- Email: [email protected]
Medicine and the Law
1040
Medicine and the Law Libel Action against B.M.A. Settled dental surgeon who, with his colleagues, technique of intravenous injections of methohexitone, brought an action for libel against the British Medical Association and four individual defendants, a Birmingham team, over publication in the British Medical journal in 1969 of a contribution by them entitled" Physiological Responses to Intermittent Methohexitone for Conservative Dentistry ", which was based on 30 experiments, and an editorial article about the subject of the contribution. He claimed that the meanings to be attributed to the publications included allegations that the technique he used and advocated was likely to cause death and had several deaths associated with it. The British Medical Association and individual defendants denied that the words complained of were defamatory of the plaintiff, and they pleaded justification and fair information on a matter of public interest, fair comment, and publication on In reply the plaintiff pleaded that a privileged occasion. the defendants were actuated by malice. At the outset of the hearing on June 12, 1972, before Mr. Justice ACKNER, the defendants successfully applied for leave to amend their defence to include as further particulars of justification 500 experiments of a Sheffield team of which an account was published in Anœsthesia in January, 1971, under the title " A minimal increment methohexitone technique in conservative dentistry; a comparison with The hearing of treatment under local anæsthesia ". evidence of the plaintiff himself continued throughout June and until the end of July, when the courts rose for the Long Vacation. When the case was resumed on Oct. 24, his Lordship invited the parties in strong terms to consider settling the action; he was sure that counsel had emphasised to them that financial disaster would be an inevitable result one way or the other to one or more persons in the case if it ran its full length, being then in its 32nd day with the plaintiff’s evidence nowhere near completion. The hearing continued for several further days, and more than one adjournment was granted. On the 38th day counsel for the plaintiff said that they were all grateful for the time for discussion which had been given. It had become increasingly clear, as the case proceeded, that a full examination of the issues would require many months of further evidence and the attendance of a large number of medical and academic witnesses to express their opinions on the difficult scientific questions which arose for decision. Against that background the parties were happy to tell him that they had settled the action on the terms that it was discontinued, with all parties bearing their own costs, and that the agreed statement which counsel was making be made in open court with the concurrence of all concerned. The defendants all recognised that the plaintiff was a man of the highest integrity and skill and of outstanding ability as a dentist. He for his part withdrew any allegation against the defendants or any of them of dishonesty or impropriety. He recognised and acknowledged that the British Medical Journal had a right and duty to its readers and to the medical profession generally to publish articles such as that submitted to them by the individual defendants and to comment on them. Mr. Justice ACKNER said that the parties were to be congratulated on their good sense in settling the dispute. Although it was a libel action it involved long and detailed consideration of many aspects of dental anæsthesia—a surprisingly emotive subject. If the action had gone on it would undoubtedly have continued until at least Easter, if not beyond. Had that occurred, despite the lawyers’ The plaintiff, had developed
a
a
efforts in the background to settle, they doubtless would have been criticised when it ended. Since the settlement had been achieved about half-way through the plaintiff’s own case it might be borne in mind that it was largely through the strenuous efforts of their legal advisers, and for once they might receive perhaps a little commendation. Drummond-Jackson v. British Medical Association and Others. Queen’s Bench Division: Ackner, J. Oct. 31, 1972. Counsel and solicitors: Colin Duncan, Q.c., Brian Neill, Q.C., Richard Hartley, and John Camp (Agar-Hutton & Co.); David Hirst, Q.c., and Hugh Davidson (Woodham Smith & Greenwood); James Comyn, Q.c., and A. T. Hoolahan (Hempsons). L. NORMAN WILLIAMS,
Barrister-at-Law.
