428

QUEEN'S BENCH DIVISION

1968

Hewer
Bryant
PAULL J.

[1969]

I cannot see that the situation in Duncan's case 1 4 was very different to the situation which constantly arises when a child is sent
to a boarding school, especially if the father is in the services and
is temporarily abroad so that the child may spend his or her holidays with relations or friends. Logically, in the way in which
Brook's case u and Duncan's case 16 were looked at, no child at a
public school would be in the custody of his father while he was
at school, or when he was staying in the holidays with a relative
or friend. Sir Joseph does not contend that this can be the law.
It follows from what I have said that in this case there can be
no question of the father's custody being terminated. It is true
that the infant was away from the home and might never return
again except for short periods. It is true that he was earning his
own living, but nothing h a d occurred which left the infant without anyone whose natural duty and natural conduct would be to
support the infant in any proper proceedings to be brought in
respect of the injuries. I find that the plaintiff has not proved
that he comes within the provisions of section 22 (2) (b) of the
Limitation Act, 1939.
Judgment for the defendant with
costs.
Solicitors: Lovell,
Wm. Easton & Sons.

White & King for Townsends,

14

1967
26 C ''27^

[1968] 1 Q.B. 747.

[1967] 1 W.L.R. 1336

Swindon;
S. S.

15

" [1968] 1 Q.B. 747.

BARNETT v. CHELSEA AND KENSINGTON HOSPITAL

MANAGEMENT COMMITTEE

Nov. 8

NiELD J.

[1966 B. No. 4886]

NegligenceHospitalCasualty departmentDepartment provided
and run by hospital management committeeCaller at department complaining of illness or injuryRelationship between committee and callerWhether relationship " close and direct"
Whether duty of care owed to caller by committeeSkill and
care to be expected of nurse and casualty officerDuty of
[Reported by EVERARD CORBALLY, ESQ., Barrister-at-Law.]

-,

1 Q.B.
\

**

*^

QUEEN'S BENCH DIVISION

casualty officerNegligence by casualty officerCaller complaining to nurse on duty and nurse reporting complaints to
casualty officer by telephoneCasualty officer not seeing caller
and advising by telephone that caller go homeSubsequent death
of callerPossibility of caller's death even if admitted to hospital
when complainingWhether
causation of death by negligence
established on balance of probabilities.
Burden
of proofNegligenceHospitalFailure
to examine
Whether their breach of duty caused damageWhether onus of
proof shifted.
At a hospital casualty department, provided and run by the
defendants, three fellow night-watchmen presented themselves,
complaining to a nurse on duty that they had been vomiting for
three hours after drinking tea. The nurse reported their complaints
by telephone to the duty medical casualty officer, who thereupon
instructed her to tell the men to go home to bed and call in
their own doctors. That she did. The men then left, and, about
five hours later, one of them died from poisoning by arsenic
which had been introduced into the tea; he might have died from
the poisoning even if he had been admitted to the hospital wards
and treated with all care five hours before his death.
In an action by his widow claiming that the death resulted
from the defendants' negligence in not diagnosing or treating
his condition when he presented himself at the casualty
department: :
Held, dismissing the action, (1) that, since the defendants
provided and ran the casualty department to which the deceased
presented himself complaining of illness or injury, such a close
and direct relationship existed between them and him that they
owed him a duty to exercise the skill and care to.be expected of
a nurse and medical casualty officer acting reasonably notwithstanding that he had not been treated and received into the
hospital wards (post, pp. 435E436B).
Dicta! of A. L. Smith L.J. in Le Lievre v, Gold [1893] 1 Q.B.
491, 504 and Lord Atkin in Donoghue v. Stevenson [1932] A.C.
562, 581 applied.
Cassidy V. Ministry of Health [1951] 2 K.B. 343; [1951] 1
All E.R. 574, C.A. distinguished.
(2) That the medical casualty officer was negligent in not
seeing and not examining the deceased, in not admitting him to
the wards and in not treating him or causing him to be treated
(post, pp. 437c-D, 438B); and that, accordingly, the defendants were
in breach of their duty to the deceased.
(3) But that, since he must have died of the poisoning even
if he had been admitted to the wards five hours before his death
and treated with all care, the plaintiff had failed to establish on
the balance of probabilities that the defendants' negligence had
caused the death; and that, therefore, the claim failed.
Per curiam. Casualty departments are misused from time to
time and it is not the case that a casualty officer must always see
1 Q.B. 1969.
16

