Wilsher -v- Essex Area Health Authority; CA 1986

References: [1986] 3 All ER 801, [1987] 2 WLR 425
Links: lip
Coram: Mustill LJ, Sir Nicolas Browne-Wilkinson V-C
A prematurely-born baby was the subject of certain medical procedures, in the course of which a breach of duty occurred. to ensure that the correct amount was administered it was necessary to insert a catheter into an umbilical artery so that his arterial blood oxygen levels would be accurately read on an electronic monitor. A junior doctor mistakenly inserted the catheter into the umbilical vein with the result that the monitor would give a lower reading. Neither he nor the senior registrar appreciated that the X-rays taken showed the catheter in the vein but both realised that there was something wrong with the readings on the monitor. The senior registrar inserted another catheter but into the same vein and other means of monitoring the arterial blood oxygen were also adopted. The following day the second catheter was replaced by one in the artery. Thereafter the monitoring of the arterial blood oxygen levels continued and at times during the following weeks there were periods when the levels were considered too high. The plaintiff developed retrolental fibroplasia, a condition of the eyes, which resulted in blindness. The breach of duty increased the risk of his suffering it. But there were a number of other factors which might have caused the injury.
Held: ‘If it is an established fact that conduct of a particular kind creates a risk that injury will be caused to another or increases an existing risk that injury will ensue; and if the two parties stand in such a relationship that the one party owes a duty not to conduct himself in that way; and if the first party does conduct himself in that way; and if the other party does suffer injury of the kind to which the risk related; then the first party is taken to have caused the injury by his breach of duty, even though the existence and extent of the contribution made by the breach cannot be ascertained.’
Sir Nicolas Browne-Wilkinson V-C dissenting said: ‘To apply the principle in McGhee v National Coal Board [1973] 1 WLR 1 to the present case would constitute an extension of that principle. In the McGhee case there was no doubt that the pursuer’s dermatitis was physically caused by brick dust: the only question was whether the continued presence of such brick dust on the pursuer’s skin after the time when he should have been provided with a shower caused or materially contributed to the dermatitis which he contracted. There was only one possible agent which could have caused the dermatitis, viz, brick dust, and there was no doubt that the dermatitis from which he suffered was caused by that brick dust. In the present case the question is different. There are a number of different agents which could have caused the RLF. Excess oxygen was one of them. The defendants failed to take reasonable precautions to prevent one of the possible causative agents (eg excess oxygen) from causing RLF. But no one can tell in this case whether excess oxygen did or did not cause or contribute to the RLF suffered by the plaintiff. The plaintiff’s RLF may have been caused by some completely different agent or agents, eg hypercarbia, intraventricular haemorrhage, apnoea or patent ductus arteriosus. In addition to oxygen, each of those conditions has been implicated as a possible cause of RLF. This baby suffered from each of those conditions at various times in the first two months of his life. There is no satisfactory evidence that excess oxygen is more likely than any of those other four candidates to have caused RLF in this baby. To my mind, the occurrence of RLF following a failure to take a necessary precaution to prevent excess oxygen causing RLF provides no evidence and raises no presumption that it was excess oxygen rather than one or more of the four other possible agents which caused or contributed to RLF in this case. The position, to my mind, is wholly different from that in the McGhee case [1973] 1 WLR 1, where there was only one candidate (brick dust) which could have caused the dermatitis, and the failure to take a precaution against brick dust causing dermatitis was followed by dermatitis caused by brick dust. In such a case, I can see the common sense, if not the logic, of holding that, in the absence of any other evidence, the failure to take the precaution caused or contributed to the dermatitis. To the extent that certain members of the House of Lords decided the question on inferences from evidence or presumptions, I do not consider that the present case falls within their reasoning. A failure to take preventative measures against one out of five possible causes is no evidence as to which of those five caused the injury.’
This case cites:

