# Tort law- help from legal eagles reqired please **URL:** \ **Category:** Factual Questions\ **Created:** [April 9, 2006, 12:20pm UTC](https://boards.straightdope.com/t/tort-law-help-from-legal-eagles-reqired-please/351949 "2006-04-09T12:20:42Z")\ **Posts on this page:** 9\ **Page:** 1
**Author:** ![irishgirl](https://avatars.discourse-cdn.com/v4/letter/i/8edcca/32.png) [@irishgirl](https://boards.straightdope.com/u/irishgirl)\ **Post date:** [April 9, 2006, 12:20pm UTC](https://boards.straightdope.com/t/tort-law-help-from-legal-eagles-reqired-please/351949/1 "2006-04-09T12:20:42Z")
I have an exam on Monday, and 1 MCQ is going to be on Medical Jurisprudence, specifically Tort law and causation. However, looking back at my notes, I seem to have written gibberish. I’ve put down just the names of the cases, not the verdicts and what particular thing was upheld- for some unknown reason, probably because the lecturer was talking too fast. Can any legal eagles help me out? Summers vs. Tice I get (quail shooting and both defendants negligent even though only one fired the shot), anyone have a clue about: Cook vs. Lewis Chappel vs. Hart Gregg vs. Scott Wilsher vs. Essex AHA Plus, the " thin skull rule" is that although the damage must be forseeable, you should think outside the box to include very unlikely things, making “forseeable” very broad- right? ---
**Author:** ![crowmanyclouds](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/crowmanyclouds/32/19884_2.png) [@crowmanyclouds](https://boards.straightdope.com/u/crowmanyclouds)\ **Post date:** [April 9, 2006, 1:01pm UTC](https://boards.straightdope.com/t/tort-law-help-from-legal-eagles-reqired-please/351949/2 "2006-04-09T13:01:53Z")
[thin skull rule](http://en.wikipedia.org/wiki/Thin_skull_rule) CMC fnord! ---
**Author:** ![irishgirl](https://avatars.discourse-cdn.com/v4/letter/i/8edcca/32.png) [@irishgirl](https://boards.straightdope.com/u/irishgirl)\ **Post date:** [April 9, 2006, 1:32pm UTC](https://boards.straightdope.com/t/tort-law-help-from-legal-eagles-reqired-please/351949/3 "2006-04-09T13:32:47Z")
Ah- take your defendant as you find him. Thanks **crowmanyclouds**. ---
**Author:** ![Billdo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/billdo/32/315_2.png) [@Billdo](https://boards.straightdope.com/u/Billdo)\ **Post date:** [April 9, 2006, 1:47pm UTC](https://boards.straightdope.com/t/tort-law-help-from-legal-eagles-reqired-please/351949/4 "2006-04-09T13:47:58Z")
I knew I kept my old Tort Law book for something: _Summers v. Tice_, 22 Cal2d 80 (Cal. 1948). Man was shot and injured by one bullet fired a two man hunting party while across the road, but there was no evidence of which hunter fired the offending bullet. Thus, there was no way to show that it was more likely than not (preponderance of the evidence) that one or the other caused the injury. The court found that both hunters could be held liable because they were acting in concert. The court held that it should not be the defendant’s responsibility to show who fired the shot, but since the hunters caused the injury they should be responsible for showing who did or did not, and if they can’t both can be held liable. (Apparently _Cook v. Lewis_, [1952] 1 Dom. L. Rep. 1 is similar, but it is just referenced but not printed in my book.) Unfortunately, I don’t have anything on the other cases. ---
**Author:** ![shefDave](https://avatars.discourse-cdn.com/v4/letter/s/77aa72/32.png) [@shefDave](https://boards.straightdope.com/u/shefDave)\ **Post date:** [April 9, 2006, 2:43pm UTC](https://boards.straightdope.com/t/tort-law-help-from-legal-eagles-reqired-please/351949/5 "2006-04-09T14:43:15Z")
I can give you a hand with a couple of these. _Wilsher v Essex AHA [1988] AC 1974_ A premature baby was place in a special care unit. The catheter used to monitor the oxygen levels in the baby’s blood was mistakenly inserted into a vein instead of an artery leading to the baby being given excess oxygen. The baby developed retrolental fibroplasia which led to it going blind. The plaintiff claimed damages for negligent medical treatment. At first instance the judge held that the AHA were