Thake v Maurice
Encyclopedia
Thake v Maurice [1986] QB 644 is an English contract law
case, concerning the standard of care that must be exercised by surgeons in performing operations.
waiting list was long and they could not afford to go private. Their doctor suggested Mr Thake have a vasectomy
and arranged for them to see Mr Maurice. He did not advise Mrs Thake that there was a small chance that after a vasectomy there could be recanalisation and Mr Thake would become fertile again. Mrs Thake ignored the signs of pregnancy because she though it had worked, and then only realised when she was five months pregnant. She wanted an abortion, but it was too late. A healthy child was born called Samantha. They sued in contract and tort for damages.
, failure to warn about a small risk of failure amounted to a breach of the duty of care between surgeon and patient. The measure of tort damages were less than potential contract damages of £2500, being only £1500 to take account of the fact that she did not have the pain of an abortion. But there would be no damages for breach of contract, to put the patient in the position as if the contract had been successful, or in other words, to reimburse for the expenses of bringing up the child.
Kerr LJ concluded his judgment as follows. He referred to Lord Denning MR in Greaves & Co (Contractors) Ltd v Baynham Meikle & Partners when he said, “The surgeon does not warrant that he will cure the patient.”
Neill LJ said,
So stressing that the operation was ‘irreversible’ did not amount to giving a guarantee that it would work, no binding promise.
English contract law
English contract law is a body of law regulating contracts in England and Wales. With its roots in the lex mercatoria and the activism of the judiciary during the industrial revolution, it shares a heritage with countries across the Commonwealth , and the United States...
case, concerning the standard of care that must be exercised by surgeons in performing operations.
Facts
Mr Thake was a railway guard and they were not financially comfortable with five children already (two grown up), living in a three bedroom council house. Mrs Thake wanted to be sterilised, but the NHSNational Health Service
The National Health Service is the shared name of three of the four publicly funded healthcare systems in the United Kingdom. They provide a comprehensive range of health services, the vast majority of which are free at the point of use to residents of the United Kingdom...
waiting list was long and they could not afford to go private. Their doctor suggested Mr Thake have a vasectomy
Vasectomy
Vasectomy is a surgical procedure for male sterilization and/or permanent birth control. During the procedure, the vasa deferentia of a man are severed, and then tied/sealed in a manner such to prevent sperm from entering into the seminal stream...
and arranged for them to see Mr Maurice. He did not advise Mrs Thake that there was a small chance that after a vasectomy there could be recanalisation and Mr Thake would become fertile again. Mrs Thake ignored the signs of pregnancy because she though it had worked, and then only realised when she was five months pregnant. She wanted an abortion, but it was too late. A healthy child was born called Samantha. They sued in contract and tort for damages.
Judgment
The Court of Appeal held that a normal, reasonable person knows that medical operations are not always successful, and that simply by promising to do an operation, there is no promise for success. Speaking about what an ordinary person would think, Nourse LJ said "it does seem to me to be reasonable to credit him with the more general knowledge that in medical science all things, or nearly all things are uncertain." All agreed that as a matter of tortTort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
, failure to warn about a small risk of failure amounted to a breach of the duty of care between surgeon and patient. The measure of tort damages were less than potential contract damages of £2500, being only £1500 to take account of the fact that she did not have the pain of an abortion. But there would be no damages for breach of contract, to put the patient in the position as if the contract had been successful, or in other words, to reimburse for the expenses of bringing up the child.
Kerr LJ concluded his judgment as follows. He referred to Lord Denning MR in Greaves & Co (Contractors) Ltd v Baynham Meikle & Partners when he said, “The surgeon does not warrant that he will cure the patient.”
Neill LJ said,
So stressing that the operation was ‘irreversible’ did not amount to giving a guarantee that it would work, no binding promise.