Re F (Mental Patient: Sterilisation); F v West Berkshire HA

JurisdictionUK Non-devolved
JudgeLord Simon of Glaisdale,Lord Evershed,Lord Bridge of Harwich,Lord Goff of Chieveley,Viscount Radcliffe,Lord Guest,Lord Reid,Lord Wilberforce,Lord Keith of Kinkel,Lord Upjohn,Lord Griffiths,Lord Russell of Killowen,Lord Brandon of Oakbrook,Lord Edmund-Davies,Lord Jauncey of Tullichettle
Judgment Date04 May 1989
Docket NumberParliamentary Archives, HL/PO/JU/18/249
CourtHouse of Lords
Date04 May 1989
Waugh (A.P.)
James K. Allan Limited

[1964] UKHL J0604-3

Lord Reid

Viscount Radcliffe

Lord Evershed

Lord Guest

Lord Upjohn

House of Lords

Upon Report from the Appellate Committee, to whom was referred the Cause Waugh (A.P.) against James K. Allan Limited, that the Committee had heard Counsel as well on Tuesday the 7th as on Wednesday the 8th days of April last, upon the Petition and Appeal of Hugh Waugh (Assisted Person), 7b Goose-green Road, Musselburgh, Midlothian, praying, That the matter of the Interlocutors set forth in the Schedule thereto, namely, an Interlocutor of the Lord Ordinary in Scotland (Lord Migdale) of the 18th of July 1962 and also an Interlocutor of the Lords of Session there of the First Division of the 24th of May 1963, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Interlocutors, so far as aforesaid, might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of James K. Allan Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal, in the Court of Parliament of Her Majesty the Queen assembled, That the said Interlocutors of the 18th day of July 1962 and of the 24th day of May 1963, in part complained of in the said Appeal, be, and the same are hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.

Lord Reid

My Lords,


While walking on the pavement of a street in Edinburgh the Appellant was struck and seriously injured by a heavy lorry belonging to the Respondents and being driven by their servant, Robert Gemmell. The immediate cause of the accident was that Gemmell was suddenly disabled by an attack of coronary thrombosis. The lorry had been properly driven at a normal speed. Then it appeared to draw in to its near side: it did not slacken speed, mounted the pavement, knocked down a lamp standard and struck the Appellant. Then it returned to the roadway, collided with one or two vehicles, and finally came to rest on the other side of the road in contact with another vehicle. While out of control it travelled some 85 yards. Before it came to rest Gemmell was seen to be slumped over the steering wheel. He was still breathing when it came to rest but died immediately after. So the Respondents plead inevitable accident. But the Appellant maintains that, by reason of his physical condition, Gemmell ought to have realised that he was unfit to drive at the time of the accident, and that is the issue in this case.


Gemmell was a big, powerful man aged 44. His doctor gave evidence for the Appellant and from him we learn that Gemmell suffered attacks of gastritis from time to time but was an impatient man who would not give in. Otherwise he appears to have enjoyed good health and his doctor had no suspicion that he might suffer from thrombosis or any other cause of sudden collapse.


On the day of the accident Gemmell, after making another call, took his lorry, some time before 11 a.m., to Gorgie Mills, a glue works owned by J. & G. Cox. He was to load about seven tons of bone meal and bone dust in hundredweight bags. He had to wait for a time because the loading squad were otherwise engaged and he complained to the foreman about the smell —a complaint which it seems is often made by those who visit the place. When loading started, Cox's men put each bag on the lorry and then Gemmell put it in its proper place. Apparently he found no difficulty in lifting these heavy bags. But after six tons had been properly stowed on the lorry he "turned badly" according to one of the men in the squad. Another says he "got a fit of coughing" while loading bags of bone dust. The men offered to finish the job for him and he jumped down off the lorry and went to a bothy some distance away for a drink of water. While he was away the men loaded the last eighteen bags. When he came back he vomited water and the men noticed that sweat was pouring from him and he looked very ill and pale. It was then seven or eight minutes before the dinner break at noon. The men offered Gemmell tea and suggested that he should rest, but he refused. So they left him leaning against the lorry, and it is clear that at that moment he could not have driven the lorry.


