‘The Weekly Law Reports, October 4, 1974 1176 Buckley LJ. Allen y. Allen (CA) ta974] should not take place until the younger child had attained the age of 17 years, or had finished his full-time education, whichever date should be the earlier, without either the consent of both the parents or under an order of the court, and that during that limited period the property should be held in trust for the mother to the exclusion of the father for the purpose of her providing a home there for the children of the family, and, in particular, the two boys, and that at the expiration of that limited period it should then be held upon trust for the two spouses in equal shares. Now it would follow from that that the husband would no longer have any right to reside in the matrimonial home during the limited period to which I have referred, and I think it is right that the order should be so framed as to give him a reasonable time to get out. The judge ordered him to leave the matrimonial home within two months from the date of his order, and I think it would be right if the order is altered on the lines 1 suggest that he should still be given a reasonable time, whatever might now be a reasonable time, to find other accommodation and to make his move. Tn substance, therefore, I for my part would dismiss this appeal, but I would vary the judge’s order in the way I have indicated, One LJ. T agree. Appeal dismissed with costs. Solicitors: Waller, Chesshire & Predko, Southampton; J. M. B. Turner & Co., Poole. Zz. D. [court oF APPEAL] * ROBINSON v. POST OFFICE AND ANOTHER {1968 R. No. 1181] 1973 July 2, 3, 5, 6, 9, 10; Oct. 25 Davies, Buckley and Orr L.JJ. Damages—Remoteness—Foreseeability—Personal__injuries—Work- ‘man with minor injury treated with anti-tetanus serum— Serum properly prescribed but administered without prior test dose—Workman's allergy to serum resulting in encephalitis and consequent disablement—Whether novus actus interveniens by doctor—Extent of employers’ liability Negligence—Duty of care 10 whom ?—Doctor—Workman's injury Administration of anti-tetanus serum without accepted test procedure—Workman allergic to serum—No evidence of allergy for several days—Encephalitis developing nine days after injection—Doctor’s negligence in failing 10 administer test dose—No negligence in administering serum—Whether liable for damages In February 1968 the plaintiff, a Post Office technician, when descending from a tower wagon in the course of his employ- ment, slipped because of oil deposited on the ladder and sustained a wound on his left shin. About eight hours later his, doctor gave him an injection of anti-tetanus serum (ATS) but did not follow the accepted procedure for the administration ofThe Weekly Law Reports, October 4, 1974 1WLR Robinson v. Post Office (C.A.) a test dose. The plaintiff showed no immediate reaction but nine days after the injection developed encephalitis which re- sulted in brain damage and permanent partial disability. He brought an action for damages against both the Post Olfice and the doctor claiming that his injuries and illness were caused by the negligence of one or other of both of them. The Post Office admitted liability for damages in respect of the wound on the shin but denied liability for any damages attributable to the encephalitis and the results thereof, claiming that the encepha- litis was caused solely by negligent medical treatment by the doctor; alternatively, that it was not foreseeable or was otherwise too remote a consequence of their admitted negli- gence. At the trial the medical evidence showed that the risks of adverse reaction to ATS, including in rare cases encephalitis, were greater where the patient had had a previous dose of the serum. According to the plaintiff's medical history he had had a previous injection in the autumn of 1955. Ashworth J. found that the doctor had not been negligent in deciding to administer ATS, that he had been negligent in not following the accepted procedure for administering the test dose, but that his failure so to do had not caused or materially contributed to the encephalitis. He accordingly dismissed the plaintiff's claim against the doctor, held the Post Office wholly liable and awarded the plaintiff £20,157-77 damages, On appeal by the Post Office:— Held, dismissing the appeal, (1) that, in applying the test as to whether the doctor had acted in accordance with a practice accepted as proper by a responsible body of medical men, the judge had applied the proper test in holding that, on’ the evidence, the doctor had not been negligent in deciding to administer ATS (post, pp. 1185H—I 1864). Bolam v. Friern’ Hospital Management Committee 1957] 1 W.LR. $82 applied. (2) That on the evidence the judge was justified in holding that, although the doctor had been negligent in the procedure adopted for applying the test dose, that negligence had not caused or contributed to the encephalitis and that he was right in law in holding that the doctor was not liable in damages to the plaintiff (post, pp. 1188D-F, c—11894). Bonnington Castings Lid. v. Wardlaw [1956] A.C. 613, H.L(Sc.) applied. McGhee Vv. National Coal Board [1973] 1 WLR. 1, H.L{(Sc)) considered. (3) That the case was governed by the principle that a wrongdoer had to take his victim as he found him, and that, since the accident and the necessity for an anti-tetanus prophy- lactic were reasonably foreseeable, the Post Office had to take the plaintiff with his allergy to ATS and the consequent risk of an adverse reaction thereto, so that, on the judge’s findings, they could not rely on the negligence of the doctor as a novus, actus interveniens, they were liable to the plaintiff not only for damages in respect of the wound on the shin but for the encephalitis which followed the medical treatment and the ensuing disabilities (post, pp. 1189c-, 1191G—-1192a). Overseas Tankship (U-K.) Lid. v. Morts Dock and Engineer- ing Co. Lid. (The Wagon Mound) [1961] AC. 388, P.C. considered. Smith v. Leech Brain & Co. Ltd. [1962] 2 Q.B. 405 and Winteringham V. Rae (1966) 53 D.LR. (2d) 108 applied. Decision of Ashworth J. affirmed. ‘The following cases are referred to in the judgment: 77 Barnett v. Chelsea and Kensington Hospital Management Committee [1969] 1 QB. 428; [1968] 2 W.LR. 422; [1968] 1 All E.R. 1068, CA.‘The Weekly Law Reports, October 4, 1974 1178 Robinson v. Post Office (C.A.) (i974) Bloor v. Liverpool Derricking and Carrying Co. Ltd. [1936] 3 All ER. 399, CA. Bolam v. Friern Hospital Management Committee [1957] 1 W.L.R. 582; [1957] 2 All E.R. 118. Bonnington Castings Ltd. v. Wardlaw [1956] A.C. 613; [1956] 2 W.LR. 707; [1956] 1 All E.R. 615, H.L.