MANU/UKWA/0091/1985

Equivalent Citation: [1986]1All ER488

ENGLAND AND WALES COURT OF APPEAL (CIVIL DIVISION)

Decided On: 16.10.1985

Appellants: Eyre
Vs.
Respondent: Measday

Hon'ble Judges/Coram:
Slade, Purchas, LJJ. and Sir Roualeyn Cumming-Bruce, J.

Counsels:
For Appellant/Petitioner/Plaintiff: W.P. Andreae-Jones QC, Paul W. Reid, Stevens Drake
& Pope, Crawley

For Respondents/Defendant: Bernard Hargrove QC, Roderick Adams and Hempsons

JUDGMENT

Slade

This is an appeal by Mrs. Eyre, the Plaintiff, from a judgment of French J. given on 3
July 1984 in an action brought by her against the Defendant, Mr. Measday, in respect of
a gynaecological operation carried out by him on her.

The history of the matter is set out very clearly in the judgment of the judge and there
is no challenge to his findings of fact. I will gratefully adopt certain passages from his
judgment to explain the history of the matter:

"In 1978 the Plaintiff was some 35 years old. She was happily married, as
indeed she still is, and she had three children then aged roughly 16, 14 and
10. The family lived in Burgess Hill. She had been on the pill for ten or more
years, a sufficiently lengthy period for the Family Planning Association, who
used to advise her in such matters, to give her the advice that she should
discontinue the use of the pill because of her inevitably advancing years and
because of the increasing risk that some of the known side-effects of use of
the pill might adversely affect her health as time went on. The Plaintiff did
not want any more children, nor did her husband. She had a part-time job
and that brought a welcome addition to the family finances. She was even
thinking of taking a full-time job. She wanted to spend more time with her
husband. For all those reasons, she regarded her family as being sufficient
for her and her family. Accordingly, having been advised against the pill, she
had to consider other methods. She did not like the idea of other forms of
contraception. Her husband did not like the idea of having a vasectomy. So
she and her husband went to see their doctor and they decided between
them that the Plaintiff should undergo a sterilisation operation. The doctor
put them in touch with the Defendant. He is a well qualified and well
experienced consultant gynaecological surgeon and they saw him at his
consulting rooms in Hove. The Defendant spoke at some little length with the
Plaintiff and her husband and he carried out, obviously, a physical

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 examination of the Plaintiff. Having done so, it was agreed that he should
carry out a sterilisation by a procedure known as laparoscopy. I will describe
it in very bare and broad outline shortly. She was to have this operative
procedure on what was called a budget scheme. This involved her
undergoing the procedure as a private patient who had made a very modest
payment. This budget scheme was made necessary by the fact that at that
time, apparently, no facilities were available for such a procedure to be
carried out under the National Health Service in this part of the country. The
operation was duly performed at a clinic in the Brighton and Hove area. All
was well, it was supposed. The Plaintiff made a good recovery, although she
had some pain and discomfort which went on for a while. However, in April
1979 the Plaintiff discovered to her dismay, indeed one might almost say to
her horror, that she was pregnant and in October 1979 she gave birth to a
fine healthy boy. These events, of course, disrupted the plans of the Plaintiff
and her husband. The Plaintiff, with great good sense, decided that it was
right that she should let her pregnancy run full term. She would not
contemplate an abortion. Equally with great good sense, she decided that her
place was in the home as long as her new child was young enough to need
her close and immediate care. She will not go back to work until this new
child is ten or thereabouts. She is unable to enjoy the freedom that she
hoped she and her husband would enjoy together. Her first thoughts, of
course, were that the Defendant, in vulgar parlance, had made a mess of it,
made a mess of the operation. She still believes that, although with the good
sense which I am sure both she and her husband have in great measure she
has abandoned the allegation to the effect that there was something which
the Defendant did wrong in the course of the operation, and has done so on
the extremely sensible advice of her lawyers. The Defendant himself when he
learned of the pregnancy had the courtesy and humanity to ring up and say
how much he regretted this event happening, but I suppose that that
courteous act on his part may well have reinforced the Plaintiff's notion that
the Defendant was indeed at fault."

