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Is there a Right to Fight?
1228 of solace for the injured person and avoid the pillorying of a distinguished surgeon, this was such a case." The question for the court, however, was whether the surgeon had been negligent. The judge rejected the surgeon’s evidence that the nerve was out of place but accepted that he had not used excessive force, that the nerve was not covered by the usual protective scale, and that degenerative changes were present. amount
Evidence was given as to the condition of the inner ear observed during the exploratory second operation and, on that evidence, the judge had concluded the nerve was "bare" at the point where it was cut. He therefore gave judgment for the defendant health authority, who were responsible for the management of the Liverpool Ear, Nose and Throat Infirmary.
Appeal Dismissed Giving the leading judgment, Sir Edward Eveleigh said that the plaintiff appealed on the grounds that the judge was wrong in failing to find negligence as pleaded and in accepting the operating surgeon’s evidence that he did not use excessive force, and, further, that having rejected the surgeon’s evidence that the facial nerve was in an abnormal position the judge ought also to have rejected his evidence as to the amount of force used and also rejected his evidence that the bony covering of the facial nerve was missing. It was also argued that if the judge were right in accepting the surgeon’s evidence save as to the position of the facial nerve, then he ought to have found him negligent because the surgeon gave evidence that during the first operation he had only removed those granulations which he could see, and that during the second operation he had found granulations adherent to the facial nerve at the point where it was cut. The allegation of excessive force was not keenly developed in the Court of Appeal; the forefront of the appeal was that, as the nerve was in its proper position according to the findings of the judge, then the operating surgeon went too close to the nerve and was thus negligent. For this purpose counsel for the plaintiff relied on evidence given by the surgeon, which it was alleged indicated that the surgeon could not have been working in a proper and safe position if he had damaged the nerve. But that case was not pleaded. It was seized on from answers given in the course of the trial, and, in addition, the matter was not further investigated, the evidence being concerned with the question of excessive force. The argument of working too close to the nerve was not pursued before the judge; no objections to its introduction at trial were made by the plaintiff on the grounds that it was not pleaded. In any event, the judge rejected the explanation suggested. It was not open to the plaintiff to raise a case on appeal that was neither pleaded nor probed, merely seizing on something brought into the trial by the defence evidence. Further, Sir Edward Eveleigh said that the trial judge had misunderstood the significance of a letter written by the surgeon to the plaintiff in February, 1979, in which he had sought to explain what had happened and had drawn a diagram showing the nerve out of position, and, in effect, the judge was probably wrong in holding that the nerve was not out of place. The judge’s finding that there had not been excessive force during the operation should not be disturbed, and in all the circumstances the plaintiff’s appeal should be dismissed. Lord Justice Robert Goff and Lord Justice Browne-Wilkinson
agreed. Comment Res ipsa loquitur did not bring success to the plaintiff, the defence explanation (or a part of it) having been accepted as refuting the allegation of negligence. The appeal decision is fair to defendants, preventing as it does a windfall of unexpected evidence from
becoming the foundation of what amounts to a new cause of action being fought-in the Court of Appeal. However, the injured plaintiff in this case, having been unable to fix any blame, has still received no compensation for her injury. Though this may be good law, is it just? Ashcroft v Mersey Regional Health Authority. Browne-Wilkinson and Robert Goff LJJ and Sir Edward Eveleigh. Court of Appeal, Feb 7, 1985.
DIANA BRAHAMS, Barrister-at-law
Conference Is there
a
Right to Fight?
