- Mr Jones suffered burns and presented at hospital. His condition was not life-threatening.
- He was seen by two doctors, Dr Sejrup (2 years’ experience) and Dr Wilkes (5 months’ experience).
- The two doctors discussed and decided to put him under anaesthesia to treat the burns. They initially tried to administer nitrous oxide through a mask, but the mask covered the burns.
- They therefore decided to inject pentothal instead. Dr Wilkes administered the usual dose, however, the patient died.
- It was established he died because of the combination of the nitrous oxide and the pentothal.
- Mr Jones’ widow sued the hospital, and the hospital then tried to recover an indemnity from Dr Wilkes.
- Was Dr Wilkes required to indemnify the hospital for her negligence?
- The Court was scathing of the hospital board, stating that servants were rarely called upon to indemnify their masters, and when they were, it should only be where the master was an innocent party.
- Lord Denning held that this was not the case; the hospital board was also negligent (not just vicariously) as they had a duty of care to the patient as well, which they failed in putting two such inexperienced people in charge of anaesthesia.
- He also criticised the fact that Dr Wilkes was sued but Dr Sejrup was not, considering that he had approved the plan and was more experienced.
- That said, Dr Wilkes had not waited the appropriate time between administering each injection. As such, he attributed 20% liability to her, and 80% to the hospital.
- ‘My conclusion, therefore, is that the hospital board, in this case, was itself a tortfeasor which had no right to indemnity or contribution from any member of its staff, except in so far as the court thinks it just and equitable, having regard to the extent of that person’s responsibility for the damage.’ (Lord Denning, 871)
- ‘It would be in the highest degree unjust that the hospital board, by getting inexperienced doctors to perform their duties for them, without adequate supervision, should be able to throw all the responsibility on to those doctors as if they were fully experienced practitioners.’ (Lord Denning, 871)
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