429
1967
Baniett
v.
C
^jea
Kensington
Hos ital
P
Committee

430

QUEEN'S BENCH DIVISION

1967

Barnett
v.
''and*
Kensington
Moment
Committee

[1969]

the caller at his department, but apart from such cases the duty
f m e casualty officer is in general to see and examine all
patients coming to the casualty department of the hospital (post,
PP- 4 3 6 4 3 7 A )- T n e o n u s o f P r o o f remained upon the plaintiff
to show that the deceased died as a result of the defendants'
breach of dut

y <P0St> P'

438E

>-

ACTION.

The following statement of facts is taken substantially from

the judgment. William Patrick Barnett, the deceased, died from
arsenical poisoning at about 1.30 p.m. on January 1, 1966. At
the time of his death he was employed as a night-watchman at
the Chelsea College of Science and Technology. At about 9.30
p.m. on December 31, 1965, he reported for duty in company
with two other night-watchmen, Frederick Whittall and Herbert
Weighall, the senior watchman, and they had some drinks together
to celebrate the New Year. At about 4 a.m. on January 1, 1966,
Whittall was attacked and struck on the head with an iron bar by
an intruder, and in consequence was taken by the police to St.
Stephen's Hospital under the management of the Chelsea and
Kensington Hospital Management Committee, the defendants.
There he was received by a nurse and seen by the medical casualty
officer, who dressed Whittall's injuries and advised him to return
at 9.45 a.m. for an X-ray in order to make sure that there was no
bone injury. The deceased was then sent for and, in his car, he
drove Whittall from the hospital back to the college.
At about 5 a.m. all three watchmen shared some tea; some
of it came from a flask and some was freshly made in a teapot.
Immediately after drinking the tea, the deceased complained of
the heat in the room, and, within 20 minutes, all three men
started to vomit; the vomiting persisted until about 8 a.m. when
the day workers arrived at the college. The three watchmen
then made their way in the deceased's car, which he drove quite
normally, to the casualty department of St. Stephen's Hospital.
There was no one at the reception desk; there was no receptionist
on duty there during the night, although in the daytime a receptionist was stationed at the desk to take particulars of all who
called at the casualty department. The three men were able to
enter without hindrance; in the middle of the casualty department room, Weighall met Nurse Corbett, the nurse on duty, and
asked to see a doctor, informing the nurse that they had been
vomiting continuously since drinking the tea at 5 a.m. Whittall

**

**

1 Q.B.
A

j)