THE "right" to wage war was the subject of a conference organised by the Medical Association for Prevention of War in London on May 11 at the Royal Society of Medicine. In the solution of any problem, and here it is the prevention of war, action may be taken peripherally-for example, by disarmament-or centrally, by a change in conceptual thinking. The conference concentrated on the latter and questioned the traditional assumption that nations have a "right" to fight. Prof Ian Brownlie, QC, who holds a chair of public international law at Oxford and acted as counsel for Nicaragua in its case against the USA before the International Court of Justice, spoke about the availability of international law. It was readily used and particularly valuable in the commercial field, because no industry would invest in an undertaking unless it was based on a secure foundation of law. In matters of foreign policy, however, law was often neglected as an instrument for the settlement of disputes. Just as complex medical techniques were available but often remained unused because of lack of familiarity, so nations failed to use available but complex legal techniques. There were disputes beyond the reach of law-for example, when the basic differences between the disputants were too wide, or where fanaticism played a part, as in the war between Iran and Iraq. Dr Gwyn Prins, historian and fellow of Emmanuel College, Cambridge, believed that war had been rational until the 1860s. There had up to that time been proportionality between the amount of force used and the objectives to be achieved. There had been discrimination between military and non-military targets. But with the introduction of rapid transport, communication, and increased firepower, war had become indiscriminate and lacking in the principle of proportionality. The nuclear age had seen the militarisation of international relations. We must face the prospect of wires crossing and detonating a nuclear powder keg, he said. There could be a modern successor to the "Sarajevo Sequence", but Dr Prins thought we would acquire sufficient wisdom to avoid it. Dr Ronald Britton, a member of Psychoanalysts against Nuclear War, recalled the correspondence between Einstein and Freud in 1932. Einstein had asked him: "How is it possible for a small clique who want war to bend the will of the majority?" and "Is it possible to control man’s mental evolution so as to make him proof against the psychoses of hate and destruction?" Freud had been pessimistic. Man was innately aggressive and aggression played a part both in sexuality and in idealism. It could not be eliminated, but the opposing tendency-the development of emotional bonds between men enhanced by common interests and by identification-could be strengthened. There was a race between this development and the growing capacity of man to destroy himself, with the odds on the latter. Melanie Klein had been more optimistic; she had noted the tendency in children, after a spell of destructiveness, to reconciliation, repair, and healing. We were ambivalent, but love was stronger than hate. Dr Britton described the psychological characteristics of groups-mindless group loyality, hypertrophy of paranoid attitudes to outsiders, sharing of fantasy, and the unreal assessment of "the enemy". To counteract these tendencies, which increased the risk of war, conscious efforts were needed to monitor the world outside the thinking of the group and to construct the means of preventing warlike preparations. In 1947 the Japanese, apparently of their own free will, inserted a clause in their new constitution renouncing the "right" to wage war: "The right of belligerency will not be recognised". Martin Knottenbelt argued that this Article 9 (A9) challenged the Charter of the United Nations, which allowed nations to prepare for war and to use force in self-defence. Japan maintained that A9 was a rational response to the atomic era; and General MacArthur, who gave the policy his strong support, had been certain that it was the only way and that it would, in due course, be appreciated and adopted by other nations.
Evidence was given as to the condition of the inner ear observed during the exploratory second operation and, on that evidence, the judge had concluded the nerve was "bare" at the point where it was cut. He therefore gave judgment for the defendant health authority, who were responsible for the management of the Liverpool Ear, Nose and Throat Infirmary.
Appeal Dismissed Giving the leading judgment, Sir Edward Eveleigh said that the plaintiff appealed on the grounds that the judge was wrong in failing to find negligence as pleaded and in accepting the operating surgeon’s evidence that he did not use excessive force, and, further, that having rejected the surgeon’s evidence that the facial nerve was in an abnormal position the judge ought also to have rejected his evidence as to the amount of force used and also rejected his evidence that the bony covering of the facial nerve was missing. It was also argued that if the judge were right in accepting the surgeon’s evidence save as to the position of the facial nerve, then he ought to have found him negligent because the surgeon gave evidence that during the first operation he had only removed those granulations which he could see, and that during the second operation he had found granulations adherent to the facial nerve at the point where it was cut. The allegation of excessive force was not keenly developed in the Court of Appeal; the forefront of the appeal was that, as the nerve was in its proper position according to the findings of the judge, then the operating surgeon went too close to the nerve and was thus negligent. For this purpose counsel for the plaintiff relied on evidence given by the surgeon, which it was alleged indicated that the surgeon could not have been working in a proper and safe position if he had damaged the nerve. But that case was not pleaded. It was seized on from answers given in the course of the trial, and, in addition, the matter was not further investigated, the evidence being concerned with the question of excessive force. The argument of working too close to the nerve was not pursued before the judge; no objections to its introduction at trial were made by the plaintiff on the grounds that it was not pleaded. In any event, the judge rejected the explanation suggested. It was not open to the plaintiff to raise a case on appeal that was neither pleaded nor probed, merely seizing on something brought into the trial by the defence evidence. Further, Sir Edward Eveleigh said that the trial judge had misunderstood the significance of a letter written by the surgeon to the plaintiff in February, 1979, in which he had sought to explain what had happened and had drawn a diagram showing the nerve out of position, and, in effect, the judge was probably wrong in holding that the nerve was not out of place. The judge’s finding that there had not been excessive force during the operation should not be disturbed, and in all the circumstances the plaintiff’s appeal should be dismissed. Lord Justice Robert Goff and Lord Justice Browne-Wilkinson
agreed. Comment Res ipsa loquitur did not bring success to the plaintiff, the defence explanation (or a part of it) having been accepted as refuting the allegation of negligence. The appeal decision is fair to defendants, preventing as it does a windfall of unexpected evidence from
becoming the foundation of what amounts to a new cause of action being fought-in the Court of Appeal. However, the injured plaintiff in this case, having been unable to fix any blame, has still received no compensation for her injury. Though this may be good law, is it just? Ashcroft v Mersey Regional Health Authority. Browne-Wilkinson and Robert Goff LJJ and Sir Edward Eveleigh. Court of Appeal, Feb 7, 1985.
