Robinson v Post Office
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE ORR |
| Judgment Date | 25 October 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J1025-3 |
| Date | 25 October 1973 |
| Court | Court of Appeal (Civil Division) |
[1973] EWCA Civ J1025-3
In The Supreme Court of Judicature
Court of Appeal
(From: Mr. Justice Ashworth — London)
Lord Justice Davies
Lord Justice Buckley and
Lord Justice Orr
Mr. JOHN NEWEY, Q. C. and Mr. ROBIN AULD (instructed by The Solicitor, The Post Office) appeared on behalf of the Appellants (First Defendants)
Mr. JOHN GRIFFITHS, Q. C. and Mr. PETER LEWIS (instructed by Messrs. Shaen, Roscoe & Bracewell) appeared on behalf of the Respondent Plaintiff.
Mr. JOHN SPOKES, Q. C. (instructed by Messrs. Le Brasseur & Oakley) appeared on behalf of the Respondent the Second Defendant.
The judgment of the Court will be read by Lord Justice Orr.
This is an appeal by The Post Office against a judgment of Mr. Justice Ashworth given on the 21st December, 1972, by which he held the appellants, who were the first defendants in an action for damages for personal injuries, liable to the plaintiff in damages of £20,157.77 and interest, and also ordered them to pay to the second defendant, Dr. McEwan, his costs of defending the action.
The plaintiff in the action, Mr. Robinson, had been in the service of the appellants since 1955 and was, at the time of the accident complained of, 34 years of age and employed by the appellants as a technician, Class 1. The circumstances of the accident, which took place between 10 and 10.30 a. m. on the 15th February, 1968, were that he slipped when descending the ladder of one of the appellants' tower wagons and sustained a wound some three inches long on his left shin. It was not in dispute that the cause of his slipping was the presence of oil on the ladder due to leakage of a pump and that the appellants were liable for such modest damages as would have been attributable to the plaintiff's wound had nothing further supervened, but unfortunately, as a result of the medical treatment given to the plaintiff, very grave consequences supervened, and the contest in the action was as to the appellants' liability for these consequences.
The plaintiff after his fall was able to carry on working until knocking-off time at 5.30 p. m., after which he went to his general practitioner, Dr. McEwan, who saw him just after 6 p. m. and, after examining the wound, ascertaining its circumstances and that it had been caused some 7 ½ to 8 hours before, and enquiring what anti-tetanus injections the plaintiff had previouslyhad, sent him to a chemist for anti-tetanus serum (hereinafter in this judgment referred to as ATS) and on his return gave him an injection of the serum. The plaintiff's own evidence was that from then until the 24th February he felt perfectly well, was playing with his children, and was only absent from work because of the wound. His mother, however, gave evidence of his suffering, at the earliest three days after the injection, from an irritation which is referred to in the paragraph entitled "History" in a report dated 23rd April, 1968, by the medical registrar at the Ipswich Hospital and was taken by him to have been giant urticaria. On the 24th February, nine days after the injection, the plaintiff showed signs of reaction which were not at first thought to be serious but on the following day he became delirious and on the 26th February he was admitted to hospital and was on admission unable to speak. It was not in dispute at the trial that the plaintiff had at this time, as a result of the injection, contracted encephalitis, which is a possible, though a rare, consequence of the administration of ATS; and that the brain damage so sustained has been followed by very severe consequences. The plaintiff appeared at first to make a very good recovery but the improvement was short-lived. He had in early 1969, as a direct result of the brain damage, two attacks of an epileptic character and although there have been no further such attacks there is a risk of their recurrence. He is, as the judge found, a very different man from what he would have been if the accident had not befallen him.
In the action the plaintiff originally sued only the appellants but, they having in their defence made allegations of negligence on the part of Dr. McEwan, he was, by amendment of the writ and statement of claim, joined as a co-defendant; the allegations made against him in the amended statement of claimbeing identical with those set out in the appellants' defence.
