings but, in case he is wrong - and to avoid the expense of another trial - he may think it better to take the opinion of the jury. Or he may even rule erroneously that the words are capable). So the case goes on. The defendant calls his evidence to prove fair comment or his other defences. The jury find the words to be defamatory and negative all defences. So judgment is entered against the defendant. The defendant appeals to the Court of Appeal, saying that the words were not capable of a defamatory meaning. Sometimes he wins in this Court, and gets the judgment set aside, as in Griffiths v. Evans, 27 T. L. 346. Sometimes there is a difference of opinion here, and the case goes to the House of Lords. They find that the words were not capable of a defamatory meaning and give judgment for the defendants. That is what happened in the leading cases of Capital and Counties Bank v. Henty, (1882) 7 A. C. 741; and Sim v. Stretch (1936) 52 T. L. R. 669. So the parties are put to the expense and trouble of a long trial when it could all have been avoided by a preliminary move.

12

Under the old system of pleadings, our forefathers managed things better. The plaintiff had to set out the words in his Declaration. The defendant could demur on the ground that the words were not capable of a defamatory meaning. The issue was decided on demurrer without the expense of a trial. That is what happened in...

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