(Sc,). Bradjord v. Robinson Rentals Lid. (1967| 1 WLR. 337; [1967] | AUER. 67. Hogan v. Bentinck West Hartley Collieries (Owners) Ltd. [1949] 1 All ER, 588, HL(E). Hughes v. Lord Advocate [1963] A.C. 837; [1963] 2 W.L.R. 779; [1963] 1 AIL ER. 705, H-L.(Sc.). McGhee v. National Coal Board [1973] 1 W.LR. 1; [1972] 3 All ER. 1008, H.L.(Sc.).. McWilliams V. Sir William Arrol & Co. Ltd. [1962] 1 W.LR. 295; [1962] 1 AILER. 623, H.L(Sc). Oman v. McIntyre, 1962 S.L.T. 168. Overseas Tankship (U.K.) Ltd. v. Morts Dock and Engineering Co. Ltd. (The Wagon Mound) {1961} A.C. 388; [1961] 2 W.LR. 126; [1961] 1 All E.R. 404, P.C. Polemis and Furness, Withy & Co. Ltd., In re 1921] 3 K.B. 560, C.A. Rothwell v. Caverswall Stone Co. Ltd. (1944) 2 All E.R. 350, C.A. Smith v. Leech Brain & Co. Lid. [1962} 2 Q.B. 405; [1962] 2 W.LR. 148; [1961] 3 AIIE.R. 1159. Tremain V. Pike [1969] 1 W.LR. 1556; [1969] 3 All ER. 1303. Warren V. Scrutions Ltd. [1962] 1 Lloyd's Rep. 497. Wigley v British Vinegars Lid. [1964] A.C. 307; [1962] 3 W.LR. 731; [1962] 3 AIL ER. 161, HLL.(E.) Winteringham v. Rae (1966) 55 D.LR. (24) 108. ‘The following additional cases were cited in argument: Burke v. John Paul & Co. [1967] LR. 277. Czarnikow (C) Ltd. v. Koufos [1969] 1 A.C. 350; [1967] 3 W.LR. 1491; [1967] 3 All ER. 686, HL.(B). Davies v. Liverpool Corporation [1949] 2 All E.R. 175, C.A. Dorset Yackt Co. Ltd. v. Home Office [1970] A.C. 1004; [1970] 2 W. 1140; [1970] 2 All E.R. 294, H.L.(E.). Doughty v. Turner Manufacturing Co. Ltd. (1964] 1 Q.B. 518; [1964] 2 W.LR. 240; [1964] | All E.R. 98, C.A. Lord v. Pacific Steam Navigation Co. Ltd., The Oropesa [1943] P. 32; (1943) 1 AUER. 211, C.A. McKew v. Holland and Hannan and Cubitts (Scotland) Ltd. [1969] 3 All ER. 1621, HL.(Sc.). Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty. {1967] 1 A.C. 617; [1966] 3 W.LR. 498; [1966] 2 All ER. 709, P.C. Vacwell Engineering Co. Ltd. v. B.D.H. Chemicals Ltd. (1971] 1 QB. 88; [1969] 3 WLR. 927; [1969] 3 All ER. 1681; (Note) [1971] 1 QB. 111; [1970] 3 W.LR. 67; [1970] 3 AM E.R. 553,C.A. West v. Hughes of Beaconsfield Lid. [1971] R.T.R. 298. ‘APPEAL from Ashworth J. By a writ dated March 12, 1968, the plaintiff, Keith Robinson, a joiner employed by the Post Office, brought an action for damages against the Post Office for injuries sustained as a result of an accident on February 15, 1968, when, in the course of his duties at Brockdish, Norfolk, he was descending a ladder from a tower wagon owned and under the control of the Post Office. The ladder had become oily as a result of a leaky oil‘The Weekly Law Reports, October 4, 1974 1179 1 WLR. Robinson v. Post Office (C.A.) pump. The plaintiff slipped and sustained a laceration to his left leg. After an injection of anti-tetanus serum (ATS) by Dr. Malcolm McEwan, he contracted encephalitis. On December 30, 1970, Dr. McEwan was joined as second defendant in the action. The plaintiff alleged that his injuries were caused by the negligence of one or other or both defendants. The Post Office admitted liability for damages in respect of the injury to the plaintifi’s leg but denied liability for damages in relation to the encephalitis, contending that that illness was caused solely by the injection of ATS administered by Dr. McEwan which they alleged was not normal medical treatment but was negligent. Dr. McEwan denied negligence. The case came on for trial before Ashworth J. in December 1972. He found on the evidence that Dr. McEwan had not been negligent in deciding to administer and in administering ATS but that he had been negligent in failing to administer a test dose in the accepted manner; but that that negligence had not caused or contributed to the encephalitis. He accordingly absolved the doctor from liability. He found the Post Office wholly liable to the plaintiff and awarded him £20,157-77 damages with interest and costs. The Post Office appealed and the plaintiff cross-appealed against the judge’s conclusions that Dr. McEwan had not been negligent in deciding to inject ATS, and that the doctor’s negligence in failing to administer a proper test dose had not caused nor contributed to the encephalitis. The facts are stated in the judgment of the court. John Newey Q.C. and Robin Auld for the Post Office. John Griffiths Q.C. and Peter Lewis for the plaintiff. John Spokes Q.C. for Dr. McEwan. Cur. adv. vult. October 25. Orr LJ. read the following judgment of the court. This is an appeal by the Post Office against a judgment of Ashworth J. given on December 21, 1972, by which he held the Post Office, who were the first defendants in an action for damages for personal injuries, liable to the plaintiff in damages of £20,157-77 and interest, and also ordered them to pay to the second defendant, Dr. McEwan, his costs of defending the action. The plaintiff in the action, Mr. Robinson, had been in the service of the Post Office since 1955 and was, at the time of the accident complained of, 34 years of age and employed by the Post Office as a technician Class 1. The circumstances of the accident, which took place between 10 and 10.30 a.m. on February 15, 1968, were that he slipped when descending the ladder of one of the Post Office tower wagons and sustained a wound some three inches long on his left shin. It was not in dispute that the cause of his slipping was the presence of oil on the ladder due to leakage of a pump and that the Post Office were liable for such modest damages as would have been attributable to the plaintiff's wound had nothing further supervened; but unfortunately, as a result of the medical treatment given to the plaintiff, very grave consequences supervened, and the contest in the action was as to the liability of the Post Office for these consequences, The plaintiff after his fall was able to carry on working until knocking- off time at 5.30 pm. after which he went to his general practitioner, Dr. McEwan, who saw him just after 6 p.m. and, after examining the wound, ascertaining its circumstances and that it had been caused some seven-and- achalf to eight hours before, and inquiring what anti-tetanus injections‘The Weekly Law Reports, October 4, 1974 1180 Robinson v. Post Office (C.A.) (974) the plaintiff had previously had, sent him to a chemist for anti-tetanus serum (hereinafter in this judgment referred to as ATS) and on his return gave him an injection of the serum. The plaintiff's own evidence was that from then until February 24 he felt perfectly well, was playing with his children, and was only absent from work because of the wound. His mother, however, gave evidence of his suffering, at the earliest three days after the injection, from an irritation which is referred to in the paragraph entitled “History” in a report dated April 23, 1968, by