Court : House of Lords
Decided on : Oct-27-2005
lord nicholls of birkenhead my lords, 1. i have had the advantage of reading in draft the speeches of my noble and learned friends lord hoffmann and lord walker of gestingthorpe. for the reasons they give, with which i agree, i would allow this appeal. lord hoffmann my lords, 2. by a deed dated 5 april 1866 jane mercer and lewis wigan conveyed land in maidstone to trustees under the terms of the school sites act 1841 (4 and 5 vict, c 38) on trust "to permit the said premises and all buildings thereon erected or to be erected to be forever hereafter appropriated and used as and for a school for the education of children and adults of the labouring manufacturing and other poorer classes in the ecclesiastical district of saint philip maidstone aforesaid and for no other purpose." 3. the deed went on to provide that the school should always be "in union with and conducted according to the principles and in furtherance of the ends and designs of the national society for promoting the education of the poor in the principles of the established church throughout england and wales". there followed detailed provisions for ensuring that the management of the school should always be in the hands of members of the church of england. the canterbury diocesan board of finance ("the dbf") are successors in title to the original trustees. 4. section 2 of the school sites act 1841 empowers both fee simple and more limited owners to grant in fee simple up to one acre of land "as a site for .....Tag this Judgment!
Court : House of Lords
Decided on : Jan-27-2005
lord nicholls of birkenhead my lords, 1. this appeal raises a question which has divided courts and commentators throughout the common law world. the division derives essentially from different perceptions of what constitutes injustice in a common form type of medical negligence case. some believe a remedy is essential and that a principled ground for providing an appropriate remedy can be found. others are not persuaded. i am in the former camp. 2. this is the type of case under consideration. a patient is suffering from cancer. his prospects are uncertain. he has a 45% chance of recovery. unfortunately his doctor negligently misdiagnoses his condition as benign. so the necessary treatment is delayed for months. as a result the patient's prospects of recovery become nil or almost nil. has the patient a claim for damages against the doctor? no, the house was told. the patient could recover damages if his initial prospects of recovery had been more than 50%. but because they were less than 50% he can recover nothing. 3. this surely cannot be the state of the law today. it would be irrational and indefensible. the loss of a 45% prospect of recovery is just as much a real loss for a patient as the loss of a 55% prospect of recovery. in both cases the doctor was in breach of his duty to his patient. in both cases the patient was worse off. he lost something of importance and value. but, it is said, in one case the patient has a remedy, in the other he does not. 4. this would make .....Tag this Judgment!