Bladder Cancer in Rubber Workers From 1947 C. and W. were employed by D. Ltd. at a tyre factory where, until 1949, ’Nonox S ’, an antioxidant manufactured by I.C.I., was used. Nonox S was a compound consisting largely of alpha and beta naphthylamines and containing a residue of impurities. In 1966 C. and W. were found to be suffering from bladder cancer, contracted as a result of exposure at work to fumes and In 1968 and 1969 they dust coming from nonox S. actions for for damages negligence against D. Ltd. brought and I.C.I. I.C.I. were ordered to pay E6000 damages to C. and £15,000 to W., and D. Ltd. E1000 to each. I.C.I.
appealed. The court (Lord Justice SACHS, Lord Justice MEGAW, and Lord Justice LAWTON) said that the principal issue was whether I.C.I. before the end of 1946, when C. and W. were first employed by D. Ltd., knew or ought to have realised that nonox S was, or contained, a carcinogenic substance involving a real risk of causing cancer of the bladder to persons working in rubber factories in which it was used. It was agreed by the parties and the experts that commercial nonox S as manufactured and sold by I.C.I. between 1926 and 1949 caused bladder cancer amongst the workers in the rubber industry. What was in issue was the chemical nature of the substance which was in fact the carcinogen. The evidence for inculpating the free amines, particularly the beta amine, in nonox S was very strong, and the court agreed with the judge that the free amine content was a material cause of the cancer in both cases. Contemporaneous documentary evidence proved that from about 1942 onwards I.C.I. knew that very small amounts of amine in the atmosphere, whether as dust or fumes, were a grave hazard to the health of those who came into contact with them. There was no evidence that I.C.I., before 1948, gave thought to what effect dust and fumes from nonox S would have on those using it in the rubber industry, but ample evidence that they gave much thought to the risks to which their own workers were exposed. It had been strongly contended that the actions were in reality claims against Dr. G., the divisional medical officer of I.C.I. from 1935 to 1947. I.C.I. and Dr. G. could not be treated as one for the purOn occasions I.C.I. had had to poses of the actions. weigh medical considerations against economical and administrative ones. It was as well to state plainly that a company’s responsibility for the proper discharge of all its duties lay squarely on the executive-the board or its committees-in the light of all the knowledge it had or reasonably ought to have had. It was not correct in law to attribute to a medical officer sole responsibility for all aspects of health problems in industry. His prime duty plainly was to care for the health of I.C.I.’s employees. In the judgment of the court I.C.I. were in a position to appreciate that D. Ltd.’s workers were at risk by 1943. The manufacturer’s duty to the purchaser’s workmen in a case such as this was the same as his duty towards his own
workmen, subject
to a
proviso
not
operativehere.
1041 It was I.C.I.’s duty to take all reasonable steps to satisfy themselves that nonox S was safe. As they ought to have realised its carcinogenic qualities before the time C. and W. were exposed to it, the plaintiffs must succeed and the appeal would be dismissed. Cassidy v. Dunlop Ltd. and Imperial Chemical Industries; Wright!1. Same. Court of Appeal: Sachs, Megaw, and Lawton L.JJ., Oct. 31, 1972.
Pension rights must be protected, whether or not the scheme is a recognised one, when a worker changes his job; a refund of the member’s own contributions will not be allowed as an alternative to a preserved pension for service. There will be absolute protection of accrued pension rights in the reserve scheme regardless of changes in
Counsel and solicitors: Cecil Clothier, Q.c., Peter Crawford, and Alexander Dawson (J. S. Copp, Esq.); John Stocker, Q.c., Murray Stuart-Smith, Q.c., and Norman Irvine (Pattinson & Brewer).
employment.
Obituary
CLARE Noorr, Barrister at-Law.