liable, since they had failed to prove that the plaintiff’s condition had not been caused by the negligence of their employees. The Court of Appeal (by a majority) dismissed the AHA’s appeal. On appeal to the House of Lords, however, the decision was reversed. There were a number of different factors (6 or 7, I think) that could have caused the retrolental fibroplasia, excess oxygen being just one of them. The defendants’ failure to take a necessary precaution to prevent excess oxygen causing the condition provided no evidence and raised no presumption that it was excess oxygen rather than one of the other factors which caused or contributed to the plaintiff’s condition. The onus of proving causation rested on the plaintiff. _Gregg v Scott [2005] UKHL 2_ The claimant’s doctor failed to diagnose that a lump under his arm was lymphoma, leading to a nine-month delay in treatment beginning, by which point the tumour had spread to his chest as well. In proceedings brought against the doctor, it was found that he had been negligent. In considering causation, statistical evidence showed that if the lymphoma had been treated straight away the claimant would have had a 42% chance of a cure, and that the delay in treatment had reduced this to a 25% chance of a cure. At first instance it was held that the claimant had not been deprived of the prospect of a cure because he would have been unlikely to survive for more than ten years even if he had been treated immediately. The Court of Appeal dismissed the claimants appeal. On appeal to the House of Lords, it was held (3-2) that damages were not recoverable for a reduction in the prospect of a favourable outcome and there was no justification for the introduction of such a liability. In the instant case it could not be established that delay in diagnosis had caused a reduction in the claimant’s expectation of life and the appeal would therefore be dismissed. No liability for “loss of a chance”, essentially. ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [April 9, 2006, 2:59pm UTC](https://boards.straightdope.com/t/tort-law-help-from-legal-eagles-reqired-please/351949/6 "2006-04-09T14:59:28Z")
_Cook v. Lewis_, [1952] 1 D.L.R. 1 was a decision of the Supreme Court of Canada. As **Billdo** notes, similar to _Sommers v. Tice_, but the evidence was that both hunters fired shots in the direction of the plaintiff. The jury held that they were satisfied that one of those shots hit the plaintiff, but could not say which defendent fired the shot, and therefore found neither one liable. The Supreme Court set it aside and ordered a re-trial, on two grounds. First, plaintiff had pleaded the matter in both trespass and in negligence. Under the rules for trespass, once direct application of force is shown, the onus switches to the defendant to disprove intention. The trial judge had not properly instructed the jury on this point. Second, on the negligence issue, once the jury found that both had shot negligently towards the plaintiff, both should have been found liable. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [April 9, 2006, 3:07pm UTC](https://boards.straightdope.com/t/tort-law-help-from-legal-eagles-reqired-please/351949/7 "2006-04-09T15:07:34Z")
> [@](#): > > In Chappel v. Hart, Chappel, an ear, nose and throat specialist, performed surgery on a patient, Hart, for the removal of a pharyngeal pouch in her esophagus. Hart would have required the operation eventually but it was still considered elective because she did not need it right away. Hart had expressed concern on what effect the operation might have on her voice. Chappel failed to warn her of a small risk of vocal damage if the esophagus were perforated and an infection set in. During surgery, Hart’s esophagus was perforated and infection did set in, which led to a paralysis of the right vocal cord. The failure of Chappel to warn Hart of the risk of damage to her voice was held to have set off a foreseeable chain of events permanently affecting Hart’s voice. > > While Hart admitted that she still would have undergone the operation even if she had been warned of the risk, she testified