But a minute or two later he was sitting in his driving seat in the cab when the foreman came up and told him he must wait to sign for the load. He merely indicated that he understood. The foreman says he did not look ill, only flushed, but it would seem that he paid little attention to Gemmell: he did not know that he had been ill. Then the dispatch clerk brought a paper for his signature and Gemmell said he wanted to get away because of the smell and hoped it would be the last time he came there. He drove off immediately. The dispatch clerk saw that he was sweating heavily and belching but did not think that he was ill or on the point of collapse: but he also did not know that Gemmell had been ill and he did not take much notice of him.


Gemmell had to reverse his lorry twice and drive about 80 yards to the street and he appeared to do that without difficulty. Then he crossed the street, drew up at the other side and dismounted probably to see that the load was safely stowed. A witness who saw him walking round the lorry, climb into his cab and drive off saw nothing wrong. But he only drove about a quarter of a mile before he collapsed. A witness in a car following his lorry at that point saw nothing wrong with his driving until the lorry began to draw in to its near side without slackening speed: then she realised that there was something wrong but fortunately was able to avoid colliding with the lorry.


A great deal of the evidence and argument was directed to the question whether Gemmell's illness in the glue works was a preliminary stage of the thrombosis which struck him down ten or fifteen minutes later, or was simply a gastric attack brought on perhaps by the smell and quite unconnected with the thrombosis. Indeed, the main reason why this case was sent for proof before answer was that its decision might involve delicate questions of medical evidence. But it appears to me to be quite unnecessary to decide this question. The issue is not whether Gemmell was in fact unfit to drive when he left the glue works: it is whether as a reasonable man he ought to have realised that he was unfit. He had no reason to suspect thrombosis, even his doctor had never suspected it. But were his symptoms such that an ordinary layman would have taken them as a warning that it was hazardous to drive off immediately?


On that matter I think that we can be guided by the medical evidence. The Respondents' expert clearly thought not, but perhaps more importance should be attached to the view of Gemmell's own doctor who gave evidence for the Appellant. He knew the nature of Gemmell's gastric attacks. He thought that in fact the illness in the glue works was connected with the thrombosis but that, unless there was acute pain, Gemmell would assume that this was another attack of gastritis. Apart from pain the symptoms were similar. He agreed that nausea could be brought on by a bad smell. So it seems to me that much importance attaches to the question whether Gemmell did in fact suffer while he was sick pain more acute than is associated with a gastric attack. If he did he ought to have taken that as a warning. If he did not I think he could justifiably suppose that this was just another gastric attack. I do not attach much importance to the fact that he made no complaint of pain because he was not a man who complained. But the Respondents' expert thought that a man suffering from the acute pain which normally accompanies an onset of thrombosis could not hide it and could not have behaved as Gemmell did. And Gemmell's doctor says nothing to the contrary. None of the witnesses who saw him thought that he was suffering acute pain. So it appears to me that Gemmell must have assumed, and was justified in assuming, that this was simply a gastric attack.


We get little help from the evidence on the question whether it is safe for a man to drive soon after a gastric attack of sickness and nausea. It does not appear that an early recurrence of these symptoms is likely. Nor does it appear that such an attack generally leaves any substantial disability after the sickness has passed off. Fitness to drive involves not merely ability to control the vehicle in ordinary traffic but also ability to react quickly in an emergency. I could well understand that if such an attack is followed by severe headache or mental lassitude, the man ought not to drive until this, too, has passed off. But there is nothing to suggest that Gemmell was suffering or was likely to have been suffering from any such disability when he drove out of the glue works, either in the medical evidence or in the evidence of the witnesses who saw him after he had climbed back into his driving seat.


I am, therefore, of opinion that the Appellant has failed to prove that Gemmell acted rashly or negligently in driving off so soon after his illness, and no other fault can be imputed to him. One must have great sympathy with the Appellant who has suffered so severely through no fault of his own, but I find it impossible to blame Gemmell. Accordingly, I would dismiss this appeal.

Viscount Radcliffe

My Lords,


I confess that, if left to myself, I would have been disposed to allow this appeal. Even after studying the opinions in the Court of Session and those of your Lordships, which I have been able to read in advance, I cannot altogether rid...

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