the medical registrar at the Ipswich Hospital and was taken by him to have been giant urticaria. On February 24, nine days after the injection, the plai tiff showed signs of reaction which were not at first thought to be serious but on the following day he became delirious and on February 26 he was admitted to hospital and was on admission unable to speak. It was not in dispute at the trial that the plaintiff had at this time, as a result of the injection, contracted encephalitis, which is a possible, though a rare, consequence of the administration of ATS; and that the brain damage so sustained has been followed by very severe consequences. The plaintiff appeared at first to make a very good recovery but the improvement was short-lived. He had in early 1969, as a direct result of the brain damage, two attacks of an epileptic character and although there have been no further such attacks there is a risk of their recurrence. He is, as the judge found, a very different man from what he would have been if the accident had not befallen him. In the action the plaintiff originally sued only the Post Office but they having in their defence made allegations of negligence on the part of Dr. McEwan, he was, by amendment of the writ and statement of claim, joined as a co-defendant, the allegations made against him in the amended statement of claim being identical with those set out in the Post Office's defence. At the trial the main issues which arose were, first, whether Dr. McEwan had, in all the circumstances, been negligent in injecting ATS; secondly, whether he had been negligent in injecting a full dose of ATS without administering a proper test injection beforehand: thirdly, whether, if he had been negligent in the second of these respects, such negligence caused or materially contributed to the encephalitis; and fourthly, whether, if Dr. McEwan was not liable in negligence to the plaintiff (it being admitted that, if he was, the chain of causation between the breach of duty by the Post Office and the encephalitis would be broken), the Post Office were entitled in law to be held not liable for the damage attributable to the encephalitis on the ground that that illness was not foreseeable in the circumstances or was otherwise too remote a consequence of their admitted negligence. As to the first and second of these issues, the judge held that it had not in the circumstances been negligent of Dr. McEwan to administer ATS but that he had been negligent in failing to administer a proper test dose. He went on, however, to find as a fact that if a proper test dose had been administered the plaintiff would not have shown any reaction to it and therefore the failure to administer a proper test dose had not caused or materially contributed to the encephalitis; and as to the fourth issue he held that the Post Office were liable in law for the encephalitis as well as for the wound. He also made certain findings of fact, to which ‘eference will be made later in this judgment, as to the plaintiff's medical history of anti-tetanus injections, and, with reference to complaints made‘The Weekly Law Reports, October 4, 1974 1181 1 WLR. Robinson v, Post Office (C.A.) in the defence of the Post Office and the amended statement of claim as to the insufficiency of the wound toilet applied by Dr. McEwan and as to his failure to administer an antibiotic, refused to find that the doctor had been negligent in either of these respects. These last conclusions have not been challenged in this appeal, nor has Dr, McEwan in this appeal sought to challenge the judge’s finding that he was negligent in failing to administer a proper test dose. In the result the three issues in the appeal are whether the judge was right in holding (1) that it was not negligent of Dr. McEwan to administer ATS; (2) that the failure to administer a proper test dose did not cause ‘or materially contribute to the encephalitis; and (3) that the Post Office were liable for the damages attributable to that iliness. Before turning to the first of these issues it should be mentioned that Mr. Newey, for the Post Office, criticised the judge for considering separately the question whether Dr. McEwan was wrong to administer ATS at all and whether he was negligent in administering it without a proper test dose, but these are in fact distinct questions and we see no reason to suppose that in considering either question the judge overlooked any relevant evidence in relation to the other. By way of introduction to the first issue it is necessary to refer to certain general evidence, given at the trial and not in dispute, as to the history of anti-tetanus precautions and also to the more important of a very iarge number of published or circulated papers on the subject which would have been available to a general practitioner before the date of the accident. ATS first came into use about the beginning of this century. It may take the form of horse serum or human or bovine serum but it has always, for practical purposes, denoted horse serum since stocks of human or bovine serum are restricted to a very few centres in the country, and, while it was common ground at the trial that certain risks associated with horse serum and referred to in the medical literature are far less serious in the case of human or bovine serum, it was also common ground that Dr. McEwan could not, in the circumstances of this case, have obtained either human or bovine serum in sufficient time for it to have any effect. The abbrevia- tion ATS is therefore used throughout this judgment to denote ATS in the form of horse serum. ATS was widely used in the 1914-18 war but it was found that a considerable number of those injected with it developed symptoms after- wards and some died. This led to research with the object of finding an alternative for it and an alternative was found in anti-tetanus toxoid of which an improved form became available in 1963 but it will be convenient to refer alike to the toxoid injected before and after that date as APT {alum-precipitated toxoid). During the 1939-45 war APT was administered both to the British and American forces, whereas for civilians ATS con- tinued to be used. For a short period from about 1945-48 the British Army stopped using APT but thereafter reverted to it. An essential difference between APT and ATS is that the former, administered in three doses, provides future immunity from tetanus for a period of years as to the duration of which different views have been held at different times, and within limits of time its efficacy can be restored by a single booster dose, but it is not, whereas ATS may be, efficacious to prevent the onset of tetanus in a wound in which, before