DIANA BRAHAMS, Barrister-at-law
Conference Is there
a
Right to Fight?
THE "right" to wage war was the subject of a conference organised by the Medical Association for Prevention of War in London on May 11 at the Royal Society of Medicine. In the solution of any problem, and here it is the prevention of war, action may be taken peripherally-for example, by disarmament-or centrally, by a change in conceptual thinking. The conference concentrated on the latter and questioned the traditional assumption that nations have a "right" to fight. Prof Ian Brownlie, QC, who holds a chair of public international law at Oxford and acted as counsel for Nicaragua in its case against the USA before the International Court of Justice, spoke about the availability of international law. It was readily used and particularly valuable in the commercial field, because no industry would invest in an undertaking unless it was based on a secure foundation of law. In matters of foreign policy, however, law was often neglected as an instrument for the settlement of disputes. Just as complex medical techniques were available but often remained unused because of lack of familiarity, so nations failed to use available but complex legal techniques. There were disputes beyond the reach of law-for example, when the basic differences between the disputants were too wide, or where fanaticism played a part, as in the war between Iran and Iraq. Dr Gwyn Prins, historian and fellow of Emmanuel College, Cambridge, believed that war had been rational until the 1860s. There had up to that time been proportionality between the amount of force used and the objectives to be achieved. There had been discrimination between military and non-military targets. But with the introduction of rapid transport, communication, and increased firepower, war had become indiscriminate and lacking in the principle of proportionality. The nuclear age had seen the militarisation of international relations. We must face the prospect of wires crossing and detonating a nuclear powder keg, he said. There could be a modern successor to the "Sarajevo Sequence", but Dr Prins thought we would acquire sufficient wisdom to avoid it. Dr Ronald Britton, a member of Psychoanalysts against Nuclear War, recalled the correspondence between Einstein and Freud in 1932. Einstein had asked him: "How is it possible for a small clique who want war to bend the will of the majority?" and "Is it possible to control man’s mental evolution so as to make him proof against the psychoses of hate and destruction?" Freud had been pessimistic. Man was innately aggressive and aggression played a part both in sexuality and in idealism. It could not be eliminated, but the opposing tendency-the development of emotional bonds between men enhanced by common interests and by identification-could be strengthened. There was a race between this development and the growing capacity of man to destroy himself, with the odds on the latter. Melanie Klein had been more optimistic; she had noted the tendency in children, after a spell of destructiveness, to reconciliation, repair, and healing. We were ambivalent, but love was stronger than hate. Dr Britton described the psychological characteristics of groups-mindless group loyality, hypertrophy of paranoid attitudes to outsiders, sharing of fantasy, and the unreal assessment of "the enemy". To counteract these tendencies, which increased the risk of war, conscious efforts were needed to monitor the world outside the thinking of the group and to construct the means of preventing warlike preparations. In 1947 the Japanese, apparently of their own free will, inserted a clause in their new constitution renouncing the "right" to wage war: "The right of belligerency will not be recognised". Martin Knottenbelt argued that this Article 9 (A9) challenged the Charter of the United Nations, which allowed nations to prepare for war and to use force in self-defence. Japan maintained that A9 was a rational response to the atomic era; and General MacArthur, who gave the policy his strong support, had been certain that it was the only way and that it would, in due course, be appreciated and adopted by other nations.