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Refusal of medical treatment

Published online by Cambridge University Press:  02 January 2018

A. H. Hudson
A. H. Hudson*
Affiliation:
University of Liverpool
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Extract

It is a commonplace of the law of mitigation and remoteness in tort that if a plaintiff who has suffered tortiously inflicted personal injuries unreasonably refuses medical treatment he will be regarded as having failed to mitigate. Tersely stated this may seem almost self-evident though case law here and in Australia shows that it involves a number of difficult issues.

Workmen's Compensation supplied a prologue to the present law. Though the statutes nowhere required an injured workman to mitigate by undergoing treatment, the courts held that any incapacity which could be regarded as resulting from a workman's unreasonable refusal of treatment was not proximately caused by the accident on which the claim was based and hence did not qualify for compensation.

Type
Research Article
Information
Legal Studies , Volume 3 , Issue 1 , March 1983 , pp. 50 - 59
Copyright
Copyright © Society of Legal Scholars 1983

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References

1. Clerk, and Lindsell, Torts (15th edn) p. 209 Google Scholar; Fleming, Torts (5th edn) p. 236 Google Scholar; Salmond, and Heuston, Torts (18th edn) p. 519 Google Scholar; Winfield, and Jolowicz, Tort (11th edn) p. 609 n. 56Google Scholar; James, General Principles of Torts (4th edn) p. 453 Google Scholar; Hart, and Honoré, Causation in the Law p. 320 Google Scholar. See also Atiyah, Accidents, Compensation and the Law (3rd edn) p. 567 Google Scholar. McGregor, on Damages (14th edn) pp. 63–64 and 166Google Scholar.

2. 34 Digest 563–567.

3. Hart, and Honoré, Causation in the Law p. 320 Google Scholar; Steele v George [1942] AC 497, 503 per Lord Wright.

4. See ibid. per Lord Wright who after saying that other decisions on fact ‘are more likely to mislead than to guide’ added that ‘sometimes it may help to know what was decided on more or less similar facts’. See also Lord Atkin at 502, Lord Romer at 506 and Lord Porter at 508 to the same effect. On the borderline where inferential findings of fact are for some purposes treated as law see Atiyah Accidents, Compensation and the Law (3rd ed) p. 39.

5. Morgan v Wallis [1974] 1 Lloyds Rep 165 at 167–168.

6. See Glavonjic v Foster [1979] VR 536; Karabotsos v Plastex [1981] VR 675. See past, nn. 47 and 54.

7. Rothwell v Davies (1903) 19 TLR 423. See the questions for assessing reasonableness suggested by Lord Ardwall in Donnelly v Baird 1908 SC 536 at 544. See also per Lord McLaren at 540.

8. Warncken v Moreland [1909] 1 KB 184; Simpson v Byrne (1913) 6 BWCC 455; Dowds v Bennie 1902 5 F 268; Moss v Akers (1911) 4 BWCC 294.

9. Ruddy v LMS (1929) 22 BWCC 138.

10. McGowan V Coltness Iron Co 1945 SC 371.

11. See e.g. per Lord McLaren in Donnelly v Baird 1908 SC at 541.

14. [1944] AC 62 at 68.

13. [1909] 2 KB 54.

14. (1913) 110 LT 452 at 453.

15. (1920) 124 LT 545.

16. In Fyfe v Fife Coal Co (1927) 138 LT 65 Lord Dunedin said at 67 that it was not necessarily reasonable or unreasonable to follow one's own doctor. Other relevant cases are Sweeney v Pumpherston 1903 5 F 972; Hawkes v Coles (1910) 3 BWCC 163; Gracie v Clyde (1915) 8 BWCC 630; Tyrie v Limber (1944) 37 BWCC 130.

17. [1942] AC 497.

18. Ibid., at 500.

19. Ibid., at 501.

20. [1957] 2 Lloyds Rep 500.

21. Ibid., at 505. A common law case in which the fact that the plaintiffs own doctor did not advise on operation told in favour of refusal being reasonable is Savage v Wallis [1966] 1 Lloyds Rep 357 at 361.

