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In the civil law of tort, a duty of care falls on anyone who is placed in a position where he can, as a reasonable individual, foresee that his actions may cause harm to others. A tort (called delict in Scots law) is a wrongful act or omission, other than a breach of contract, in respect of which damages can be claimed by the victim from the wrongdoer in respect of loss or injury. The duty is to take the care which the reasonable man would have taken in all the circumstances of the case. Who is the reasonable man? He is the average, ordinary man ‘on the Clapham omnibus’, as one Victorian judge put it. If he holds himself out as having a particular skill, like a doctor, nurse, solicitor or accountant, he is judged by the standard of the reasonable average member of his branch of the profession; if an action is taken in the courts this standard will be explained by expert witnesses drawn from the same profession. That the standard of care expected from a member of the health care professions is that of a reasonable member of the profession was established for doctors in the case of Bolam v. Friern Hospital Management Committee (1957), subsequently always referred to as the Bolam test. In the case of Bolitho v. City and Hackney HA (1998) the House of Lords held that the standard of care was that of ‘responsible, reasonable and respectable’ practitioners. After this, medical expert witnesses have to demonstrate the reasonableness of their opinion, usually by citing published research, rather than relying on an assertion that their eminence dictates that their views must be respected.

A failure to take reasonable care will not in itself give rise to a civil action for damages: there must also be damage to a claimant or claimants. (The law of negligence is examined more fully in Chapter 6). An instructive case was that of Stokes v. GKN (Nuts and Bolts) Ltd (1968). Mr Stokes was frequently required in the course of his employment as a tool‐setter by GKN to lean over oily machines. He died of scrotal cancer after 15 years’ employment. The risk of cancer from mineral oil was established by research from the late 1940s. In 1960, the then Factory Inspectorate published a leaflet advising employers to give warnings to and monitor those who worked with mineral oil. GKN employed Dr Lloyd as a full‐time OH physician; although he realised the risk, especially as another employee in the same factory had died of scrotal cancer in 1963, Dr Lloyd decided that the risk was too small to make periodic inspections and warnings necessary. Stokes died in 1966 and it was held that if he had been warned earlier he might have survived.

The judge recognised the dilemma of the OH physician:

A factory doctor when advising his employers on questions of safety precautions is subject to pressures and has to give weight to considerations which do not apply as between a doctor and his patient and is expected to give, and in this case regularly gave, to his employers advice based partly on medical and partly on economic and administrative considerations. For instance he may consider some precaution medically desirable but hesitate to recommend expanding his department to cope with it, having been refused such expansion before; or there may be questions of frightening workers off the job or of interfering with production.

Dr Lloyd had seen one man in 1962 who had been advised by a specialist and his GP to cease working with oil; Dr Lloyd told him to stay at work to keep up his earnings. He had given a talk to the works council in 1963 about the importance of changing working clothes; he had mentioned scrotal cancer in the talk but it had been omitted from the minutes which were generally distributed because they were read by both sexes! It was held that the doctor was negligent in not warning and testing the workers. As he was an employee, GKN were held vicariously liable for his negligence and had to pay damages to Mr Stokes’ widow.

Compare with Brown v. Rolls‐Royce (1960) in which an employee contracted dermatitis through contact with machine oil. The employers did not supply barrier cream, about which at the time there was a division of opinion in the medical profession. The employers relied on their medical officer, Dr Collier, and on his advice barrier cream was not one of the precautions required, though most other employers did supply it. The court held that there was no negligence, because it had not been proved that barrier cream was an effective precaution against dermatitis in this job.

A number of different points arise from these cases:

1 They demonstrate the inherent dilemma in the position of the OH professional with duties to both employee and employer, but they also illustrate that the primary duty is to the employee. With respect to the judge in Stokes, it is not the job of the doctor or nurse to balance the books. Of course, the OH department must exercise common sense and tact when dealing with both management and trade unions. There will be some suggested changes to the working environment which will make life more pleasant but are not absolutely necessary, and others which are needed to protect against harm. Therein lies the importance of the expertise of the specialist. He must be able to present information about the likely medical risks (based on his reading of official publications and the results of research published in medical journals) to management so that they can make an informed decision. He should also have some knowledge of possible precautionary measures and their efficacy. If he finds evidence that there is a real risk of injury, it is his duty to communicate it to the employers, however much preventive measures may cost. He cannot thereafter be held responsible if they do not take his advice, though this may eventually be held to be negligence by the managers. In the long run it may prove cheaper to spend money on precautions now than on damages later, quite apart from the human costs.In a case heard in 1984, James Kellett claimed damages for industrial deafness sustained in the course of his employment in the British Rail Engineering works at Crewe. He was first provided with ear muffs in 1979. His case rested mainly on the argument that he should have been provided with hearing protection at a much earlier date. In a previous decision relating to shipbuilders (Thompson v. Smith’s Shiprepairers (1984)), the court had set the date when the average British employer should have taken precautions against noise‐induced hearing loss at about 1963 when a government report, Noise and the Worker, was published. However, in British Rail’s employ in the early 1950s was a Divisional Medical Officer at Eastleigh, a Dr Howkins. This exemplary physician wrote to the Chief Medical Officer of BR in 1951 that he had tested samples of ear defenders in the boiler shops and had found them particularly effective. A request from him and from the works committee that the defenders should be provided free of charge was rejected by management because of the cost (1s 3d a pair). In 1955 a proposal from a consultant physician to do research into industrial deafness in the workshops at Swindon was rejected by BR management partly because of fears that it might precipitate claims for damages from the workers. Because of this evidence, the judge in Mr Kellet’s case set the date at which BR should have provided ear defenders as 1955, eight years earlier than for industry generally (Kellett v. BR Engineering). This may not seem so significant until it is appreciated that there were over 2000 claims for industrial deafness made against BR and that the earlier date substantially increased the measure of damages in nearly every case.

2 They show that the employer is vicariously liable in civil law for the negligence of OH professionals as long as they are directly employed. The employer may also be liable for the negligence of an independent consultant in some circumstances following the extension by the courts of the rules on vicarious liability in recent case law (Chapter 6).

3 They demonstrate how important it is to keep up‐to‐date, especially with government publications. Another case, Burgess v. Thorn Consumer Electronics Ltd (1983), concerned a Guidance Note from the HSE about tenosynovitis. This was received by Thorn at their factory at Bexhill, but the personnel department failed to recognise it as an occupational hazard for the workers. At the factory, there was no specialist OH assistance; the ‘surgery’ was staffed by first‐aiders. It was held that the employer was negligent in not warning Mrs Burgess that if she started having pains in her wrist or arm she should see her doctor immediately. If she had been warned the condition could have been diagnosed before surgery was needed.

Doctors have taken the attitude that, when they examine an applicant for a job or for insurance or entry to a pension fund, they are not in a doctor/patient relationship with that person. They see themselves having three forms of contact with patients: the traditional therapeutic relationship, that of the impartial medical examiner reporting to a third party, and that of the research worker. The implication for some doctors is that they are not as strictly bound by ethical duties in the second and third situations.

The absence of a patient/physician relationship may result in the absence of an unambiguous duty of the physician to uncover disease, disclose medical data to the patient, advise the employee of risks of further exposure, and protect the confidentiality of the information disclosed and the advice given.

(Samuels: Medical Surveillance, Journal of Occupational Medicine, Aug. 1986)

In previous editions of this book, I doubted whether this was an accurate reflection of the legal position. My view was supported by the High Court in Baker v. Kaye (1997). Mr Baker was a television sales executive. He was offered employment by NBC Europe, a subsidiary of General Electric (GE), as director of international sales. The offer, contained in a letter from GE’s human resources manager, was to take effect from 1 March, subject to a satisfactory medical report from the company doctor, Dr Kaye. Mr Baker heard of the offer while attending a trade convention in Monte Carlo. On his return he attended Dr Kaye’s office for the pre‐employment assessment, in the course of which a blood sample was taken. When Dr Kaye received the results of the test, he considered that there was evidence of over‐indulgence in alcohol. He telephoned the company to ask about the nature of the job, and was told that it was stressful, involving a high degree of responsibility, a great deal of business entertaining and frequent trips abroad. Dr Kaye knew that the company was intolerant of heavy drinking. He arranged to see Mr Baker again and asked about his alcohol consumption. Mr Baker admitted to having drunk slightly more than usual when he was in Monte Carlo. Dr Kaye took a second sample of blood and advised him to consult his GP, who recommended that he abstain from alcohol for several days, after which she would repeat the tests. Meanwhile, Mr Baker, not anticipating any serious problems, resigned from his previous job.