WELDON PATRICK TYRONE WATTS
Parliament Social
Security Bill
The Government’s Social Security Bill was presented in the House of Commons on Nov. 1. The Bill implements the proposals set out in the white-paper, " Strategy for Pensions ", published last September, the object being to " foster the development of both State and occupational schemes so that, working in partnership, they improve the provision employees can make for their old age and for their widows ". The Bill proposes that employees should have two retirement pensions-a flat-rate basic pension from the State, brought up to date every year, and a second, earnings-related, pension earned preferably through an occupational scheme, but, failing this, through the new State reserve pension scheme. Employers will be bound by the legislation to bring their occupational schemes up to a required standard if they and their employees are to be exempt from paying into the reserve pension scheme. The Government will be obliged by statute to review benefits and contributions annually; pensions will at least maintain their purchasing power. The present dual system of flat-rate and graduated contributions for employees will be replaced by wholly earnings-related contributions. Contributions will be collected through P.A.Y.E. and stamped cards for employees will be abolished. To finance the basic scheme, including contributions for industrial injuries benefit and the National Health Service, employees with weekly earnings above a minimum qualifying level will contribute through P.A.Y.E. 5-25% of all their earnings up to a ceiling of about 1½ times average earnings-about E48 a week in current terms. Employers will pay 7-5% of their employees’ P.A.Y.E. earnings up to the same ceiling. The lower-paid will pay less than at present and the higher-paid rather more. The Exchequer will continue to contribute about 18% of the combined contribution. The self-employed will continue to pay flat-rate contributions at about the present level of El.68 a week, and continue to receive flat-rate benefits. There will be no separate rates for young people, and the lower rate for women will, over a period of five years, be raised to the same level as the men’s contribution. The higher-paid self-employed will also have to pay an additional contribution towards the general cost of the basic scheme, but this will not affect benefit. The self-employed will not be included in the reserve pension scheme. To gain recognition an occupational scheme must provide a personal pension for a man at an annual rate of not less than 1% of total earnings on which basic scheme contributions were paid throughout his years of service in the scheme, with a widow’s benefit equal to half the husband’s minimum pension rate. The scheme will have to provide some protection against the erosion of the pension after award, and to have adequate financial backing. The reserve pension scheme will be fully funded, without subsidy, and financed solely by contributions from employers and employees and by the return on its investments.
M.S.Durh., F.R.C.S.E. Mr. W. P. T. Watts, formerly surgeon to the Royal Victoria Infirmary and the Hospital for Sick Children, Newcastle upon Tyne, died on Oct. 23, within a week of his 75th birthday. In the 1914-18 war he was in the R.F.C. and was wounded in aerial combat. On demobilisation he studied at the then
College of Medicine at Newcastle upon Tyne, and as a student was distinguished in rugby football, in which he took
an
active interest in student and county circles He graduated M.B. in 1922 and M.S.
throughout his life.
in 1928. As a surgical registrar and later assistant surgeon of the " old school " he bore an immense load of surgical emergency work, and his exceptional skill in this field and in general surgery made his services in great demand from his colleagues, both for their families and their patients. He was an outstanding clinical teacher and was respected and appreciated by the students who attended his clinic. He also held appointments as honorary surgeon to the Fleming Hospital for Children and in the Blyth Memorial Hospital, ultimately becoming senior consultant surgeon in the Royal Victoria Infirmary, which he served in all for 41 years. He recognised the importance of the B.M.A. in representing his profession, and after giving much time to its various activities was elected president when the Association met in Newcastle in 1953. His active participation in golf, shooting, and fishing was reduced when he suffered a neck injury while puntshooting from his beloved Holy Island, and it was typical of his courage that he then took up botanical and bird studies and photography and made a wonderful collection of colour slides of rare plants. He discovered two plants previously unknown to Holy Island. On retirement he made his home on the mainland opposite the island, where he was honorary warden with responsibility for conservation. As during his active professional life, he continued to spend many happy hours among the islanders, who held him in great respect and affection. Few men have achieved excellence in so many spheres, and he will be greatly missed by his friends. He is survived by his wife, formerly a consultant anaesthetist at the Royal Victoria Infirmary; their son was tragically killed in a road accident. T. H. B. EMMIE DOROTHY FENWICK M.B.E., M.R.C.S. Dr. E. Dorothy Fenwick, formerly in general practice in London and medical officer in charge of the maternity and child-welfare services for the Borough of Paddington, died on Oct. 29 at the age of 75. She came from a distinguished medical family-her father and three of her uncles were doctors-and was dedicated to a medical career from childhood. She obtained