22. Payzu v Saunders [1919] 2 KB 581; The World Beauty [1970] P 144; James Introduction to Torts (4th edn) p. 452; Watts v Rake (1960) 108 CLR 158 at 159; Roper v Johnson (1873) LR 8 CP 167 at 181 and 184; Garnac Grain v Faure [1968] AC 1130 at 1140; Morgan v Wallis [1974] 1 Lloyds Rep 165 at 170.

23. [1954] 1 Lloyds Rep 395.

24. Ibid., at 397.

25. Ibid., at 399–400.

26. Ibid., at 401.

27. Atiyah, , Accidents, Compensation and the Law (3rd edn) pp. 77–88 Google Scholar; McLughin v O'Brian [1982] 2 All ER 298, HL. McGregor on Damages (14th edn) pp. 63–64, para. 91 regards a subjective test as more consistent with mitigation but defends Marcroft on the ground that when ‘the way of mitigation is clear … it may be that an objective test must be applied to keep within the realities of the situation’ otherwise the defendant may be compelled to pay for unnecessary illness.

28. Glasgow Corpn v Muir [1943] AC 448 at 457.

29. [1954] 1 Lloyds Rep at 397 and 401.

30. Winfield and Jolowicz Tort (11th edn) pp. 126–128; Salmond and Heuston Torts (18th edn) p. 514 citing Malcolm v Broadhurst [1970] 3 All ER 508 on emotional susceptibility; Street, Torts (6th edn) pp. 148–150 citing Love v Port of London Authority [1959] 2 Lloyds Rep 541 on exteme neurotic reaction; Fleming Torts (5th edn) pp. 191–193 and 206 citing The City of Lincoln (1889) 15 PD 15 and The Oropesa [1943] P 32. The metaphor of ‘the heavy hand’ was used by Lord Sumner in SS Singleton Abby v SS Paludina [1927] AC 16 at 27 James Torts (4th edn) p. 28.

31. [1954] 1 Lloyds Rep at 401.

32. [1969] 3 All ER 1621.

33. [1969] 3 All ER 1006.

34. [1974] 1 Lloyds Rep 165.

35. Ibid., at 170.

36. Walsh v Lock (1913) 110 LT 452; Polidori v Staker (1973) 6 SASR 273.

37. [1974] 1 Lloyds Rep at 173–174.

38. See ante, n. 30. Cf. Clerk and Lindsell Torts (15th edn) p. 209.

39. Kaye J in Karabotsos v Plastex [1981] VR at 683.

40. [1951] SASR 91.

41. (1960) 60 SR (NSW) 488.

42. [1978] Qd R 195. In England also a defendant does not take the plaintiffs family as he finds it; McLaren v Bradstreet (1969) 113 SJ 471.

43. [1964–65] NSWR 1597.

44. (1973) 6 SASR 273.

45. [1975] WAR 155.

46. Ibid., at 158.

47. [1979] VR 536.

48. [1942] AC 497 at 499.

49. 1908 SC 536 at 439–440.

50. [1942] AC at 503–504.

51. [1979] VR at 539.

52. Ibid., at 538.

53. Ibid., at 539–540.

54. [1981] VR 675.

55. Ibid., at 677–678. But see post n. 62 on the different attitudes of the courts to mental as distinct from physical peculiarities.

56. See Shorter Oxford Dictionary.

57. [1981] VR at 683. On the findings of fact see also Young CJ at 679–680, and Kaye J at 683–688.

58. Ibid., at 687.

59. Ibid., at 683.

60. Daly v Liverpool Corpn [1939] 2 All ER 142; Gough v Thorne [1966] 1 WLR 1387. Winfield Tort (11th edn) 138–140.

61. Atiyah, Accidents, Compensation and the Law (3rd edn) pp. 144–145 Google Scholar.

62. Fleming, Torts (5th edn) p. 112 Google Scholar citing Baxter v Woolcombers (1963) 107 SJ 553; Street Torts (6th edn) p. 125 expressing a preference for a passage in Holmes Common Law p. 109 suggesting that all recognisable defects be taken into account. But see McGregor on Damages (14th edn) pp.63–64.

63. It might also be controversial as to how far ethnic and community fears and objections to treatment should be recognised as in Karabotsos v Plastex.