the injection is made, there has been time for tetanus toxin to develop.The Weekly Law Reports, October 4, 1974 1182 Robinson y. Post Office (C.A.) (i974) After the second World War APT was increasingly used and from the 1940s onwards increasing doubts were felt as to the desirability of using ATS, and those doubts are reflected in the medical literature on the subject, a very large volume of which was before the judge. It is, for the present Purposes, necessary to refer to only five of these documents. [His Lordship then referred to five publications in which the use and value of ATS were discussed. The first was Tetanus Prophylaxis, by Drs. C. A. Cox and J. Knoweldon, and Mr. W. J. Sharrard (senior consultant at the Accident and Orthopaedic Department of the Sheffield Royal Infirmary, and a witness on behalf of the Post Office at the trial), the second, a state- ment by the Ministry of Health published in the British Medical Journal and Lancet on July 27, 1964, the third, a booklet entitled The Prophylaxis of Tetanus, published in February 1965 in which Mr. M. Ellis, a consultant surgeon to the Casualty Department of the Leeds General Infirmary, and Mr. Sharrard propounded different views on the problem, the fourth, Prevention of Tetanus in the Wounded, published in the British Medical Journal on January’ 1, 1966, and written by Drs. D. R. Lawrence, D. G. Evans and J. W. G. Smith (consultant deputy myologist in a public health laboratory at Colindale and a witness for Dr. McEwan at the trial), and the fifth, Tetanus Prophylaxis, also by Dr. Smith, published in the British Medical Journal on December 16, 1967. His Lordship continued.] The medical literature represented by these documents reveals that for a period of years before 1968 there had been a growing tendency to dis- continue the use of ATS in favour of APT and antibiotics but reveals also that there were two schools of thought on this subject, the first, represented by Mr. Sharrard, that ATS should be given only in very exceptional circumstances, and the other, represented by Dr. Smith, that the administra- tion of ATS remained the wiser course in the case of a non-immunised patient with a contaminated wound over six hours old, but with the qualification that it should, if it were at all reasonable to do so, be with- held from a patient who had had ATS before. It was, however, common ground between the two schools that if a patient had had a previous dose of ATS there were two serious drawbacks of administering another, the first that its prophylactic value would be greatly diminished by the speed of its elimination, and the second that it would involve much greater risks of reactions, and these would include, as well as local skin irritation, the risks, admitted to be rare, of the patient dying from anaphylactic shock or contracting encephalitis. In these circumstances the evidence as to the plaintiff's previous medical history, and the judge’s findings upon it, are of great importance in the case. He had in 1940, at the age of seven, sus- tained injury by a nail going.through his right hand, for which he was admitted to hospital, but no records were available to show what treat- ment he had received. Since at that time ATS was widely used as a prophylactic against tetanus the judge thought it quite likely that it would have been administered but was not satisfied on a balance of probabilities that it had been, and this finding has not been challenged in the appeal. Between 1952 or 1953 and 1955 the plaintiff had served in the Royal Corps of Signals. His pay book (from which the relevant pages had been removed) did not reveal any injection but the judge drew the inference that he would have been injected with APT, which was, during that period, being used in the forces. In September 1955, some months after joining the Post Office, the plaintiff suffered an accident for which Dr. McEwan sent him to hospital, and a letter dated November 9, 1955, from the con- sultant orthopaedic surgeon in charge of his case to Dr. McEwan reveals‘The Weekly Law Reports, October 4, 1974 1183 1WLR. Robinson v, Post Office (C-A.) that he was at this time given 1,500 units of ATS. Dr. McEwan’s evidence at the trial was that he did not have this letter (which was in the surgery of his son, a partner in the practice) when the plaintiff consulted him on February 15, 1968, but made the assumption that the plaintiff would, when in hospital, have had an injection of ATS. In August 1955, the plaintiff sustained, in climbing out of a manhole, an injury to his left shin, for which he consulted Dr. McEwan, and his evidence, which the judge accepted, was that the doctor on that occasion gave him an injection. There was no entry on his card in relation to this visit and Dr. McEwan could not recall it but his evidence was that if he had injected ATS he would have recorded it. The judge considered it possible that on this occasion the doctor administered penicillin, which would ‘have been available at the surgery whereas ATS would have in- volved, as in 1968, a visit by the plaintiff to a chemist, and in the absence of any evidence by the plaintiff as to such a visit in 1965, came to the conclusion that penicillin and not ATS had been administered, and this conclusion also has not been challenged in the appeal. Accordingly the relevant circumstances in the plaintiff's medical history must be taken to be that he had had a dose of APT prior to February 1955, and a dose of ATS in the autumn of the same year. From this background of medical literature and of the plaintiff's medical history we now tum to Dr. McEwan’s own evidence as to the considerations which led him to inject ATS, and to the evidence of other medical witnesses as to the propriety of his doing so. Dr. McEwan quali- fied in 1924 and, apart from very distinguished active service in the second World War, has been in general practice in Ipswich since 1927. He gave evidence that when he started in practice there he was warned by the medical officer of health for Ipswich that the whole of the Suffolk-Norfolk borders were tetanus-prone country and that as a casualty officer he should be particularly careful in that regard. He had in his practice encountered three or four cases of tetanus, two involving agricultural labourers, one of whom had sustained no more than a slight graze from a kick by a cow, and he took the view that Post Office workers were subject to a tetanus risk because their work took them on the land and they could carry tetanus infection on their footwear. He had read much material about tetanus precautions in the medical journals which had revealed conflicting views. His own approach had been that in deciding