The judge proceeded to describe the operative technique used by the Defendant which
does not require description in this judgment. He then continued:

"The Defendant carried out this procedure successfully. It is true that in the
course of doing so he perforated the uterus, but that is an inevitable risk
involved in what might be called "keyhole" surgery of this sort, even though
while working through the "keyhole" one has the benefit of the device which
enables one to see, at least to some extent, what is going on beneath the
skin. However, the Plaintiff made an uneventful recovery from this minor
mishap of the perforation of the uterus. That apart, the operation proceeded,
on the face of things, perfectly satisfactorily."

Then the judge went on to record that this operation was followed by a pregnancy
which was indeed unwanted at the time, but said that it was characteristic of the
Plaintiff and her husband that, now that the baby had been born, he was a source of joy
and comfort to them and they are very far from experiencing any feelings of rejection
as far as he is concerned. Following this birth the Plaintiff had a further operation
designed to secure a more complete sterilisation.

I should also mention that before the Defendant performed the operation on her she
was asked to sign, and did sign, a form of consent, which reads as follows:

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 "I, Mrs. M. Eyre [her address is given] hereby consent to (myself
undergoing) ... the operation of lap. ster. [which means laparoscopy
sterilisation] the effect and nature of which have been explained to me. I
also consent to such further or alternative operative measures as may be
found to be necessary during the course of such operation, and to the
administration of a local or other anesthetic for any of the foregoing
purposes."

That was dated 17 November 1978.

The judge in the course of his judgment made a number of further material findings of
fact to which I think I should refer. He said:

"The risk of a pregnancy following such a procedure as I have described is

very small. It is of the order of 0.2% to 0.6%, that is to say 2 to 6 in every
1,000. There is no sterilisation procedure which is entirely without such a
risk. Some perhaps involve a higher risk of pregnancy; some a very much
lower risk. I learned to my surprise, and I have no doubt the Plaintiff and her
husband were equally surprised, that even a radical hysterectomy cannot be
guaranteed to prevent the patient who has undergone it conceiving. I
learned with even greater surprise that in highly exceptional cases a patient
who has undergone a radical hysterectomy may not only conceive but bear a
child, though, as I say and would emphasise, that is a most highly
exceptional circumstance. Still, it may happen. Thus it follows that no
surgeon can be 100% sure that by carrying out the operative procedure
designed to result in sterilisation he will succeed 100% surely in that
endeavour. It must follow that no surgeon can conscientiously guarantee to
his patient that it is 100% certain that that will be the result of the
operation ... [The Defendant agreed that] he did not specifically mention that
there was this 2 to 6 in a 1,000 risk of pregnancy following, but that was the
widely adopted practice back in 1978, and indeed it is still the practice in
some respectable gynaecological quarters even today ... It is equally clear
that the Defendant did emphasise to the Plaintiff and her husband that the
procedure was intended to be irreversible; that the Plaintiff must not
undergo this procedure supposing that it was simply another form of
contraception or that she could, if she wished, change her mind and have the
clips removed and restore her fertility. In emphasising the irreversibility of
the procedure, as few would doubt he was right to do, the Defendant again
was not giving the Plaintiff the full picture. There was, as I understand it, in
1978 a 10% chance that fertility might be restored following the procedure
which I have described, but equally clearly few would doubt that it would be
quite wrong, with a prospect of irreversibility of nine to one, for the
Defendant to have held out any hope, any real hope that is, that had the
Plaintiff changed her mind he could restore her prospects of conceiving a
further child."

Although I believe there was no specific finding of the judge to this effect, it has been
common ground between counsel on this appeal that (so far as this may be relevant) at
the date of the operation both the Plaintiff and her husband themselves believed that
the operation would have the effect of rendering the Plaintiff, beyond all possible doubt,
entirely incapable of bearing further children.

