Law reports

PROFESSIONS

Surgeon failing to warn patient of slight risk of post-operative paralysis - operation performed without negligence but patient suffering paralysis following operation - surgeon liable in negligence for failure to warn

Chester v Afshar: CA (Lady Justice Hale, Sir Christopher Slade and Sir Denis Henry): 27 May 2002

The claimant, who had suffered several episodes of back pain, consulted the defendant, an eminent neurosurgeon.

He advised her that three intra-vertebral discs should be removed and did not warn her about any 'downside or risk whatever' involved in the operation.

She agreed to the operation reluctantly.

The defendant successfully carried out two surgical operations on the claimant.

After the operations, the claimant's right leg functions returned to normal but her left side progress was much slower and she suffered substantial disability to that leg by nerve damage.

She brought an action against the defendant in negligence.

The judge found that the defendant had not been negligent in conducting the operations but had been negligent in failing to warn the claimant of any possible risk involved in the operations.

The defendant appealed.

Martin Spencer (instructed by Hempsons) for the defendant; Jacqueline A Perry (instructed by Eversheds, Leeds) for the claimant.

Held, dismissing the appeal, that while a patient had a right to make a choice as to what should or should not be done to her body, a doctor owed a duty to take the care expected of a reasonable doctor in the circumstances in giving her the appropriate information to enable the patient to make a choice whether to consent to the particular operation to be carried out by the doctor; and that, since the defendant failed to inform the claimant about a possible risk of paralysis involved in the operation before she gave her consent, he was in breach of his duty of care to warn the claimant of the risk however slight it might have been, even though he had not been negligent in carrying out the operations.

PENSIONS

Pension based on final salary - regulations excluding remuneration for 'non-contractual' overtime from calculation - voluntary overtime 'non-contractual' even though contract providing rate of pay for overtime worked

Newham London Borough Council v Skingle and anor: ChD (Mr Justice Jacob): 23 May 2002

The pensioner retired from his job as caretaker of a community school.

His contract of employment had provided a rate of pay for overtime but had contained no term requiring him to do overtime.

The local authority calculated his pension on the basis of his final salary excluding remuneration for overtime which he had worked.

He took the matter to the Pension Ombudsman claiming maladministration arising from an error of law.

The Pension Ombudsman found that remuneration for his overtime should have been included as part of his final salary for the purposes of calculating his pension.

The local authority appealed.

Jacques Algazy (instructed by the head of legal services, Newham London Borough Council) for the local authority; Nicholas Randall (instructed by Thompsons) for the pensioner.

Held, allowing the appeal, that under the Local Government Pension Scheme Regulations 1997 (SI 1997/1612) the pensioner was not entitled to have money earned from 'non-contractual' overtime taken into account in the calculation of his pension; that non-contractual overtime meant overtime not called for by the contract, namely non-compulsory or voluntary overtime, and the mere provision in the contract of employment of a rate of pay if optional overtime were worked did not make the overtime contractual; and that, accordingly, the pensioner's overtime had been non-contractual and could not be take into account in the calculation of his pension.

TRADE

Proprietor's rights - infringement - use of claimant's trade mark in defendant Web site's invisible programming insufficient to found infringement

Reed Executive plc and another v Reed Business Information Ltd and others: ChD (Mr Justice Pumfrey): 20 May 2002

The claimants, who operated a Web site (www.reed.co.uk) and were proprietors of the trade mark 'Reed' which was registered in respect of employment agency services, brought an action for trade mark infringement against the defendant publishers who had recently started a Web site, totaljobs.com, which advertised job opportunities.

The claimant alleged, among other things, that the defendants had used the word 'Reed' in both the invisible programming underpinning the Web site and in the visual display of the site on the browser.

Geoffrey Hobbs QC and Emma Himsworth (instructed by Slaughter and May) for the claimants; Martin Howe QC and Amanda Michaels (instructed by DJ Freeman) for the defendants.

Held, giving judgment for the claimant, that the concept of use in the course of business as defined in section 10 of the Trade Marks Act1994 was wide enough to cover invisible use in the Web site's programming, but only if such use caused a visible display of the sign in the search results or on the Web site; that it would not normally be possible to prove loss merely by virtue of the fact that the site had appeared in the listed search results which had been returned by the search engine after a search for the trade mark term, if nothing in the search results or in the site itself used the infringing sign; but that, on the present facts, since the sign had appeared on the Web site but had since been removed, it was an appropriate case for damages but not for an injunction.

PRACTICE

Arbitration - judge dismissing application to set aside award for want of jurisdiction and refusing permission to appeal - Court of Appeal lacking jurisdiction to grant permission to appeal

Athletic Union of Constantinople v National Basketball Association and Others: CA (Lord Phillips of Worth Matravers MR, Lords Justice Robert Walker and Clarke): 28 May 2002

An arbitration was initiated under an agreement between the American and international basketball associations to resolve professional basketball players' employment disputes.

The applicant participated in the proceedings but challenged the arbitrator's jurisdiction.

Ruling that he had substantive jurisdiction, the arbitrator made an award.

On an application to the Commercial Court the applicant sought, among other things, to set aside the award under section 67 of the Arbitration Act 1996 on the ground of want of jurisdiction.

The judge dismissed the application and refused permission to appeal.

Lord Justice Rix granted permission to appeal.

The other parties applied to set aside the grant of permission.

Richard Spearman QC (instructed by Theodore Goddard) for the American association; Murray Shanks (instructed by Farrer & Co) for the international association.

The applicant did not appear and was not represented.

Held, granting the application and setting aside the permission to appeal, that the court had power under exceptional circumstances to set aside the grant of permission to appeal under the Civil Procedure Rules 1998, rule 52.9; that only the judge who heard the application to challenge the arbitrator's substantive jurisdiction under section 67 of the Arbitration Act 1996 could grant permission to appeal against the court's decision; and that, accordingly, the Court of Appeal lacked jurisdiction to grant permission to appeal.

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