At the trial the main issues which arose were, first, whether Dr. McEwan had, in all the circumstances, been negligent in injecting ATS; secondly, whether he had been negligent in injecting a full dose of ATS without administering a proper test injection beforehand; thirdly, whether, if he had been negligent in the second of these respects, such negligence caused or materially contributed to the encephalitis; and fourthly, whether, if Dr. McEwan was not liable in negligence to the plaintiff (it being admitted that, if he was, the chain of causation between the appellants' breach of duty and the encephalitis would be broken), the appellants were entitled in law to be held not liable for the damage attributable to the encephalitis on the ground that that illness was not foreseeable in the circumstances or was otherwise too remote a consequence of their admitted negligence.
As to the first and second of these issues, the judge held that it had not in the circumstances been negligent of Dr. McEwan to administer ATS but that he had been negligent in failing to administer a proper test dose. He went on, however, to find as a fact that if a proper test dose had been administered the plaintiff would not have shown any reaction to it and therefore the failure to administer a proper test dose had not caused or materially contributed to the encephalitis; and as to the fourth issue he held that the appellants were liable in law for the encephalitis as well as for the wound. He also made certain findings of fact, to which reference will be made later in this judgment, as to the plaintiff's medical history of anti-tetanus injections, and, with reference to complaints made in the appellants' defence and the amended statement of claim as to the insufficiency of the wound toilet applied by Dr. McEwan and as to his failure to administer an antibiotic, refused to find that the doctor had been negligentin either of these respects. These last conclusions have not been challenged in this appeal, nor has Dr. McEwan in this appeal sought to challenge the judged finding that he was negligent in failing to administer a proper test dose.
In the result the three issues in the appeal are whether the judge was right in holding (1) that it was not negligent of Dr. McEwan to administer ATS, (2) that the failure to administer a proper test does did not cause or materially contribute to the encephalitis, and (3) that the appellants were liable for the damages attributable to that illness.
Before turning to the first of these issues it should be mentioned that Mr. Newey, for the appellants, criticised the judge for considering separately the question whether Dr. McEwan was wrong to administer ATS at all and whether he was negligent in administering it without a proper test dose, but these are in fact distinct questions and we see no reason to suppose that in considering either question the judge overlooked any relevant evidence in relation to the other.
By way of introduction to the first issue it is necessary to refer to certain general evidence, given at the trial and not in dispute, as to the history of anti-tetanus precautions and also to the more important of a very large number of published or circulated papers on the subject which would have been available to a general practitioner before the date of the accident.
ATS first came into use about the beginning of this century. It may take the form of horse serum or human or bovine serum but it has always, for practical purposes, denoted horse serum since stocks of human or bovine serum are restricted to a very few centres in the country, and, while it was common ground at the trial that certain risks associated with horse serum and referred to in the medical literature are far less serious in the case ofhuman or bovine serum, it was also common ground that Dr. McEwan could not, in the circumstances of this case, have obtained either human or bovine serum in sufficient time for it to have any effect. The abbreviation ATS is therefore used throughout this judgment to denote ATS in the form of horse serum.
ATS was widely used in the 1914-18 war but it was found that a considerable number of those injected with it developed symptoms afterwards and some died. This led to research with the object of finding an alternative for it and an alternative was found in antitetanus toxoid of which an improved form became available in 1963 but it will be convenient to refer alike to the toxoid injected before and after that date as APT (alum-precipitated toxoid). During the 1939-43 war APT was administered both to the British and American Forces, whereas for civilians ATS continued to be used. For a short period from about 1945-48 the British Army stopped using APT but thereafter reverted to it. An essential difference between APT and ATS is that the former, administered in three doses, provides future immunity from tetanus for a period of years as to the duration of which different views have been held at different times, and within limits of time its efficacy can be restored by a single booster dose, but it is not, whereas ATS may be, efficacious to prevent the onset of tetanus in a wound in which, before the injection is made, there has been time for tetanus toxin tedevelop.
After the second World War APT was increasingly used and from the 1940s onwards increasing doubts were felt as to the desirability of using ATS, and those doubts are...
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