Fox v Ministry of Defence

In negligence claims concerning medical clearance for dangerous sporting activity, the court assesses whether the doctor on the ground exercised reasonable skill and care in the circumstances. The fact that another expert would have adopted a more cautious approach does not itself establish breach. A doctor may rely on professional texts and clinical observations when assessing fitness. Liability also requires causation and loss: a modestly raised temperature cannot ground liability without evidence that it caused the injury. Alleged deficiencies in emergency facilities for an injury not sustained do not illuminate whether participation should have been permitted.

The claimant appealed from judgment for the defendant given by Mr John Leighton-Williams QC, sitting as a Deputy High Court Judge, on 25 June 2001. He alleged that he suffered a head injury during an Army boxing competition in Bosnia and that the Ministry was negligent in permitting him to box.

Following amendments to the claim, the remaining issues concerned the adequacy of the medical examinations, the decision to permit boxing when the claimant’s temperature was 37.4 degrees centigrade, and the absence of facilities for treating serious head injuries. The central questions were whether the judge applied the correct standard of care and whether the alleged breach was causative of the injury.

The appeal was dismissed unanimously. The Court of Appeal upheld the judge’s decision for the Ministry of Defence on liability.

1. Standard of care. The judge was required to determine the proper standard of care for the doctor conducting the examination on the ground. He did not elevate the doctor’s practice to the level of expert evidence merely by considering it. He was entitled to distinguish Dr Bristow’s highly skilled expert opinion from the standard reasonably expected of Dr Barker, who could rely on medical texts showing that his approach accorded with views in the profession.
2. Medical examination and fitness to box. Dr Barker had asked the appropriate questions, although the claimant gave an incomplete history. The claimant’s failure to disclose earlier problems did not result from any inadequacy in the taking of the history. A temperature of 37.4 degrees centigrade was within the range treated as normal by the texts available to Dr Barker. He also looked for signs of infection and dehydration and found none. He was therefore entitled to conclude that the claimant was sufficiently fit to box. The alternative, more cautious approach suggested by Dr Bristow did not establish breach.
3. Causation. Even if the temperature issue had been decided in the claimant’s favour, negligence required evidence of loss caused by the alleged breach. There was insufficient evidence that the temperature had any connection with the later head injury. The claimant boxed well for two rounds, no infection was found afterwards, and no evidence showed that an infection existed before the boxing.
4. Emergency facilities and trial direction. The alleged lack of facilities for treating subdural bleeding was irrelevant because that treatment was not ultimately required and did not assist in deciding whether the claimant should have been allowed to box. Although liability had been ordered to be tried before causation and quantum, the amended negligence claim could not realistically be determined without regard to causation.

The appeal was dismissed with costs. The appellant’s liability for any such costs was referred to the costs judge, with the court expressing the view that the Ministry would not pursue them against the appellant.

• Court of Appeal (Civil Division) — In [2002] EWCA Civ 435, the court dismissed the claimant’s appeal from the judgment of Mr John Leighton-Williams QC, sitting as a Deputy High Court Judge, given on 25 June 2001.