Wilsher -v- Essex Area Health Authority; HL 24 Jul 1986

References: [1988] AC 1074, [1988] 1 All ER 871, [1987] UKHL 11
Links: Bailii
Coram: Sir Nicolas Browne-Wilkinson V.-C., Mustill and Glidewell L.JJ.
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 had failed to prove that it had not caused the injury.
Held: The appeal succeeded. It was for the plaintiff to prove his case, and the court must allow that the Health Service will employ inexperienced doctors. The standard of care to be expected must be looked at relative to the experience of the doctor employed. However, the senior registrar was negligent in failing to recognise the error, and the damage was shown to be of the sort which might be expected to follow.
It was one thing to treat an increase of risk as equivalent to the making of a material contribution where one agent was involved, but quite another where any one of a number of events may equally probably have caused the damage.
This case cites:

  • Appeal from – Wilsher -v- Essex Area Health Authority CA (lip, [1986] 3 All ER 801, [1987] 2 WLR 425)
    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 . .
  • 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 – 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 . .
  • Cited – Thompson -v- Smiths Shiprepairers (North Shields) Ltd QBD ([1984] 1 QB 405, [1984] 1 All ER 881)
    The test to be applied in determining the time at which an employer’s failure to provide protection constituted actionable negligence was what would have been done at any particular time by a reasonable and prudent employer who was properly but not . .
  • Cited – Clark -v- MacLennan ([1983] 1 All ER 416)
    The court considered the judment in McGhee: ‘It seems to me that it follows from McGhee that where there is a situation in which a general duty of care arises and there is a failure to take a precaution, and that very damage occurs against which the . .
  • Cited – Vyner -v- Waldenberg Brothers Ltd CA ([1946] KB 50)
    Scott LJ said: ‘If there is a definite breach of a safety provision imposed on the occupier of a factory, and a workman is injured in a way which could result from the breach, the onus of proof shifts on to the employer to show that the breach was . .
  • Cited – Wakelin -v- London and South Western Railway Co HL ((1886) 12 App Cas 41)
    The liability of a defendant in negligence must rest in the first place on there being, per Lord Watson) ‘some negligent act or omission on the part of the company or their servants which materially contributed to the injury or death complained of . . .
  • Cited – Caswell -v- Powell Duffryn Associated Collieries HL ([1940] AC 152)
    An action was brought for injuries caused by a breach of statutory of duty.
    Held: A breach of statutory duty is regarded as ‘akin to negligence’.
    Lord Atkin said that a common sense rather than a philosophical or scientific approach to . .
  • Appeal from – Wilsher -v- Essex Area Health Authority CA (lip, [1986] 3 All ER 801, [1987] 2 WLR 425)
    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 . .

This case is cited by:

  • Approved – Fairchild -v- Glenhaven Funeral Services Ltd and Others HL (House of Lords, Times 21-Jun-02, Bailii, [2002] UKHL 22, [2003] 1 AC 32, [2002] Lloyds Rep Med 361, [2002] 3 All ER 305, [2002] PIQR P28, (2002) 67 BMLR 90, [2002] 3 WLR 89, [2002] ICR 798)
    The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the . .
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    The plaintiff suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure as a child whilst at the defendant hospital. A doctor was summoned but failed to attend, and the child suffered cardiac arrest and brain . .
  • Appealed to – Wilsher -v- Essex Area Health Authority CA (lip, [1986] 3 All ER 801, [1987] 2 WLR 425)
    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 . .
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    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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