Medicine and the Law Libel Action against B.M.A. Settled dental surgeon who, with his colleagues, technique of intravenous injections of methohexitone, brought an action for libel against the British Medical Association and four individual defendants, a Birmingham team, over publication in the British Medical journal in 1969 of a contribution by them entitled" Physiological Responses to Intermittent Methohexitone for Conservative Dentistry ", which was based on 30 experiments, and an editorial article about the subject of the contribution. He claimed that the meanings to be attributed to the publications included allegations that the technique he used and advocated was likely to cause death and had several deaths associated with it. The British Medical Association and individual defendants denied that the words complained of were defamatory of the plaintiff, and they pleaded justification and fair information on a matter of public interest, fair comment, and publication on In reply the plaintiff pleaded that a privileged occasion. the defendants were actuated by malice. At the outset of the hearing on June 12, 1972, before Mr. Justice ACKNER, the defendants successfully applied for leave to amend their defence to include as further particulars of justification 500 experiments of a Sheffield team of which an account was published in Anœsthesia in January, 1971, under the title " A minimal increment methohexitone technique in conservative dentistry; a comparison with The hearing of treatment under local anæsthesia ". evidence of the plaintiff himself continued throughout June and until the end of July, when the courts rose for the Long Vacation. When the case was resumed on Oct. 24, his Lordship invited the parties in strong terms to consider settling the action; he was sure that counsel had emphasised to them that financial disaster would be an inevitable result one way or the other to one or more persons in the case if it ran its full length, being then in its 32nd day with the plaintiff’s evidence nowhere near completion. The hearing continued for several further days, and more than one adjournment was granted. On the 38th day counsel for the plaintiff said that they were all grateful for the time for discussion which had been given. It had become increasingly clear, as the case proceeded, that a full examination of the issues would require many months of further evidence and the attendance of a large number of medical and academic witnesses to express their opinions on the difficult scientific questions which arose for decision. Against that background the parties were happy to tell him that they had settled the action on the terms that it was discontinued, with all parties bearing their own costs, and that the agreed statement which counsel was making be made in open court with the concurrence of all concerned. The defendants all recognised that the plaintiff was a man of the highest integrity and skill and of outstanding ability as a dentist. He for his part withdrew any allegation against the defendants or any of them of dishonesty or impropriety. He recognised and acknowledged that the British Medical Journal had a right and duty to its readers and to the medical profession generally to publish articles such as that submitted to them by the individual defendants and to comment on them. Mr. Justice ACKNER said that the parties were to be congratulated on their good sense in settling the dispute. Although it was a libel action it involved long and detailed consideration of many aspects of dental anæsthesia—a surprisingly emotive subject. If the action had gone on it would undoubtedly have continued until at least Easter, if not beyond. Had that occurred, despite the lawyers’ The plaintiff, had developed
a
a
efforts in the background to settle, they doubtless would have been criticised when it ended. Since the settlement had been achieved about half-way through the plaintiff’s own case it might be borne in mind that it was largely through the strenuous efforts of their legal advisers, and for once they might receive perhaps a little commendation. Drummond-Jackson v. British Medical Association and Others. Queen’s Bench Division: Ackner, J. Oct. 31, 1972. Counsel and solicitors: Colin Duncan, Q.c., Brian Neill, Q.C., Richard Hartley, and John Camp (Agar-Hutton & Co.); David Hirst, Q.c., and Hugh Davidson (Woodham Smith & Greenwood); James Comyn, Q.c., and A. T. Hoolahan (Hempsons). L. NORMAN WILLIAMS,
Barrister-at-Law.