After the Plaintiff had conceived and borne another child, on 11 September 1981 she
issued a writ against the Defendant followed by a statement of claim, to the material

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part of which I should refer. In para 6 she alleged that he had performed the operation
negligently and in breach of the terms of his contract with her and of the duty of care
owed to her. Particulars of the alleged negligence and breach of contract were then
given in a number of sub-paragraphs. One of the instances of negligence relied on at
that time in para 6(iv) was the Defendant's failure to warn the Plaintiff of the failure
rate and the possibility of failure of the method of sterilisation employed by him. Then,
by para 7(A), (B) and (C) of the reamended pleading, the Plaintiff further claimed as
follows:

"(A) Alternatively the Defendant contracted to render the Plaintiff irreversibly

sterile.

(B) In the further alternative the Defendant warranted that the operation
would render the Plaintiff irreversibly sterile and thereby induced her to enter
into the contract for the operation.

(C) By reason of the birth the Defendant is in breach of the contract pleaded
in Paragraph 7(A) or the collateral warranty pleaded in Paragraph 7(B)."

Having summarised the evidence and made the findings of fact to which I have
referred, the judge concluded his judgment with the following passage, which sets out
both his conclusion and the essential reasons for it:

"That, in effect, is the evidence which was before me on which the Plaintiff
must rely to establish either a contractual term that the operative procedure
would be 100% successful in preventing future pregnancy or a collateral
warranty inducing the Plaintiff to undergo that operative procedure. The
highest the Plaintiff can put her case is that the use of the word "irreversible"
together with the absence of any mention of the minute risk of the procedure
being unsuccessful amount to such a contractual undertaking or collateral
warranty. I am sure the Plaintiff believes today that she had a guarantee.
She and her husband are, in my judgment, entirely honest people. But
despite that, I am sure the Defendant did not knowingly give the Plaintiff or
her husband such a guarantee. He could not possibly do so conscientiously.
In the result, I am by no means satisfied that, viewed objectively, what was
said in the Defendant's consulting room amounted to a contractual guarantee
or to a collateral warranty. No informed and officious bystander who heard
the Defendant telling the Plaintiff, as undoubtedly in my judgment he did,
that the procedure was intended to be irreversible and must be regarded as
irreversible could have supposed that he was thereby guaranteeing that the
Plaintiff would never become pregnant again. The conclusion I reach,
therefore, is that this claim must fail and there must be judgment for the
Defendant."

By the time the judge came to deliver judgment the Plaintiff, by her counsel, had
abandoned all her claims under para 6 of the remanded statement of claim based on
negligence and breach of contract so the judge's judgment was essentially directed to
the allegations in para 7(A), (B) and (C) of that pleading.

The outstanding issues raised by the proceedings and on this appeal seem to me to
resolve themselves essentially to two. (1) Was the nature of the contract between the
Plaintiff and the Defendant one by which the Defendant contracted to render the
Plaintiff 100% sterile? (2) If it was not, did the contract contain a warranty by the
Defendant, express or implied, to the effect that the operation which he was to perform

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on her would have this effect?

Before reverting to the facts of the present case, I should, I think, refer briefly to a
decision of Peter Pain J. in Thake v. Maurice on which counsel for the Plaintiff relied. In
that case the Plaintiffs, who were husband and wife, had contracted with the Defendant
surgeon that he would perform a vasectomy operation on the Plaintiff husband. Prior to
the making of the contract, the Defendant had explained to the Plaintiffs the nature of
the operation and that, subject to an uncertain possibility of surgical reversal, it was
irreversible. In stressing the irreversible nature of the operation, he had failed to warn
the Plaintiffs that there was a small risk that after the operation the first Plaintiff would
become fertile again. The operation was competently performed but, nevertheless, in
due course the Plaintiff husband again became fertile and the Plaintiff wife conceived.
They then brought an action against the Defendant for breach of contract and breach of
collateral warranty, misrepresentation and breach of the Defendant's contractual duty of
care, and claimed damages. Peter Pain J. gave judgment in favour of the Plaintiffs and
held that the nature of the contract entered into by the parties on the particular facts of
that case was not merely a contract to perform a vasectomy but a contract to render
the Plaintiff husband completely sterile.