When Dr Kaye received the results of the second test he concluded that Mr Baker had an alcohol problem. He discussed the results with a medical colleague, a consultant gastroenterologist, and with GE’s former Medical Officer, both of whom agreed with him. He informed the company that he was unable to recommend Mr Baker (though not, of course, giving the reason) and told Mr Baker of what he had done, and why. Mr Baker did not get the job. Tests taken by his GP after a short period of abstinence showed substantial improvement and after two weeks were within normal limits. A month later Professor McIntyre, a consultant physician, examined Mr Baker and advised that there was no evidence of liver damage.

Mr Baker was now in the position that he had unconditionally resigned from his previous job and had not been appointed to the new one, since the offer of employment had been conditional on the satisfactory report of the OH physician. He sued the physician for negligence, claiming damages for loss of the GE post. The case raised the question of whether a medical practitioner retained by an employer to carry out pre‐employment medical assessments of prospective employees owes a duty of care to the prospective employee. It was held that he does. Three features of the relationship were considered of particular importance. The first was that the defendant knew that the plaintiff’s employment depended on the assessment, the second that he regarded himself as under a duty of confidentiality towards the patient, and the third that the defendant regarded himself as under a duty to the plaintiff to advise him to seek medical advice if any health problems were disclosed by the examination. There was no conflict between the doctor’s duty to the company, and that towards the prospective employee. The duty was to take reasonable care in arriving at a judgment whether or not to recommend the plaintiff for employment, bearing in mind the company’s requirements.

Was Dr Kaye negligent? The plaintiff was supported by the expert evidence of Professor McIntyre and of Dr Cockcroft, a consultant in occupational medicine. The defendant called Sir Anthony Dawson, an independent health care consultant. It was held that, on the facts, Dr Kaye was not negligent. The judge decided that it was not essential to explore the plaintiff’s absenteeism record, because of the high degree of independence enjoyed by senior managers (a more junior employee might be different). He decided that it was not essential to weigh the plaintiff (Mr Baker was ‘clinically corpulent’). He decided that a substantial body of reasonable medical opinion would have arrived at the same conclusions as Dr Kaye about the blood tests. Mr Baker lost the action.

The view that a doctor owes a duty of care to a job applicant, at least as regards physical harm, is supported by the decision of the Court of Appeal in R v. Croydon Health Authority (1997). A radiologist examined a woman who was a job applicant. He negligently failed to report to the OH physician the evidence of primary pulmonary hypertension disclosed by a pre‐employment x‐ray. The court held that there was a duty of care imposed by law on the radiologist to the job applicant in relation to the pre‐employment assessment.

In a subsequent case in 1998, Kapfunde v. Abbey National, the Court of Appeal disagreed with the decision in Baker v. Kaye. Mrs Kapfunde applied for a job with the Abbey National and completed a medical questionnaire disclosing details of her sickness absence record in her previous employment. The questionnaire was reviewed by Dr Daniel, Abbey National’s independent OH physician, who advised that the applicant’s medical history indicated that she was likely to have a higher than average absence level; she suffered from sickle cell anaemia. Mrs Kapfunde, who was not considered for the job, sued the Abbey National as Dr Daniel’s employer, arguing that Dr Daniel was negligent. The court held, first, that Dr Daniel was not an employee but an independent contractor, so that Abbey National could not be vicariously liable for her. Secondly, they decided that in any event Dr Daniel was not negligent, because she had exercised the skill and care to be expected of a reasonably competent OH physician in the circumstances. Dr Daniel never saw Mrs Kapfunde in person; she merely assessed her questionnaire. The case arose before the Disability Discrimination Act came into force. Now, there might be an argument that Mrs Kapfunde was a disabled person under the Equality Act.

The main interest in the judgment lies in the conclusion that Dr Daniel did not owe Mrs Kapfunde a duty of care. The Court of Appeal drew an analogy with the decision of the House of Lords in X v. Bedfordshire County Council (1995), where it was held that the psychiatrists who examined children at the request of the local authority in cases of suspected child abuse owed no duty of care to those children or their parents. In later case law, after an appeal to the European Court of Human Rights, the courts have held that the psychiatrist does owe a duty of care to the child, though not to the parents (JD and Others v. East Berkshire Community Health (2003)). In Poole Borough Council v GN (2019), the Supreme Court overruled the Bedfordshire County Council decision. Thus, the authority of the Kapfunde decision has been weakened. In addition, the harm suffered by the job applicant was economic only: she did not get the job. It is submitted that had there been physical harm, the OH physician could have been liable for a negligent failure to diagnose a physical problem and to warn the job applicant of the need to consult her GP, as in the Croydon case above.

