Roe v Minister of Health

In the English law of tort, "Roe v Minister of Health" [1954] 2 AER 131 is a decision of the Court of Appeal of England and Wales which has had a significant influence on the common law throughout the common law world.

The facts

Roe and another patient underwent surgery in a hospital managed under the general supervision of the Minister of Health. Before entering the operating theatre, an anaesthetic consisting of Nupercaine was administered by means of a lumbar puncture. At that time, it was common practice to store such anaesthetic in glass ampoules immersed in a phenol solution to reduce the risk of infection. Unknown to the staff, the glass had a number of micro-cracks which were invisible to the eye but which allowed the phenol to penetrate. When used, the phenol-contaminated anaesthetic caused permanent paraplegia.

The law

As the law then stood, to find negligence proved, there must be a duty of care, the defendant must have breached that duty, and that breach must have caused the loss or damage sustained by the plaintiff. The standard of care required of defendants was judged by applying an objective test, considering what a reasonable "man" would or would not have done in the same situation: the hypothetical "man" on the Clapham omnibus was first mentioned by Bowen LJ. in "McQuire v Western Morning News" (1903) 2 KB 100. In "Hall v Brooklands Auto Racing Club" (1933) 1 KB 205, it was held that it was the duty of the operators to ensure that the racing track they had designed was as free from danger as reasonable care and skill could make it, but that they were not insurers against accidents which no reasonable diligence could foresee. Similarly, in "Glasgow Corporation v Muir" (1943) 2 AER 44, a defendant was not negligent in allowing a group to enter a tea room to escape bad weather, because the reasonable "man" would not have foreseen that these invitees would injure any of the other customers.

The decision

Denning LJ. said, “We must not look at the 1947 incident with 1954 spectacles.” It was held that the micro-cracks were not foreseeable given the prevailing scientific knowledge of the time. Thus, since no reasonable anaesthetist would have stored the anaesthetic differently, it was inappropriate to hold the hospital management liable for failing to take precautions. That the profession had changed its practice in the light of experience proved that the profession was responsible in its self-regulation. In 1954, anaesthetists coloured the phenol with a dye. If a vial became contaminated, the dye showed inside the vial. These vials were then discarded. But, given that the hospital was applying the best practice of the time, there was no negligence.