whether or not to inject ATS the major considerations were (1) the age of the wound, (2) the length of the period since the patient had been actively immunised, and (3) whether the patient had had ATS before. In the case of a patient who had had no active immunisation in the past 10 years his practice would be to administer ATS if he thought there was any risk at all of tetanus being present and developing toxin. If there was no such risk he would start active immunisation in the form of APT. On February 15, 1968, the plaintiff had come to his surgery about 6 pm, and had told him that the injury had been sustained by his slipping on the ladder of a tower wagon about 10 a.m., which would make it about eight hours old. The injury itself could be described as an abrasion or graze two-and-a-half to three inches long, surrounded by some devitalised tissue but not particularly dirty. He formed the view that tetanus infection could have been deposited on the ladder from the footwear of Post Office employees and that in eight hours there had been ample time for tetanus toxin to develop in the wound, which he described as superficial but of great significance. The judge, after referring to evidence of the plaintiffThe Weekly Law Reports, October 4, 1974 1184 Robinson y. Post Office (C.A.) [1974] that the wound went down to the bone and that he had attempted to clean it before going to the surgery, concluded, and in our view justifiably, that it was by no means trivial. Dr. McEwan’s evidence was that, having examined the wound and obtained information as to when and how it was caused, he then asked the plaintiff when he had had his last tetanus injection and the plaintiff replied that this had been in 1955 but that he did not remember where he was given it, ‘The doctor assumed (what he later confirmed from the surgeon's letter) that the plaintiff would have had ATS at the hospital in the autumn of that year, and, since he knew of the plaintif’s military service, also assumed that he would have had APT, probably soon after the commence- ment of that service. In these circumstances he took the view that, since the plaintiff's only active immunisation had been more than 10 years before, he must be regarded as non-immunised. The plaintiff's evidence as to this part of the case was that when asked about his last injection he had replied “three or four years ago,” but it was not in dispute that Dr. McEwan had, either on February 15, 1968, or on the following day, entered on the plaintiff's medical card that his last previous injection had been in 1955, and the judge accepted the doctor’s evidence that this was what he was told by the plaintiff. Dr. McEwan’s evidence as to what followed was that, having examined ‘the wound and obtained the foregoing information, he decided to inject ATS, sent the plaintiff to a chemist to get it, and on his return proceeded to administer it in a manner to which reference will be made later in this judgment. He did not excise the devitalised tissues round the wound and left the wound itself uncovered in order to allow light to get at it, and he did not administer any antibiotic systemically but sprayed the wound with an antibiotic called Terra-Cortril. He did not administer APT. He gave as his reason for not excising the tissue that very extensive excision would have been necessary, which he did not consider it good surgery to perform, and that it would have involved sending the plaintiff to hospital, and, as his reason for not giving an antibiotic systemically, that it would have had no effect against toxin which could already have developed in the wound. Ashworth J. was not satisfied with these explanations but was not pre- pared to find that the doctor had been negligent in either of these respects, and these conclusions have not been challenged in the appeal. ‘As regards the administration of ATS, Dr. McEwan admitted that he had been influenced by the consideration that if he did not take this precaution and the plaintiff died of tetanus he might have to face a law- suit, but he claimed to have weighed in his mind the conflicting considera- tions which arose, and in essence the justification which he offered for the course taken was that the circumstances in which the wound had been caused involved a risk of tetanus infection; that the patient fell to be treated as non-immune; that sufficient time had elapsed for tetanus toxin to develop in the wound; and that, if it had developed, ATS was the only means of preventing tetanus. On the question whether in the circumstances Dr. McEwan was justi- fied in administering ATS, views were expressed by a number of medical witnesses. Dr. R. E. M. Thompson, consultant bacteriologist at the Middle- sex Hospital and called for the plaintiff, took the view that it was properly administered, having regard in particular to the time that had clapsed since the wound was sustained, and he thought that the critical period in that respect would be five hours. He considered that in all the circum-‘The Weekly Law Reports, October 4, 1974 1185 1 WLR. Robinson v. Post Office (CA) stances there was a strong indication for ATS whether or not some practi- tioners might not have given it. Mr. Sharrard, called for the Post Office and to whose qualifications reference has already been made, gave evidence that he would not ordinarily have expected a general practitioner to give ATS in the circumstances and would have expected that if he did so he would take very careful pre cautions having regard to the circumstance that the plaintiff had had a previous injection of ATS. He agreed, however, that an antibiotic could not have been effective if toxin had already formed in the wound before its administration, and he said that he would not criticise a general practitioner for thinking in 1968 that a patient was non-immunised after the expiry of 10 years from his last inoculation. He also accepted that any general practitioner would be justified in thinking that in the circum- stances of this case he must take some measures to combat the possibility of tetanus infection. Dr. Taylor, chief medical officer to the Post Office and called on their behalf, gave evidence that he would not have administered ATS in the circumstances but that he was in this respect expressing a personal view and was not saying that no practitioner could take the view that ATS should be administered, and he too accepted that it would in the circum- stances have been wrong to ignore any tetanus precautions at all. As an example of the kind of wound for which he himself would have given ATS to a non-immune patient who had had ATS before, he instanced one that had been sustained “ literally in manure.” Dr. Smith, consultant