Glyn v McGarel-Groves

The scope of a professional’s duty is fixed by the express or implied retainer for the particular task. Where a veterinary surgeon attends as the owner’s vet while another vet treats the animal, a duty to observe and intervene where necessary may require the attending vet to ascertain the drugs and dosages being used and to discuss the treatment. A professional is not a passive bystander where those steps are necessary to make the accepted duty meaningful. Failure to obtain that information is a breach where the known risk would have required intervention and the harm would thereby have been avoided. The decision is fact-sensitive and does not impose a general supervisory duty in every case.

Anna, a top-class dressage mare, died from laminitis after a French veterinary surgeon administered cortico-steroid injections. Her owner, Jane McGarel-Groves, alleged that both the French vet and Philip Glyn, Anna’s regular veterinary surgeon, were negligent. Mr Glyn had attended at the owner’s request while the French vet examined and treated Anna.

The High Court found both vets in breach of duty and apportioned liability between them. Mr Glyn appealed against the finding that his contractual duty of care included a duty to enquire about the proposed drugs and dosages and to intervene where necessary. The central issue was the scope of his retainer and whether his failure to ask those questions constituted a breach.

Majority disposition. Gage and Rix LJJ dismissed the appeal. The decision rested on the contractual duty and breach found by the trial judge.

1. Scope of retainer. A professional’s duties must be related to the express or implied retainer. The court must not impose duties beyond what the professional was requested and undertook to do. The majority accepted that Mr Glyn’s attendance as the owner’s vet, his continuing involvement with Anna, the interests of the French team, the prior treatment history and his contemporaneous invoice supported a specific retainer extending beyond passive observation. The observations in [1979] Ch 384 did not prevent that conclusion because that case concerned a different issue involving an alleged general or continuing retainer.
2. Duty to understand and discuss treatment. On the facts, Mr Glyn’s duty to observe and intervene if treatment was remotely inappropriate or contrary to Anna’s welfare included a duty to ascertain precisely what cortico-steroids and dosages were to be administered. It also included a duty to discuss the proposed orthopaedic treatment with the treating vet. The duty was fact-sensitive and confined to the circumstances of this case.
3. Breach and causation. Mr Glyn knew that two cortico-steroids were to be used and that the hocks and back were to be injected. He also knew that a high dose carried a sufficient risk of laminitis to require discussion with the owner’s agent. By failing to ask about the drugs and dosages, he could not assess whether the treatment was inappropriate. Had he made the enquiry, he would have discovered the exceptionally high dose, intervened, and prevented the treatment and Anna’s death.

Rix LJ emphasised that the assessment of breach was fact-sensitive and that an appellate court should not readily interfere with the trial judge’s evaluation absent clear error. On the respondent’s notice, he considered that the findings could also support a wider retainer, but treated that issue as unnecessary to the result.

Ward LJ dissented. He considered that a duty to observe meant taking note of what was done and was less onerous than a duty to monitor or supervise. In his view, failure to enquire could not constitute breach of that limited duty, and the judge had elevated the duty without sufficient evidential basis. He would have allowed the appeal.

1. Court of Appeal (Civil Division). By a majority, dismissed Mr Glyn’s appeal against the finding of contractual professional negligence.
2. High Court of Justice, Queen’s Bench Division. Found Mr Glyn and the French veterinary surgeon in breach of duty and apportioned liability between them.