Bladder Cancer in Rubber Workers From 1947 C. and W. were employed by D. Ltd. at a tyre factory where, until 1949, ’Nonox S ’, an antioxidant manufactured by I.C.I., was used. Nonox S was a compound consisting largely of alpha and beta naphthylamines and containing a residue of impurities. In 1966 C. and W. were found to be suffering from bladder cancer, contracted as a result of exposure at work to fumes and In 1968 and 1969 they dust coming from nonox S. actions for for damages negligence against D. Ltd. brought and I.C.I. I.C.I. were ordered to pay E6000 damages to C. and £15,000 to W., and D. Ltd. E1000 to each. I.C.I.
appealed. The court (Lord Justice SACHS, Lord Justice MEGAW, and Lord Justice LAWTON) said that the principal issue was whether I.C.I. before the end of 1946, when C. and W. were first employed by D. Ltd., knew or ought to have realised that nonox S was, or contained, a carcinogenic substance involving a real risk of causing cancer of the bladder to persons working in rubber factories in which it was used. It was agreed by the parties and the experts that commercial nonox S as manufactured and sold by I.C.I. between 1926 and 1949 caused bladder cancer amongst the workers in the rubber industry. What was in issue was the chemical nature of the substance which was in fact the carcinogen. The evidence for inculpating the free amines, particularly the beta amine, in nonox S was very strong, and the court agreed with the judge that the free amine content was a material cause of the cancer in both cases. Contemporaneous documentary evidence proved that from about 1942 onwards I.C.I. knew that very small amounts of amine in the atmosphere, whether as dust or fumes, were a grave hazard to the health of those who came into contact with them. There was no evidence that I.C.I., before 1948, gave thought to what effect dust and fumes from nonox S would have on those using it in the rubber industry, but ample evidence that they gave much thought to the risks to which their own workers were exposed. It had been strongly contended that the actions were in reality claims against Dr. G., the divisional medical officer of I.C.I. from 1935 to 1947. I.C.I. and Dr. G. could not be treated as one for the purOn occasions I.C.I. had had to poses of the actions. weigh medical considerations against economical and administrative ones. It was as well to state plainly that a company’s responsibility for the proper discharge of all its duties lay squarely on the executive-the board or its committees-in the light of all the knowledge it had or reasonably ought to have had. It was not correct in law to attribute to a medical officer sole responsibility for all aspects of health problems in industry. His prime duty plainly was to care for the health of I.C.I.’s employees. In the judgment of the court I.C.I. were in a position to appreciate that D. Ltd.’s workers were at risk by 1943. The manufacturer’s duty to the purchaser’s workmen in a case such as this was the same as his duty towards his own
workmen, subject
to a
proviso
not
operativehere.
1041 It was I.C.I.’s duty to take all reasonable steps to satisfy themselves that nonox S was safe. As they ought to have realised its carcinogenic qualities before the time C. and W. were exposed to it, the plaintiffs must succeed and the appeal would be dismissed. Cassidy v. Dunlop Ltd. and Imperial Chemical Industries; Wright!1. Same. Court of Appeal: Sachs, Megaw, and Lawton L.JJ., Oct. 31, 1972.
Pension rights must be protected, whether or not the scheme is a recognised one, when a worker changes his job; a refund of the member’s own contributions will not be allowed as an alternative to a preserved pension for service. There will be absolute protection of accrued pension rights in the reserve scheme regardless of changes in
Counsel and solicitors: Cecil Clothier, Q.c., Peter Crawford, and Alexander Dawson (J. S. Copp, Esq.); John Stocker, Q.c., Murray Stuart-Smith, Q.c., and Norman Irvine (Pattinson & Brewer).
employment.
Obituary
CLARE Noorr, Barrister at-Law.
