Hunter v Hanley
| Jurisdiction | Scotland |
| Judgment Date | 04 February 1955 |
| Date | 04 February 1955 |
| Docket Number | No. 19. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Patrick and a jury.
Reparation—Negligence—Medical practitioner—Departure from normal practice—Test of liability—Standard of care required—"Gross negligence."
In an action of damages against a doctor, the pursuer, who had suffered injury as a result of the breaking of a hypodermic needle while she was receiving an injection, alleged that the accident had been caused by the fault and negligence of the defender in failing to exercise the standard of care and competence which it was his duty to display in giving the injection. At the trial the presiding Judge directed the jury in the course of his charge that the test to be applied was whether there had been such a departure from the normal and usual practice of general practitioners as could reasonably be described as gross negligence. The jury having returned a verdict for the defender, the pursuer enrolled a motion for a new trial on the ground of misdirection.
Held that the direction given by the presiding Judge had not set out accurately the legal criterion for liability and that there must be a new trial.
Per the Lord President: "To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care."
Observations on the conception of "gross negligence" as a criterion of liability in civil cases.
Mrs Jemima Galloway Or Hunter brought an action against Dr Jonn M'Diarmuid Hanley, concluding for payment of £2500 as damages for personal injuries received by her as a result of his professional negligence.
The pursuer averred, inter alia:—(Cond.2) "The pursuer, who for some time prior to November 1951 had been a patient of the defender, was latterly being treated by him for chest troubles by intra-muscular injections of penicillin. On or about 24th November 1951 she was attending him at his surgery for an intramuscular injection into the right hip. This was the twelfth of a series of twelve injections which she was receiving from the defender. She had previously received a course of twelve injections from the defender during the previous September. As she was receiving said injection from the defender, the hypodermic needle which was being used by the defender for said injection broke and part of it remained in her body in the soft tissues between the right side of the pelvis and the lower ribs. She was sent by him to the Glasgow Royal Infirmary, where she underwent the course of treatment hereinafter condescended on. As a result of said accident she sustained the injuries and suffered thesequelœ hereinafter condescended on. With reference to the defender's averments in answer, not known and not admitted that the needle used by the defender was a 16 needle. Denied in particular that the breaking of the needle was an accident. Explained and averred that the breaking of the needle was due to the defender's negligence, as hereinafter condescended upon. Esto the needle used was a 16 needle, it was unsuitable for the purpose, and reference is made to condescendence 3. Quoad ultra denied, so far as not coinciding herewith." (Cond.3) "The said accident was due to the fault and negligence of the defender. It was his duty to exercise due and proper care, caution and diligence in his treatment of the pursuer and, particularly, when treating her by injections on said day. In pursuance of the standard of care and competence which it was his duty to display, he should have used a needle which was suitable and of adequate strength for the purpose of an intra-muscular injection, so that the deep fascia or sheaths of the muscle could have been safely penetrated. He should not have subjected the needle which he used to a strain and pressure for which it was not suited, and should not have used it for a purpose for which it was not suited or intended. He should not have used a hypodermic needle of a type which is not designed to penetrate to depth but is designed for depositing material under the skin. For the deposit of serum, involving the penetration of the deep fascia or sheaths of the muscle, a coarser needle should have been used. In particular a serum needle or a much coarser and stronger hypodermic needle ought to have been used—No. 1 or 2. Such a needle would have been able to stand the pressure and strain of such an injection, whereas the type of needle used was not sufficiently strong to do so. Any doctor possessing fair and average knowledge of his profession would know this, and, in failing to take care to use the proper type of needle, the defender was guilty of gross negligence. In any event, esto the defender used a type of needle which according to its type was safe and sufficient for the purpose (which is denied), he should have seen to it that the needle which he used for said injection had been properly maintained and was in fact safe and sufficient for its purpose. In these duties he failed and so caused the said accident …"
The following issue was approved for the trial of the cause:—"Whether the accident to the pursuer on or about 24th November 1951 at the defender's surgery at 686 Gallowgate, Glasgow, was caused by the fault of the defender? Damages claimed £2500."
On 16th July 1954 the trial took place before Lord Patrick and a jury, and at the conclusion of the presiding Judge's charge counsel for the pursuer intimated that he desired to except to that portion of the charge which dealt with the standard of care required of the defender.
The note of exceptions was in the following terms:—"Stott for the pursuer respectfully excepted to that portion of the presiding Judge's charge wherein his Lordship directed the jury as follows: “There must be such a departure from the normal and usual practice of general practitioners as can reasonably be described as gross negligence. I could use irom cases of high authority in the House of Lords, Scots cases, much stronger adjectives than that, but all that I will say to you in conclusion on the general topic is that there must be a serious departure from a normal...
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