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The doctor and the Supply of Goods and Services Act 1982

Published online by Cambridge University Press:  02 January 2018

Andrew P. Bell
Andrew P. Bell*
Affiliation:
University of Manchester
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Extract

Down the centuries, it has been considered that in general a doctor is only under a duty to exercise reasonable care in treating a patient. While the latter is entitled to a high standard of treatment, results are not guaranteed. In the United States, courts have imposed more onerous obligations, but in England there has been no real challenge to this position until now. The doctor's liability in contract has always had the potential of going beyond mere negligence, but the general concentration on tort actions and understandable uncertainties as to the scope of contractual liability meant that this potential was never explored.

Type
Research Article
Information
Legal Studies , Volume 4 , Issue 2 , July 1984 , pp. 175 - 184
Copyright
Copyright © Society of Legal Scholars 1984

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References

1. For the sake of convenience, the term ‘doctor’ is used throughout this article, but it should he made clear that the same principles apply to surgeons, anaesthetists, dentists, opticians etc and, where appropriate, hospitals (see n 9).

2. Pfizer Corporation v Minister of Health [1965] AC 512.

3. Ibid, at 536B, 544G and 522G.

4. Harmer v Cornelius (1858) 28 LJCP 85 at 88, per Willes J.

5. Nathan, Medical Negligence (1957), pp 10–11.

6. [1943] KB 526, CA.

7. [1946] 2 A11 ER 691.

8. The same rules apply whether or not the materials used become the property of the customer: Palmer, Bailment (1979), pp 536–537.

9. Thus, if a patient in a private hospital is given unsuitable rather than defective drugs under his contract with the hospital and the doctor who prescribed them had his own separate contract with the patient, the latter has no remedy unless the doctor was negligent. But if the patient has only one contract (be it with the doctor or the hospital) covering all diagnosis and materials, he may he able to sue even in the absence of fault.

10. Cf Young & Marten Ltd v McManus Childs Ltd [1969] 1 AC 454 at 476D, per Lord Wilberforce.

11. Cf the American case of Perlmutter v Beth David Hospital (1955) 123 NE 2d 792, in which the New York Court of Appeals held a hospital not liable when a paying patient was given a blood transfusion using blood contaminated with jaundice viruses. It was considered that the patient's contract was one purely for the provision of services and that liability could only be for negligence, which had not been established.

12. In Samuels v Davis, the dentist's work appears to have been regarded as solely directed to the production of an article, ie analagous to the manufacture of, say, a ship's propeller, which is a sale: Cammell Laird & Co Ltd v Manganese, Bronze & Brass Co Ltd [1934] AC 402. However, normally the elements of diagnosis and advice involved in medical contracts should outweigh the significance of the supply of medicines, so as to differentiate these cases from sales: Benjamin's Sale of Goods (2nd edn), para 45. In Dodd v Wilson, the serum was readily available commercially, it being merely a matter of convenience whether the farmer had the vet supply it or bought it himself and asked the vet to inject it, and for that reason the vet was equated with a commercial seller.

13. Op cit, p 19.

14. Section 13.

15. Sections 4 (transfer of goods) and 9 (hire).

16. Cf 1(1).

17. See generally Meyers, The Human Body and the Law (1970), Ch 5.

18. Benjamin's Sale of Goods (2nd edn), para 86; Palmer, op cit, p 7; Skegg, (1976) 5 Anglo-American Law Review, p 412; A.T.H. Smith, [1976] Crim L R 622.

19. Doodeward v Spence (1908) 6 CLR 406.

20. Cf Grant v Australian Knitting Mills [1936] AC 85 at 100, per Lord Wright.

21. Sections 4(2) and 9(2).

22. Sections 4(9) and 9(9).

23. Cf Dodd v Wilson, above, where the discussion actually related to fitness for purpose, but on the facts of which there would appear to he no difference between the two warranties.

24. Cf Henry Kendall & Sons Ltd v William Lillico & Sons Ltd [1969] 2 AC 31 at 77, per Lord Reid.

25. Cf Young & Marten Ltd v McManus Childs Ltd [1969] 1 AC 454.

26. Sections 4(9) and 9(9).

27. Cf Ashington Piggeries Ltd v Christopher Hill [1971] AC 441.

28. The patient's knowledge of the defects will be one of the ‘relevant circumstances’ which ss 4(9) and 9(9) direct should be taken into account in assessing what is merchantable quality: cf Micklesburgh, Consumer Protection (1979), p 398; or else it may modify the description applied to the goods: cf Benjamin's Sale of Goods (2nd edn), para 814. Sections 4(3)(a) and 9(3)(a) will generally be irrelevant as they only apply to defects drawn to the patient's attention before the contract is made.

29. Sections 4(4)-(5) and 9(4)-(5).

30. Sections 4(6) and 9(6).

31. Frost v Aylesbury Dairy Co Ltd [1905] 1 KB 608, CA.

32. Op cit, p 19. His original suggestion would appear irrelevant since an implicit understanding that the implied term should not apply could be regarded as a term excluding liability, usually invalidated by s 7 of the Unfair Contract Terms Act 1977.

33. Sections 4(4) and 9(4).

34. Sections 1(3), 6(3) and 12(3).

35. Section 13.

36. [1946] 2 All ER 691 at 695.

37. Cf Watson v Buckley, Osborne, Garrett & Co Ltd [1940] 1 All ER 174.

38. Palmer, op cit, p 523.

39. Eg Hancock v Brazier [1966] 2 All ER 901.

40. [1955] 2 QB 366, CA.

41. Per Denning L J at 374; cf Griffiths v Peter Conway Ltd [1939] 1 All ER 685, CA, a case on sale.

42. Griffiths v Peter Conway Ltd, supra at 691H, per Sir Wilfrid Greene MR.

43. Per Denning LJ at 374; per Birkett LJ at 377.

44. Griffiths v Peter Conway Ltd (supra); Ashington Piggeries Ltd v Christopher Hill [1972] AC 441 at 479, per Lord Guest.

45. Parsons (Livestock) Ltd v Uttley, Ingham & Co [1978] QB 791, CA.

46. Section 7(2) of the Unfair Contract Terms Act 1977.

47. Chatterton v Gerson [1981] 1 All ER 257.

48. Eg Hawkins v McGee (1929) 84 NH 114, 146 A 641, SC; Sullivan v O'Connor (1973) 296 NE 2d 183, Mass SC.