Chapter 6
Negligence
A The Legal Perspective
Charles Foster
Lawyers use the word negligence', confusingly, in two ways. First, they use it to describe a particular type of fault ± a fault whose characteristics are defined by a number of legal decisions. Negligence in this respect can be either criminal leading to prosecution) or civil leading to an action in the civil courts for money). And second, they use it to describe that which must be proved in order for a claimant to succeed in recovering money damages') in respect of damage which
is caused by that fault. When used in this second sense, they are referring to the
tort of negligence. Atort is simply a legal wrong which does not involve a breach of
contract.
This chapter is concerned mostly with the tort of negligence. But criminal
negligence is important too. Medical manslaughter features commonly in the
newspapers. When a doctor is charged with killing a patient accidentally, he will
be convicted by the Crown Court of manslaughter if the jury finds that he has been
grossly negligent ± so negligent that his action or inaction deserves the penalty of
criminal conviction [1]. This definition of gross negligence is of course circular: it
comes down to saying someone should be convicted if he should be convicted.
Precisely the same principles apply to the liability of a nurse for manslaughter, but
as yet there are no reported English cases in which a nurse has been successfully
prosecuted for manslaughter arising out of a breach of her professional duty to a
patient.
The vast majority of medico-legal cases concern the civil law of negligence. They
are tried in the County Court or the High Court depending on their value and/or
their complexity) by a judge sitting alone, without a jury. Only a tiny proportion
will ever get to court. Most are settled or abandoned long before trial. Of those
which do get to trial, most are decided in the defendant's favour. Clinical negli-
gence cases are notoriously difficult for claimants to win. Some of the reasons for
this will appear in this chapter.
It is very rare for nurses to be sued individually. If a nurse has been negligent,
generally the employing Health Authority, NHS Trust, private hospital or clinic will
be sued. This is a consequence of the doctrine of vicarious liability, which states
that employers are liable for the torts of their employees when the act or omission
which constitutes the tort occurred in the course of the employment. This doctrine
does not absolve the employee from responsibility: the claimant can sue the