QUEEN'S BENCH DIVISION

431

1967
told her that he had been at the hospital earlier, had returned
to work, and that all three had been vomiting.
Bamett
v.
The deceased did not speak but lay down, on armless chairs Chelsea
placed together, with his head resting on his hand. It was obvious Kensington
to anyone that he was feeling ill and that the other two men M 2^Sent
were also feeling ill. Weighall's medical record card at the hos- Committee
pital showed a diagnosis of gastritis.
When Weighall first told the nurse that the vomiting followed
the drinking of tea, she replied: " Tea would not cause that."
Her first impression was that the men had been drinking to excess,
and she was hesitant as to what to do. After a delay of several
minutes Weighall became angry and demanded to see a doctor.
The nurse then spoke on the telephone, saying:
" Is that [the medical casualty officer]? There are three
men complaining of vomiting after drinking tea."
The doctor replied:
" Well, I am vomiting myself and I have not been drinking. Tell them to go home and go to bed and call in their
own doctors, except Whittall, who should stay because he is
due for an X-ray later this morning."
The nurse passed that message to the three men and they all
left the hospital, Whittall having decided not to stay because no
treatment had been suggested. The deceased drove them back
to the college.
As soon as they reached the college the deceased went into
the telephone room where he lay down with a cushion under his
head. Later in the morning he was seen by a member of the
college staff sitting on a packing case close to a radiator in the
hall. At approximately 1 p.m. a doctor retained by the college
was called to see the deceased, but by the time the doctor arrived
it was too late to do anything for him. He was taken back by
ambulance to St. Stephen's Hospital and found to be dead on
arrival. The hospital records showed the date and hour of arrival
as " 2 p.m. January 1, 1966" and previous known illness as
"gastritis and nausea and vomiting for some hours previously."
The coroner's verdict was one of murder by a person or persons
unknown.
The plaintiff, Bessie Irene Barnett, widow of the deceased
and administratrix of his estate, brought this action on behalf of
the estate, herself and two dependent children against the defendants, claiming damages on the grounds that the death was due
to the negligence of the defendants by their servants or agents

432

QUEEN'S BENCH DIVISION

[1969]

1967

in failing to investigate or diagnose the deceased's condition

Barnett
when he presented himself at the hospital, and in failing to treat
Cheisea
i m a s a c a s e f poisoning. The defendants denied negligence
anc
Kensington
* s P ec ifi ca Uy denied that any negligence on their part caused
Hospital the death of the deceased.
Management
, ,
,. , . ,
Committee
Further facts are stated in the judgment.

B
Peter Pain Q.C. and Stuart Shields for the plaintiff. The
casualty department is in a hospital for the purpose of healing
casualties. A casualty officer should personally see all casualties.
As to the duty of care owed by the hospital to the deceased, see
Gold v. Essex County Council,1 per Lord Greene M.R.,2 which
was approved in Cassidy v. Ministry of Health? A hospital is
under a duty of care to see patients. The defendants were negligent in not giving any treatment at all. To turn away a dying
man was a wrongful neglect. A casualty officer should normally
see all casualties. It is not necessary to prove that treatment
would have been effective. The deceased did not die until five or
six hours after he was turned away. He should have been kept
under observation at the hospital.
John Wilmers Q.C. and David Sullivan for the defendants.
Even if the deceased had been admitted and treated in the defendants' hospital, it would have made no difference; the deceased
must have died in any event. The fact that a hospital has a
casualty ward is not an invitation to treat everyone who enters.
The duty laid down in Cassidy v. Ministry of Health3 only
applies where hospital authorities accept a patient for treatment:
see per Denning L.J.* There is no authority directly on the point.
It is accepted that the casualty officer should have seen the
deceased, but the general duty of hospitals does not arise in this
case. It is not the law that every hospital has to see every person
who turns up for treatment. Many hospitals are still run by
charities and to impose on them the burden of accepting as a patient
everyone who presents himself might endanger their continued
existence and solvency. If a hospital accepts a patient, it has to
exercise reasonable care, a duty which can be discharged by referring him to a proper person; but no hospital is under a duty to
accept a patient and take responsibility for him. On the evidence,
however, it was clear that even if the deceased had been taken
1
3
[1942] 2 K.B. 293; [1942] 2
[1951] 2 K.B. 343; [1951] 1
All E.R. 237, C.A.
All E.R. 574, C.A.
2
4
[1942] 2 K.B. 293, 302.
[1951] 2 K.B. 343, 360.