that she would have deferred the operation, taken further advice and probably would have sought out the most qualified surgeon available. That surgeon was apparently not Chappel. > > There was a difference of opinion between the majority and dissenting judges as to whether surgery by a more experienced surgeon would have carried a lower risk to the patient’s voice. The majority of the judges concluded that the risk would have been lower had a more experienced surgeon performed the operation. > > More importantly, three of the five judges held that Chappel’s failure to advise Hart of the risk led to her undergoing the procedure when and where she did, and vitiated her consent. > > The Court therefore clearly held that a medical practitioner is under a duty to inform a patient of any foreseeable risk. It also went further, however, and held that where such a duty arises, it is necessary for the plaintiff to establish what she would have done if the information in question had been provided to her (Ibid, at para. 9). > > The court in Chappel adopted a primarily subjective theory of causation in determining whether the failure to warn would have avoided the injury suffered. > > Gaudron J. seemed most influenced by the evidence of a medical professor that suggested that the risk would have been less if Hart had had a more experienced surgeon. He stated: > > It is not in doubt that a risk of perforation and infection was and is inherent in surgery of the kind performed on Mrs. Hart. In that sense, the risk of injury was the same, no matter when or by whom the surgery was performed. However, that is not to say that the likelihood of that risk eventuating was the same. > > Professor Benjamin gave evidence from which it might be inferred that the risk of perforation, without which the injury sustained by Mrs Hart could not have occurred, diminished with the skill and experience of the surgeon concerned. (Ibid at para 17) > > Similarly, Gummow J. found that Hart would not have undergone the procedure by Chappel, but would have wanted “the most experienced person with a record and reputation in the field, such as Professor Benjamin” (Ibid, at para. 78). Kirby J. held that “intuition and common sense suggest that the higher the skill of the surgeon, the less is the risk of any perforation of the oesophagus into the mediastinum” (Ibid, at para. 97). > > Kirby J. also placed considerable significance on the fact that Hart had inquired into a possible risk to her voice. He said, “(t)his was not an ordinary patient. It was an inquisitive, persistent and anxious one who was found to have asked a particular question to which she received no proper answer” (Ibid, at para. 99). > **[Province of MB | The PCSIR - Ch 1 - The law of medical consent](http://www.pediatriccardiacinquest.mb.ca/ch01/thelaw.html)** > > The Report of the Manitoba Pediatric Cardiac Surgery Inquest: an inquiry into twelve deaths at the Winnipeg HSC in 1994. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [April 9, 2006, 3:21pm UTC](https://boards.straightdope.com/t/tort-law-help-from-legal-eagles-reqired-please/351949/8 "2006-04-09T15:21:16Z")
Here is the Gregg v. Scott case: [http://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd050127/greg-1.htm](http://www.publications.parliament.uk/pa/ld200405/ldjudgmt/jd050127/greg-1.htm) Summers: [http://online.ceb.com/CalCases/C2/33C2d80.htm](http://online.ceb.com/CalCases/C2/33C2d80.htm) This case discusses a few of the cases that you mentioned: [http://www.lexum.umontreal.ca/csc-scc/en/pub/1990/vol2/html/1990scr2\_0311.html](http://www.lexum.umontreal.ca/csc-scc/en/pub/1990/vol2/html/1990scr2_0311.html) ---
**Author:** ![irishgirl](https://avatars.discourse-cdn.com/v4/letter/i/8edcca/32.png) [@irishgirl](https://boards.straightdope.com/u/irishgirl)\ **Post date:** [April 9, 2006, 5:44pm UTC](https://boards.straightdope.com/t/tort-law-help-from-legal-eagles-reqired-please/351949/9 "2006-04-09T17:44:34Z")
Cheers m’dears! Was panicking slightly, as obviously I knew this stuff 2 years ago (hence abbreviated notes) but can’t remember it now…makes me worry what other stuff I’ve forgotten!