  • Applied – Bolam -v- Friern Hospital Management Committee QBD ([1957] 1 WLR 582, [1957] 2 All ER 118)
    Negligence was alleged against a doctor.
    Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
  • Cited – A/S Rendal -v- Arcos Ltd HL ((1937) 43 Com Cas 1, HL, (1937) 58 LLR 287)
    . .
  • Cited – Bonnington Castings Ltd -v- Wardlaw HL ([1956] 1 All ER 615 HL(Sc), [1956] 2 WLR 707, [1956] AC 613, 1956 SC (HL) 26, Bailii, [1956] UKHL 1)
    The injury of which the employee complained came from two sources, a pneumatic hammer, in respect of which the employers were not in breach of the relevant Regulations; and swing grinders, in respect of which they were in breach.
    Held: It had . .
  • Cited – McDermid -v- Nash Dredging & Reclamation Co Ltd HL ([1986] 3 WLR 45, [1986] 2 All ER 676 CA, [1986] QB 965, Bailii, [1986] UKHL 5)
    The Court explained the duty of an employer towards his employees as regards their safety: ‘an employer owes to his employee a duty to exercise reasonable care to ensure that the system of work provided for him is a safe one. Secondly, a provision . .
  • Reviewed – McGhee -v- National Coal Board HL ([1973] 1 WLR 1, [1973] SC (HL) 37, [1972] 3 All ER 1008, Bailii, [1972] UKHL 7, Bailii, [1972] UKHL 11)
    The claimant who was used to emptying pipe kilns at a brickworks was sent to empty brick kilns where the working conditions were much hotter and dustier. His employers failed, in breach of their duty, to provide him with washing facilities after his . .
  • Appealed to – Wilsher -v- Essex Area Health Authority HL ([1988] AC 1074, [1988] 1 All ER 871, Bailii, [1987] UKHL 11)
    A premature baby suffered injury after mistaken treatment by a hospital doctor. He had inserted a monitor into the umbilical vein. The claimant suggested the treatment should have been by a more senior doctor. The hospital appealed a finding that it . .
  • Cited – McGhee -v- National Coal Board HL ([1973] 1 WLR 1, [1973] SC (HL) 37, [1972] 3 All ER 1008, Bailii, [1972] UKHL 7, Bailii, [1972] UKHL 11)
    The claimant who was used to emptying pipe kilns at a brickworks was sent to empty brick kilns where the working conditions were much hotter and dustier. His employers failed, in breach of their duty, to provide him with washing facilities after his . .

This case is cited by:

  • Appeal from – Wilsher -v- Essex Area Health Authority HL ([1988] AC 1074, [1988] 1 All ER 871, Bailii, [1987] UKHL 11)
    A premature baby suffered injury after mistaken treatment by a hospital doctor. He had inserted a monitor into the umbilical vein. The claimant suggested the treatment should have been by a more senior doctor. The hospital appealed a finding that it . .
  • Cited – McTear -v- Imperial Tobacco Ltd OHCS (Bailii, [2005] ScotCS CSOH_69, Times 14-Jun-05, Scottish CS)
    The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
    Held: The action failed. The plaintiff had not . .
  • Appeal from – Wilsher -v- Essex Area Health Authority HL ([1988] AC 1074, [1988] 1 All ER 871, Bailii, [1987] UKHL 11)
    A premature baby suffered injury after mistaken treatment by a hospital doctor. He had inserted a monitor into the umbilical vein. The claimant suggested the treatment should have been by a more senior doctor. The hospital appealed a finding that it . .
  • Cited – Farraj and Another -v- King’s Healthcare NHS Trust (KCH) and Another CA (Bailii, [2009] EWCA Civ 1203, (2010) 11 BMLR 131, [2010] PIQR P7, [2010] Med LR 1)
    The claimant parents each carried a gene making any child they bore liable to suffer a serious condition. On a pregnancy the mother’s blood was sent for testing to the defendants who sent it on to the second defendants. The condition was missed, . .
  • Cited – Sienkiewicz -v- Greif (UK) Ltd; Knowsley Metropolitan Borough Council -v- Willmore SC ([2011] 2 WLR 523, [2011] ICR 391, SC, SC Summary, UKSC 2009/0219, Bailii, [2011] UKSC 10, Bailii Summary, [2011] 2 AC 229)
    The Court considered appeals where defendants challenged the factual basis of findings that they had contributed to the causes of the claimant’s Mesothelioma, and in particular to what extent a court can satisfactorily base conclusions of fact on . .

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