1 Q.B.
A

QUEEN'S BENCH DIVISION

433

1967
into hospital, he could not have survived. [Reference was made
5
to Bolam v. Friern Hospital Management Committee. ]
Bamett
Pain Q.C. in reply. The duty of a hospital and its casualty
cheisea
department is to take proper professional care of all casualties Kensington
who present themselves. Proper investigation must be made. A Hospital
casualty department exists to deal with casualties, persons who Committee
have been subjected to accidents, i.e., any untold events causing
injuries. It was clearly the duty of the casualty officer to go
down and investigate the deceased's condition and that duty was
not discharged.
What flowed from the breach of duty? Although the burden
lay on the plaintiff to show that the damage was caused by the
wrongful act, once it was established, as it was, that the defendants
should have treated the deceased, the burden passed to them to
establish that the appropriate treatment would have failed. The
reason why there was no evidence of the cause of the deceased's
death lay in the defendants' breach of duty. A person cannot benefit from his own wrong. Proof of damage depended upon the
circumstances under which it was sustained: see the general
statement of principle of Bowen L.J. in Ratcliffe v. Evans.* The
rule as to the burden of proof was not a rigid rule to be followed
in all circumstances; regard must be taken of the nature of the
act by which the damage was done. [Reference was made to
Armory v. Delamirie7; The Ophelia8; and Goldman v. Hill.*]
Wilmers Q.C. on the cases cited in reply referred to Bonnington
Castings Ltd. v. Wardlaw.10

Cur. adv. vult.

F

November 8. NIELD J. At the outset of my judgment in this

case I propose to indicate the general conclusions which I have
reached. I do so for two reasons: the first, so that those who are
most nearly interested are not required to wait throughout a lengthy
judgment to know what my decision is; the second, so that counsel
may consider whether or no further argument is needed before
judgment is finally entered.
My conclusions are: that the plaintiff, Mrs. Bessie Irene
Barnett, has failed to establish, on the balance of probabilities, that
the death of the deceased, William Patrick Barnett, resulted from
5
[1957] 1 W.L.R. 582; [1957] 2
AUE.R. 118.
[1892] 2 Q.B. 524,532.
7
(1722) 1 Strange 505.
8
[1916] 2 A.C. 206, P.C.

9
[19191 1 K.B. 443
"[1956] A.C. 613; [1956] 2
W.L.R. 707; [1956] 1 All E.R. 615,
H.L.(Sc).
'

434

QUEEN'S BENCH DIVISION

1967

[1969]

the negligence of the defendants, the Chelsea and Kensington

Barnett
Hospital Management Committee, my view being that had all care
Cheisea
been taken, still the deceased must have died. But my further conKeiwSfgton c l u s i o n s a r e that the defendants' casualty officer was negligent in
Hospital failing to see and examine the deceased, and that, had he done so,
Committee his duty would have been to admit the deceased to the ward and to
nave
NIELD J.
treated him or caused him to be treated.
The plaintiff is the widow of the deceased, who died on January
1, 1966, from arsenical poisoning, and she is also the administratrix
of his estate. She claims damages on behalf of herself and two of
her children as dependants of the deceased and also on behalf
of his estate. The defendants were at all material times responsible
for the management of St. Stephen's Hospital, Chelsea.
[His Lordship stated the facts substantially as set out above,
stated that the point had been made that the watchmen might
have called in the college doctor instead of going to the hospital,
commented that they could not be in any way blamed for not
calling him in since they would not know the terms of his
appointment by the college and might well have hesitated before
disturbing him at an early hour, commented further that the
inference was that some person with murderous intent had introduced arsenic into the tea, and continued:] The plaintiff's case
is pleaded in this way:
" The said death was due to the negligence of the defendants
by their servants or agents in not diagnosing or treating the
deceased's condition."
It is put on behalf of the plaintiff that the defendants should
have inferred that the deceased was suffering, or might be suffering,
from poisoning; that they failed to investigate or diagnose the
deceased's condition when he presented himself at the hospital;
that they failed to treat him for poisoning, and they so failed
having knowledge of the history of vomiting.
I turn to consider the nature of the duty which the law imposes
upon persons in the position of the defendants and their servants
and agents. The authorities deal in the main with the duties of
doctors, surgeons, consultants, nurses and staff when a person is
treated either by a doctor at his surgery or the patient's home or
when the patient is treated in or at a hospital.
In Cassidy v. Ministry of Healthx Denning L.J. dealt with the
duties of hospital authorities and said 2 :
1
[1951] 2 K.B. 343; [1951] 1
All E.R. 574, C.A.