deputy myologist in a public health laboratory at Colindale and called for Dr. McEwan, gave evidence that on balance he would have been inclined to give ATS in the circumstances of this case because of the dangers of toxin having developed in the wound in the period since it was sustained. He thought that he would have taken this course notwithstanding the plaintiff's having had ATS on one previous occasion but he would not have given it if the plaintiff had had ATS twice before. Finally there was evidence from two medical witnesses neither of whom claimed to have made any specialised study of anti-tetanus precautions. Dr. Hughes, called for the plaintiff and who had attended him for the encephalitis, took the view that ATS had been reasonably administered, and Dr. Williams, a general practitioner in Northampton, considered that in the circumstances there was a strong indication for its administration, ‘As to this issue the judge, on the evidence which we have summarised, came to the conclusion that Dr. McEwan had not been negligent in deciding to inject ATS. On this appeal it has been attractively argued by Mr. Newey for the Post Office that this conclusion was wrong. He accepted that there was in the circumstances of the case some degree of risk of the ladder being infected by tetanus from the footwear of Post Office employees but claimed that the risk of the wound having been infected was slight and that the case was far removed from the instance given by Dr. Taylor of an injury caused “literally in manure.” In our judgment, however, the judge’s conclusion on this issue was fully justified on the evidence and we agree with it, The judge, rightly in our view, accepted that in deciding whether Dr. McEwan had been negligent the test to be applied was that contained in the following well known passage from the judgment of McNair J. in‘The Weekly Law Reports, October 4, 1974 1186 Robinson y. Post Office (C.A.) (974) Bolam v. Friern Hospital Management Committee [1957] 1 W.LR. 582, 587: “I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art... Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view. At the same time, that does not mean that a medical man can obstinately and pig- headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion.” Applying this test to the medical literature to which reference has been made it is clear, in our judgment, that Dr. McEwan was not bound in the exercise of due care to adopt the Sharrard in preference to the Smith school of thought. So far as the oral evidence was concemed, two wit- nesses with specialist knowledge in this field, Dr. Smith and Dr. Thompson, approved of the course taken, and Dr. Taylor, while he would not himself have given ATS, made it clear that he was expressing a personal opinion, and both he and Mr. Sharrard accepted that the case was one in which it would have been wrong to ignore any anti-tetanus precautions at all. Dr. McEwan, as already stated, himself accepted that in coming to his decision there had been present in his mind the possibility that he might be criticised, and perhaps sued, if he did not administer ATS and the patient then died of tetanus, but it is, in our view, asking too much of human nature that he should have excluded such a consideration entirely from his mind, and his evidence, which the judge clearly accepted, was that he considered the hazards both of giving and of withholding ATS. The judge obtained the impression that Dr. McEwan was ‘so to speak, wedded to ATS,” and it is, we think, clear that the doctor's approach to the problem was that, if there was a real risk of tetanus having developed in a wound, ATS should be given. The decision which he had to take, and to take as a matter of urgency, was a difficult one, and if in arriving at it he had put rather too much weight in the balance on one side we should have hesitated before finding him negligent, but, like the judge, we see no reason to conclude that he came, in all the circumstances, to a wrong decision. It was, in our judgment, a very relevant consideration that, although the risks of tetanus having developed in the wound did not amount to any high probability, they could not be dismissed as unreal, and the consequence, if they had materialised, would be likely to be fatal unless ATS were administered. We tum now to the second issue in the appeal. The clear effect both of the literature and of the oral evidence before the judge at the trial was that in the case of a patient who had already had an injection of ATS it was essential (and was probably in all cases desirable) that before inj of a full dose of 1,500 units of ATS a test dose should be administered with a view to ascertaining whether there was any reaction from the patient, and the procedure for this purpose, which the judge found was well recognised in 1968, was to inject just below the skin a test dose of 100 or 200 units and then, before administering the balance of the full dose, to wait for half an hour in order to see whether the patient showed any reaction, in which event it would be unwise to administer the rest of‘The Weekly Law Reports, October 4, 1974 1187 1 WLR. Robinson v. Post Office (C.A.) the dose. Mr, Sharrard’s own practice had been to adopt a more elaborate procedure involving consecutive tests for skin reaction and reaction from the deep tissues, but Dr. Thompson gave evidence that it was not usual in 1968 to apply more than one test. On the basis, however, which the judge accepted, of the single test, it was clear from the evidence of Dr. McEwan that he had not followed the recognised procedure but had used a procedure of his own, which was to inject a test dose of 300 units just below the skin, wait for half a minute or a minute with the needle in, and then in the absence of any reaction push in the needle deeper and administer the rest of the full dose. The reason he gave for adopting this procedure was that in his view a reaction by way of anaphylactic shock would manifest itself within the period of delay which he allowed, and in the absence of such a reaction he considered it safe to proceed. ‘The evidence, however, of Dr. Thompson was that such a brief delay was almost valueless and of Dr. Smith that it was not of great value, and the judge found that Dr. McEwan, in directing his test solely to anaphylactic shock, had left out of account other forms of reaction of which he must have been aware, and to which the judge (apparently rejecting in this respect certain evidence given by Dr. Smith) found that the established test procedure was directed, including local skin reaction and encephalitis. ‘On this basis, and rejecting as unconvincing a claim by Dr. McEwan that it was