WELDON PATRICK TYRONE WATTS
Parliament Social
Security Bill
The Government’s Social Security Bill was presented in the House of Commons on Nov. 1. The Bill implements the proposals set out in the white-paper, " Strategy for Pensions ", published last September, the object being to " foster the development of both State and occupational schemes so that, working in partnership, they improve the provision employees can make for their old age and for their widows ". The Bill proposes that employees should have two retirement pensions-a flat-rate basic pension from the State, brought up to date every year, and a second, earnings-related, pension earned preferably through an occupational scheme, but, failing this, through the new State reserve pension scheme. Employers will be bound by the legislation to bring their occupational schemes up to a required standard if they and their employees are to be exempt from paying into the reserve pension scheme. The Government will be obliged by statute to review benefits and contributions annually; pensions will at least maintain their purchasing power. The present dual system of flat-rate and graduated contributions for employees will be replaced by wholly earnings-related contributions. Contributions will be collected through P.A.Y.E. and stamped cards for employees will be abolished. To finance the basic scheme, including contributions for industrial injuries benefit and the National Health Service, employees with weekly earnings above a minimum qualifying level will contribute through P.A.Y.E. 5-25% of all their earnings up to a ceiling of about 1½ times average earnings-about E48 a week in current terms. Employers will pay 7-5% of their employees’ P.A.Y.E. earnings up to the same ceiling. The lower-paid will pay less than at present and the higher-paid rather more. The Exchequer will continue to contribute about 18% of the combined contribution. The self-employed will continue to pay flat-rate contributions at about the present level of El.68 a week, and continue to receive flat-rate benefits. There will be no separate rates for young people, and the lower rate for women will, over a period of five years, be raised to the same level as the men’s contribution. The higher-paid self-employed will also have to pay an additional contribution towards the general cost of the basic scheme, but this will not affect benefit. The self-employed will not be included in the reserve pension scheme. To gain recognition an occupational scheme must provide a personal pension for a man at an annual rate of not less than 1% of total earnings on which basic scheme contributions were paid throughout his years of service in the scheme, with a widow’s benefit equal to half the husband’s minimum pension rate. The scheme will have to provide some protection against the erosion of the pension after award, and to have adequate financial backing. The reserve pension scheme will be fully funded, without subsidy, and financed solely by contributions from employers and employees and by the return on its investments.
M.S.Durh., F.R.C.S.E. Mr. W. P. T. Watts, formerly surgeon to the Royal Victoria Infirmary and the Hospital for Sick Children, Newcastle upon Tyne, died on Oct. 23, within a week of his 75th birthday. In the 1914-18 war he was in the R.F.C. and was wounded in aerial combat. On demobilisation he studied at the then
College of Medicine at Newcastle upon Tyne, and as a student was distinguished in rugby football, in which he took
an
active interest in student and county circles He graduated M.B. in 1922 and M.S.
throughout his life.
in 1928. As a surgical registrar and later assistant surgeon of the " old school " he bore an immense load of surgical emergency work, and his exceptional skill in this field and in general surgery made his services in great demand from his colleagues, both for their families and their patients. He was an outstanding clinical teacher and was respected and appreciated by the students who attended his clinic. He also held appointments as honorary surgeon to the Fleming Hospital for Children and in the Blyth Memorial Hospital, ultimately becoming senior consultant surgeon in the Royal Victoria Infirmary, which he served in all for 41 years. He recognised the importance of the B.M.A. in representing his profession, and after giving much time to its various activities was elected president when the Association met in Newcastle in 1953. His active participation in golf, shooting, and fishing was reduced when he suffered a neck injury while puntshooting from his beloved Holy Island, and it was typical of his courage that he then took up botanical and bird studies and photography and made a wonderful collection of colour slides of rare plants. He discovered two plants previously unknown to Holy Island. On retirement he made his home on the mainland opposite the island, where he was honorary warden with responsibility for conservation. As during his active professional life, he continued to spend many happy hours among the islanders, who held him in great respect and affection. Few men have achieved excellence in so many spheres, and he will be greatly missed by his friends. He is survived by his wife, formerly a consultant anaesthetist at the Royal Victoria Infirmary; their son was tragically killed in a road accident. T. H. B. EMMIE DOROTHY FENWICK M.B.E., M.R.C.S. Dr. E. Dorothy Fenwick, formerly in general practice in London and medical officer in charge of the maternity and child-welfare services for the Borough of Paddington, died on Oct. 29 at the age of 75. She came from a distinguished medical family-her father and three of her uncles were doctors-and was dedicated to a medical career from childhood. She obtained