[1951] 2 K.B. 343, 360.

**

1 Q.B.
A

QUEEN'S BENCH DIVISION

435

" In my opinion authorities who run a hospital, be they local

1967
authorities, government boards, or any other corporation, are
Bamett
in law under the self-same duty as the humblest doctor; whenv.
Ch a
ever they accept a patient for treatment, they must use
^
reasonable care and skill to cure him of his ailment. The Kensington
hospital authorities cannot, of course, do it by themselves; Hospital
they have no ears to listen through the stethoscope, and no committee
hands to hold the surgeon's knife. They must do it by the
staff which they employ; and if their staff are negligent in NlELP Jgiving the treatment, they are just as liable for that negligence
as is anyone else who employs others to do his duties for him.
What possible difference in law, I ask, can there be between
hospital authorities who accept a patient for treatment, and
railway or shipping authorities who accept a passenger for
carriage? None whatever. Once they undertake the task,
they come under a duty to use care in the doing of it, and
that is so whether they do it for reward or not."
Here the problem is different and no authority bearing directly
upon it has been cited to me. It is to determine the duty of those
who provide and run a casualty department when a person
presents himself at that department complaining of illness or
injury and before he is treated and received into the hospital
wards.
This is not a case of a casualty department which closes its
doors and says that no patients can be received. The three
watchmen entered the defendants' hospital without hindrance,
they made complaints to the nurse who received them and she in
turn passed those complaints on to the medical casualty officer
and he sent a message through the nurse purporting to advise the
three men. Is there, on those facts, shown to be created a relationship between the three watchmen and the hospital staff such as
gives rise to a duty of care in the defendants which they owe to
the three men?
In Donoghue v. Stevenson,3 Lord Atkin referred4 to Le Lievre
v. Gold5 when A. L. Smith L.J. said 8 :
" ' The decision of Heaven v. Pender 7 was founded upon the
principle, that a duty to take care did arise when the person
or property of one was in such proximity to the person or
property of another that, if due care was not taken, damage
might be done by the one to the other.' I think that this
sufficiently states the truth if proximity be not confined to
mere physical proximity, but be used, as I think it is intended,
to extend to such close and direct relations that the act
3

[1932] A.C. 562, H.L.

* Ibid. 581.
5
[1893] 1 Q.B. 491.

Ibid. 504; quoted [1932] A.C.

562, 581.
7
(1883) 11 Q.B.D. 503.

436

QUEEN'S BENCH DIVISION

1967

Bamett
v.

[1969]

complained of directly affects a person whom the person

alleged to be bound to take care would know would be
directly affected by his careless act."

Chelsea

Kensington
* n m v J u d 8 m e n t . there was here such a close and direct
Hospital relationship between the hospital and the watchmen that there
Management

. ,

, . , .

