inherent in medical treatment. (See, for example, Lord Scarman in Sidaway v Bethlem Royal Hospital Governors[1985l 1 All ER 643 at p. 650, who thought such pleading The of the judiciary to the conclusion that a failure to advise adequately to inherent risks(thus negating consent) means that the doctor has battered the patient, has led to strong views being expressed that cases are actionable only in the tort of negligence. In Sidaway's case the House of Lords substantially confirmed that the princip laid down in Bolam v Friern Hospital Mianagement Committee 1957 582(discussed in chapter 4 below) is applicable not only to negligent diagnosis and treatment cases, but also to the extent to which inherent risks should be disclosed to patients. This, however falls far short of the doctrine of'informed consent' as developed in the USA and Canada. Despite the judicial disapproval noted above certain types of medical mishaps' will continue to be actionable in battery; here for example the'wrong' operation is performed on the right' patient or where the'right' operation is performed on the"wrong patient, there is no consent as to the nature of the treatment itself. Students should not be surprised to find questions on this area continuing to appear on examination papers. The issue is a controversial one and it cuts across the boundaries of two torts, trespass and negligence. A student would probably be better able to impress the examiner if he were to read and to digest themajor points Students might also give some thought to the potenti(if any) of suing in trespass as opppsed to negligence(where possible) That question is unfortunately not addressed by the learned author of the above mentioned article. In addition to the above-mentioned defences, in certain circum stances the courts are prepared to invoke another principle founded on policy, namely, ex turpi causa non oritur actio, for example, where either one or both parties to an action are involved in some criminal activity. The effect this may have is to deprive one or both of the parties of redress in a civil action. The precise scope of this principle is not altogether clear, which makes it an attractive topic to an examiner.
Illustrative problem
Roughneck and his girlfriend, Gloria, after an afternoon drinking session, are at the station waiting for a train home during the rush hour. James, one of the many commuters pouring on to the platform pushes past Roughneck catching him with his briefcase.