In Hamed v. Mills, Tottenham Hotspur and Cowie (2015), a young football player aged 17 was recruited by Tottenham Hotspur football club. There is a recognised risk to young athletes of sudden death from a congenital heart condition known as hypertrophic cardiomyopathy (HCM), so the football club employer initiated pre‐employment screening. This was done by a consultant cardiologist who reported to the club’s own employed doctor. The cardiologist performed only an echocardiogram and an electrocardiogram which raised suspicions but were never followed through. Hamed and his parents were given no information about the findings. The club’s own doctor also took no action although she was aware of the results of the tests. A year later, Hamed had a heart attack when playing in Belgium and suffered irreversible brain damage. The cardiologist at first denied that he owed the claimant a duty of care at all (presumably relying on Kapfunde) but later withdrew that defence and admitted that he had a duty, that he was in breach of that duty and that his breach contributed to the injury. The judge held that the club’s doctor was also negligent and apportioned liability 30 per cent to the cardiologist and 70 per cent to the club’s doctor (and hence to her employer Tottenham Hotspur which was vicariously liable).

In the United States, liability has been imposed on OH doctors who have negligently failed to diagnose medical conditions. For example, in Green v. Walker (1990), an employee was required to undergo annual health checks. The doctor carried out all the tests, found the results to be normal and classified the employee as fit. A year later the employee was diagnosed with lung cancer. It was held that the doctor owed a duty of care to the employee. This has also been applied to pre‐employment examinations (Betesh v. United States (1974)).

When a doctor conducts a physical examination, the examinee generally assumes that ‘no news is good news’ and relies on the assumption that any serious condition will be revealed.

The general principle is that the duty of care of a health professional in negligence arises when it can be foreseen that a careless act or omission may harm another. There is no duty to assist a stranger, but if the health professional creates a relationship by examining or testing an individual, a duty will arise at least to perform the examination carefully. In Mrs Sutton’s case (next section) a nurse in a Well Woman Clinic who examined a woman for breast cancer and did not refer her to a doctor when she complained of a lump in her breast was held liable for negligence. A doctor using a healthy volunteer for research is not in a therapeutic relationship but he will be liable if he negligently causes damage to the volunteer.

As will be discussed in Chapter 3, there is no blanket obligation in law to give the patient information about himself, but it is likely that courts would hold a doctor negligent if, having discovered in the course of screening that a worker was showing signs of susceptibility to a substance, he did not at least warn the patient to avoid further exposure. Only if the worker’s condition were incurable, could not be treated and could not be passed on to others might there be justification for the doctor’s silence. In one incident, a part‐time OH physician passing through the factory chanced to see a worker stripped to the waist. He noticed swelling of glands and other clearly visible symptoms of Hodgkin’s disease. He obtained the man’s consent to writing a letter to his GP, who in his turn sent him to a consultant who confirmed the diagnosis and commenced immediate treatment. Would the OH physician have been acting negligently if he had not at least advised the man that he should consult his own doctor? What if a doctor acting as an impartial medical examiner for an insurance company discovers such symptoms? Even though the company expressly forbids him to discuss his report with the applicant, it would be negligent (and, as a mere lawyer, I should have thought unethical) for the doctor not to indicate to him that he should seek further medical advice (one possibility is to obtain the applicant’s agreement to sending a confidential letter to his GP).

What, then, is the difference between the therapeutic and the other relationships? As you would expect, it is the existence or absence of a duty to give treatment. The doctor or nurse who examines an applicant for a job undertakes only to assess his medical suitability. He has no further obligation. He can say: ‘I have been asked to examine you by the employer. These are the examinations I propose to do. I shall only perform them with your agreement and I shall only give the results to the employer with your consent. If you refuse consent I cannot write a report about you and in that case I don’t think you have much chance of the job, but that is your decision.’

There is no doubt that the OH professional does owe a duty of care to employees in employment and this is discussed in the next section. It is important to note that the duty of confidence arises in any situation, pre‐employment, in employment, or if the doctor is an independent medical examiner, where the patient confides in the physician. It is not dependent on the presence or absence of a duty of care.