Committee was imposed upon the hospital a duty of care which they owed
t0 tne
NIELD J.
watchmen. Thus I have no doubt that Nurse Corbett and
the medical casualty officer were under a duty to the deceased to
exercise that skill and care which is to be expected of persons in
such positions acting reasonably, or, as it is, I think very helpfully,
put by the learned author of Winfield on Torts, 7th ed. (1963), p.
183:
" Where anyone is engaged in a transaction in which he holds
himself out as having professional skill, the law expects him
to show the average amount of competence associated with
the proper discharge of the duties of that profession, trade
or calling, and if he falls short of that and injures someone
in consequence, he is not behaving reasonably."
And the author proceeds to give a warning that the rule must
be applied with some care to see that too high a degree of skill
is not demanded, and he gives the example: " a passer-by who
renders emergency first-aid after an accident is not required to
show the skill of a qualified surgeon."
Let me say at this stage that there is no complaint against
Nurse Corbett that she failed in her duty.
There are two main questions here: Has the plaintiff established, on the balance of probabilities, (1) that the medical casualty
officer was negligent, and, if so, (2) that such negligence caused the
death of the deceased?
The first of those questions can be divided into four other
questions. (1) Should the doctor have seen the deceased? (2)
Should he have examined the deceased? (3) Should he have
admitted the deceased to the wards? And (4) should he have
treated or caused to be treated the deceased? The first two
of those four questions can be answered together.
It is not, in my judgment, the case that a casualty officer must
always see the caller at his department. Casualty departments are
misused from time to time. If the receptionist, for example,
discovers that the visitor is already attending his own doctor and
merely wants a second opinion, or if the caller has a small cut
which the nurse can perfectly well dress herself, then the
casualty officer need not be called. However, apart from such

JJ

1 Q.B.
A

_,

QUEEN'S BENCH DIVISION

437

things as this, I find the opinion of the witness Dr. Sydney

^61
Lockett entirely acceptable. He saidand I give his words Bamett
as nearly as I can, not having had a shorthand writer:
Cheisea
" In my view, the duty of a casualty officer is in general to Kensington
see and examine all patients who come to the casualty M Hospital
department of the hospital."He then cited some exceptions Commktee
such as I have stated." When a nurse is told that three men

have been vomiting having drunk tea and have abdominal NlELD
pains her duty is to report it, and she should report accurately
to the doctor. The first step she should take to deal with the
matter is to take a history"and the doctor put it most
emphatically in this way"I cannot conceive that after a
history of vomiting for three hours a doctor would leave the
matter to a nurse, however experienced the nurse."
Without doubt the casualty officer should have seen and examined the deceased. His failure to do either cannot be described as
an excusable error as has been submitted. It was negligence. It is
unfortunate that he was himself at the time a tired and unwell
doctor, but there was no one else to do that which it was his duty
to do. Having examined the deceased I think the first and provisional diagnosis would have been one of food poisoning.
The third question is, should he have admitted the deceased to
the wards? It is sufficient to say that I accept Dr. Lockett's
opinion that, having regard to all the circumstances, it was the
casualty officer's duty to have admitted him.
The fourth question is, should the casualty officer have treated
the deceased or caused him to be treated? And it is the case
that, once admitted, the deceased's case could have gone to the
medical registrar or to others if such was the desire. The
immediate purpose of admission would be for observation and
diagnosis. No one who has listened to the evidence can doubt
that arsenical poisoning is extremely difficult to diagnose. Professor Camps accepted some figures put to him which were that,
out of 6,000 deaths between 1955 and 1965 from poisoning, only
five were due to arsenical poisoning. Again, that 3,000,000 or
4,000,000 people are admitted to about 5,000 hospitals in the
course of a year and only 60 were cases of arsenical poisoning or
potassium loss. I conclude that after a period of observation and
after taking the patient's blood pressure and subjecting him to
other general tests, and upon a reconsideration of the history,
in particular the fact that vomiting had occurred within 20
minutes of drinking the tea and also finding loss of fluid, the
doctor would have rejected the provisional diagnosis of food