not possible to keep patients in a busy surgery for half an hour, the judge found that the doctor had been negligent in respect of his test dose procedure but having made this finding went on to hold, in the light of the plaintiff's subsequent history, that if the proper test dose procedure had been followed by waiting haif an hour before administering the full dose there would most probably in that time have been no reaction from the plaintiff and the full dose would then have been properly administer and that on this basis the doctor's negligence as to the test procedure di not cause or materially contribute to the plaintift’s injury. The validity of these conclusions, which forms the second issue in the appeal, involves questions both of fact and of law, of which it will be convenient to deal first with the questions of fact. The medical evidence on this issue, which was very brief and in some respects not entirely satisfactory, may be summarised as follows. Dr. Thompson gave evidence that there could after administration of ATS be a subsequent general reaction of which a test dose properly administered had given no indication, In answer to the question whether, in the light of the plaintiff's subsequent history, a test dose properly administered would have had no effect, he replied: “I do not think one can categorically say that.” There follows a passage in the transcript which does not make sense and we accept (on the basis of a note made at the time by Mr. Newey) that he may have said in answer to a further question that if the test dose had been properly administered there might or might not have been a reaction, Mr. Sharrard accepted that in an article “Tetanus Prophylaxis,” published in April 1965, he had referred to “the liability to delayed reactions even where all precautions, including a test dose, have been taken,” and that delayed reactions could arise in such circumstances, but Tater in his evidence claimed that, if a patient was so sensitive that he was Tiable to develop encephalitis or to be killed by the effects of the algae, the single test dose procedure would be quite enough to show it. Dr. Smith, when referred to this last answer of Mr. Sharrard, replied: “I do not think this is true.””‘The Weekly Law Reports, October 4, 1974 1188 Robinson v. Post Office (C-A.) lis74] The judge on this evidence found as a fact that, important as the test procedure was, it was not by any means a certain safeguard against reaction in that, even if the proper test dose procedure were observed and no sign of reaction appeared in half an hour, a patient could still react after a full dose was administered, and in such circumstances he considered that, provided the doctor had not been negligent in deciding to inject ATS at all, what followed would be the patient’s misfortune and not the doctor's fault, and he went on to find that in the light of the plaintifi’s subsequent history it was “as near certain as anything can be on an issue of this sort that a proper test dose would have made no difference.” In reaching these conclusions he made no reference to the medical evidence but we have no doubt that he had it in mind and in our judgment he was fully entitled, if he thought fit, to prefer the view expressed on this question by Dr. Smith to that of Mr. Sharrard, and in addition to conclude that Dr, Thompson, having regard to his first answer quoted above, had fallen short of saying that a proper test dose procedure would have been as likely as not to produce a reaction. But in any event this matter, in our view, was largely one of common sense and as a matter of common sense we entirely agree with the judge’s conclusion that a reaction which did not, after administra tion of even the full dose, arise on the plaintiff's way home or in his home until at earliest three days after the injection, was most unlikely to have manifested itself during the period of half an hour for which, if the test had been properly administered, he would have had to wait in the doctor’s surgery before a decision was taken to administer the full dose. The remaining question on this part of the appeal is whether the judge, having made these findings of fact which we hold to have been fully justified, was right in law in holding that Dr. McEwan was not liable in ‘damages to the plaintiff in respect of his negligence in the administration of the test dose, and we have come without any difficulty to the conclusion that he was right in so holding. Mr. Newey, rightly in our judgment, accepted that the question which, on the authority of Bonnington Castings Lid. v. Wardlaw [1956] A.C. 613 the judge had to ask himself for this purpose was whether the doctor’s negligence in this respect had caused or materially contributed to the plaintif’s injury, and plainly on the judge’s findings it had not. Recent applications of this principle are to be found in McWilliams v. Sir William Arrol & Co, Ltd, [1962] 1 WLR. 295 and Wigley v. British Vinegars Ltd. [1964] A.C. 307, where employers were found to have been in breach of duty in failing to supply safety belts to, in the first case, a steel erector and in the second a window cleaner, but it was found in each case that the employee would not have worn the belt if it had been provided, and that on this basis the employers were not liable. A further example, closer to the present facts, of the applica tion of the same principle is Barnett v. Chelsea and Kensington Hospital Management Committee [1969] 1 Q.B. 428 where it was held by Nield J. that, although a hospital casualty officer had been negligent in failing to see and examine a man, and in failing to admit him to the wards for treatment, the claim failed because, on the evidence, the man would have died of poisoning even if he had been admitted and treated with all due care. The same principle is, in our judgment, equally applicable to the present facts, and the decision of the House of Lords in McGhee v. National Coal Board [1973] 1 W.L.R. 1 (the first published report’ of‘The Weekly Law Reports, October 4, 1974 1189 1 WLR, Robinson v. Post Office (C-A.) which became available on the last day of hearing of the present case and was brought to the judge’s attention) is, in our judgment, no authority to the contrary. We would add, before leaving this issue, that it was accepted for the plaintiff and Dr. McEwan that on them rested the onus of establishing on a balance of probabilities that the negligence of Dr. McEwan in respect of the test dose did not cause or materially contribute to the injury; but in view of the terms of the judge’s findings nothing turns on the question of onus. There remains the final issue in the appeal, namely, whether the Post Office are entitled to be absolved from liability for the plaintifi’s encephalitis on the ground that they could not reasonably have foreseen that illness as a consequence of their admitted negligence, or that it was otherwise in law too remote a consequence of that negligence. With the second of these questions, which involves the concept of novus actus interveniens, we can deal very shortly, having regard to the judge’s findings of fact which we have upheld, and it will be convenient to deal with it first. ‘The judge having found that Dr. McEwan was not negligent in deciding to administer ATS, and that, although he was negligent in failing to administer a proper test dose, such negligence had no causative effect, it is, in our judgment, impossible for the Post Office to rely on any negligence of the doctor as a novus actus interveniens. It was, however, argued by Mr. Newey that conduct of the doctor’s falling short of negli- gence could amount to a novus actus. He relied in this respect on Lord Simonds’ approval in Hogan v. Bentinck West Hartley Collieries (Owners) Ltd. [1949] 1 All E.R. 588, 592 (a case involving the words “where . . . incapacity for work results from the injury” in section 9 (1) of the Work- men’s Compensation Act 1925) of a passage in which du Pareq LJ., in his judgment in Rothwell v. Caverswall Stone Co. Ltd. 1944] 2 All ER. 350, 365, had referred in the same context to “negligent or inefficient treatment by a doctor” as capable of amounting to a novus actus. We are by no means satisfied, having regard to subsequent references which he made at p, 593 to “the later negligent act of a doctor ” and at p. 594 to the “‘negligence of a surgeon” that in approving this passage Lord Simonds was intending to convey that treatment by a doctor falling short ‘of want of reasonable care could amount to a novus actus; and it is to be noted that Lord Reid, in his dissenting speech in Hogan v. Bentinck West Hartley Collieries (Owners) Ltd. [1949] 1 All E.R. 588, 607 (quoted in the judgment under appeal) considered that the dividing line in this respect was between “that degree of lack of skill or care which may make the doctor liable in damages and that which will not.” But it is unnecessary to pursue this question further for even if, which we doubt, the law is as Mr. Newey claimed, the short answer to his argument is that there was in the present case no finding by the judge or indication that he thought that Dr. McEwan had been inefficient in deciding to inject ATS; nor, in our view, would the judge have been justified in making such a finding. ‘Mr, Newey’s main argument, however, was that the onset of encephalitis, was not reasonably foreseeable and that on the basis of the decision of the Privy Council in Overseas Tankship (U.K.) Ltd. v. Morts Dock and Engineering Co. Ltd. (The Wagon Mound) [1961] A.C. 388, the Post Office should not be held liable for that consequence of the injury. In answer to this argument the plaintiff relied on the judgment of Lord Parker CJ. in Smith v. Leech Brain & Co. Ltd. [1962] 2 Q.B. 405. In that case an employee already suffering from premalignant changes had, as a resultThe Weekly Law Reports, October 4, 1974 1190 Robinson v. Post Office (C.A.) (1974) of his employers’ negligence, sustained a bum which the judge found to have been the promoting agent in the development of cancer from which the employee died, and in a fatal accident claim by his widow it was argued for the defendant employers that the development of cancer was unforesee- able and that on the basis of The Wagon Mound decision the claim should be dismissed. Lord Parker C\J., however, rejected this argument in the following passages from his judgment, at pp. 414-415, which are quoted in the judgment now under appeal: “For my part, I am quite satisfied that the Judicial Committee in The Wagon Mound case did not have what I may call, loosely, the thin- skull cases in mind, It has always been the law of this country that a tortfeasor takes his victim as he finds him, .. The test is not whether these employers could reasonably have foreseen that a burn would cause cancer and that he would die. The question is whether these employers could reasonably foresee the type of injury he suffered, namely, the bum, What, in the particular case, is the amount of damage which he suffers as a result of that bum, depends upon the characteristics and constitution of the vi It is to be noted, as pointed out in the judgment under appeal, that the last of these passages is supported by very similar language used by Lord Reid in the later case of Hughes v. Lord Advocate [1963] A.C. 837, 845. We have been referred on this issue to a large number of cases, most of them decided at first instance, and in refraining from referring to them all we intend no disrespect to the very helpful arguments addressed to us on both sides. The decision which in our view is closest on its facts to the present case is that of Parker J. in the Ontario High Court in Winteringham v. Rae (1966) 55 D.L.R. (2d) 108. There the plaintiff, who had been bitten by the defendant’s dog, was given ATS by a doctor in a normal and approved manner but toxic reaction set in, leading to serum neuritis, with the result that the plaintiff sustained permanent partial paralysis. The judge was not, apparently, referred to the Leech Brain case [1962] 2 Q.B. 405 but in agreement with the conclusion reached by Lord Parker C.J., in that case, held the defendant liable for the serum neuritis resulting from the treatment on the basis that a wrongdoer is liable for any increased injury to his victim which is due to the latter’s abnormal physical susceptibility, and that this principle had been accepted in English law long before the decision in In re Polemis and Furness, Withy & Co. Ltd. [1921] 3 K.B. 560, which the Privy Council in The Wagon Mound case [1961] A.C. 888 considered to be wrong in law. ‘Among the relevant United Kingdom decisions is that of this court in Bloor v. Liverpool Derricking and Carrying Co. Ltd. [1936] 3 All E.R. 399 where a derricker who had suffered a minor injury by falling into the hold of a barge later collapsed and died, by reason of a pre-existing heart condi- tion, when an anaesthetic was administered to him in hospital, and it was held that his employers were liable for his death. This case, however, was argued on novus actus interveniens and we bear in mind that it was decided before The Wagon Mound case and under the dominance of the earlier decision in In re Polemis. Among the relevant cases since The Wagon Mound are, however, the Scottish fatal accident claim in Oman v, McIntyre, 1962 S.L.T. 169 where a fat embolism resulted from leg fractures sus-