438

QUEEN'S BENCH DIVISION

1967

Bamett
Cheisea
Kensington
Management
ommittee
NlELP J-

[1969]

or staphylococcal poisoning and have decided that it might well

have been a case of metallic poisoning. In any event, I am
satisfied that the deceased's condition of dehydration and severe
malaise was such that intravenous treatment should have been
given. Further, I think it would have become plain that it was
n e c e s s a r v t 0 t e s t a specimen of the deceased's blood and in the
end to send certain other specimens away for analysis to discover
what poison it was which was causing the deceased's condition.
Thus it is that I find that under all four headings the defendants
were negligent and in breach of their duty in that they or their
servants or agents did not see and did not examine and did not
admit and did not treat the deceased.
It remains to consider whether it is shown that the deceased's
death was caused by that negligence or whether, as the defendants
have said, the deceased must have died in any event. In his
concluding submission Mr. Pain submitted that the casualty officer
should have examined the deceased and had he done so he
would have caused tests to be made which would have indicated
the treatment required and that, since the defendants were at
fault in these respects, therefore the onus of proof passed to the
defendants to show that the appropriate treatment would have
failed, and authorities were cited to me. I find myself unable to
accept that argument, and I am of the view that the onus of proof
remains upon the plaintiff, and I have in mind (without quoting
it) the decision cited by Mr. Wilmers in Bonnington Castings Ltd.
v. Wardlaw* However, were it otherwise and the onus did
pass to the defendants, then I would find that they have discharged it, as I would proceed to show.
There has been put before me a timetable which I think
is of much importance. The deceased attended at the casualty
department at five or 10 minutes past eight in the morning. If
the casualty officer had got up and dressed and come to see the
three men and examined them and decided to admit them, the
deceased (and Dr. Lockett agreed with this) could not have been
in bed in a ward before 11 a.m. I accept Dr. Goulding's evidence
that an intravenous drip would not have been set up before 12
noon, and if potassium loss was suspected it could not have been
discovered until 12.30 p.m. Dr. Lockett, dealing with this, said:
" If this man had not been treated until after 12 noon the chances
of survival were not good."
8

[1956] A.C. 613; [1956] 2 W.L.R. 707; [1956] 1 All E.R. 615, H.L.(Sc).

1 Q.B.
A

j)

QUEEN'S BENCH DIVISION

439

Without going in detail into the considerable volume of

*967
technical evidence which has been put before me, it seems to
Bamett
me to be the case that when death results from arsenical poisoning
Chelsea
it is brought about by two conditions; on the one hand dehydra- Kensington
tion and on the other disturbance of the enzyme processes. If the
Hospital
. . ,
. . . .

,
.
,
,
Management
T
principal condition is one of enzyme disturbanceas I am of the Committee
view it was herethen the only method of treatment which is
NIELD J.
likely to succeed is the use of the specific antidote which is
commonly called B.A.L. Dr. Goulding said in the course of his
evidence:
" The only way to deal with this is to use the specific B.A.L.
I see no reasonable prospect of the deceased being given
B.A.L. before the time at which he died "and at a later
point in his evidence" I feel that even if fluid loss had
been discovered death would have been caused by the enzyme
disturbance. Death might have occurred later."
I regard that evidence as very moderate, and it might be a
true assessment of the situation to say that there was no chance of
B.A.L. being administered before the death of the deceased.
For those reasons, I find that the plaintiff has failed to
establish, on the balance of probabilities, that the defendants'
negligence caused the death of the deceased.
Judgment for the defendants.

E
Solicitors: W, H. Thompson; Nigel Ryland.

FAGAN v. COMMISSIONER OF METROPOLITAN POLICE

1968
June 28;
J/J>1,31

CrimeAssaultPoliceCar driven on to policeman's footDoubt

whether intentional or accidentalDeliberate delay in removing pARKER c.J.,
carMens reaActus reusWhether subsequent inception of
JAMES
mens rea capable of converting original unintentional act into an BR1GE JJ.
assault.
CrimeMens reaAssaultUnintentional batteryCar driven on to
policeman's footSupervening mens rea constituted by deliberate
delay in removing carWhether an assault.
A police constable wishing to question the defendant driver
directed him to park his vehicle at a precise space against the
kerb, whereupon the defendant drove his car on to the police
[Reported by

MRS. JENNIFER WINCH,

Barrister-at-Law.]