There is thus a strong superficial similarity between the facts of that case and the
present case. Nevertheless, I, for my part, find it of no real assistance in reaching the
decision which we have to reach, because it seems to me there are several material
differences between the facts of that case and this. I will mention only some of them.
First, consent forms had been signed in that case by the Plaintiffs, which were in a form
different from and wider than the consent form that has been signed in the present
case. Second, the judge was dealing with an operation of sterilisation which had been
performed on a man, not a woman. It seems to me quite possible that different
considerations of fact may relate to such an operation. Third, it seems clear from the
judge's judgment that in that case it was common ground that there was a need for a
warning to be given to the Plaintiffs that the operation in question might not achieve its
desired result. There has been no such common ground in the present case.

Thake v. Maurice, we have been told, is to be heard on appeal next month. I, for my
part, think that, in all the circumstances, the less we say about that decision the better.
There was an alternative claim, as I have already indicated, based on a so-called
collateral warranty or misrepresentation. As to this Peter Pain J. expressed certain
obiter views in case he was wrong on his view as to the nature of the contract itself.
But, again, with all respect to him, I do not find that the views which he expressed in
that very different context are really of any great assistance to us, and I pass them by.

It is, I think, common ground that the relevant contract between the parties in the
present case was embodied as to part in the oral conversations which took place
between the Plaintiff and her husband and the Defendant at the Defendant's consulting
rooms, and as to the other part in the written form of consent signed by the Plaintiff,
which referred to the explanation of the operation which had been given in that
conversation. It is also common ground, I think, that, in order to ascertain what was
the nature and what were the terms of that contract, this Court has to apply an
objective rather than a subjective test. The test thus does not depend on what either
the Plaintiff or the Defendant thought were the terms of the contract in her or his own
mind. It depends on what the court objectively considers that the words used by the
respective parties must be reasonably taken to have meant. It would, therefore, be of
no assistance to the Defendant to say that he did not intend to enter into a contract
which absolutely guaranteed the Plaintiff's future sterility. It would likewise be of no
assistance to the Plaintiff to say that she firmly believed that she was being offered a

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contract of this nature.

I now turn to the first of the two principal issues which I have indicated. At the start of
his argument for the Plaintiff counsel indicated that his primary ground of appeal would
be that the effect of the contract between the Plaintiff and the Defendant was one by
which the Defendant contracted to render the Plaintiff absolutely sterile. That, of
course, was the effect of Peter Pain J's. decision on the particular facts of Thake v.
Maurice. Nevertheless, on the facts of this case, I, for my part, find this contention
quite impossible to sustain. It seems to me quite clear from the evidence which we
have as to the conversation which took place between the Plaintiff and her husband and
the Defendant at the Defendant's consulting rooms that he explained to them that the
operation which he would propose to perform on the Plaintiff was an operation by way
of laparoscopic sterilisation and that that was the method he intended to adopt and no
other. Equally, that was the nature of the operation to which the Plaintiff herself agreed,
as is shown by the form of consent which she signed. The contract was, to my mind,
plainly a contract by the Defendant to perform that particular operation.

The matter may be tested in this way. Suppose that when the Plaintiff had been under
anesthetic the Defendant had formed the view that an even more effective way of
sterilising her would be to perform a hysterectomy and had carried out that operation,
the Plaintiff would, of course, have had the strongest grounds for complaint. She could
have said:

"I did not give you a general discretion to perform such operation as you saw
fit for the purpose of sterilizing me. I gave my consent to one particular form
of operation. That was the operation I asked you to do and that was the
operation you agreed to do."

In the end, as I understood him, counsel for the Plaintiff did not feel able to press his
argument on the first issue very strongly. The nature of the contract was, in my view,
indubitably one to perform a laparoscopic sterilisation.

That, however, is by no means the end of the matter. The question still arises: did the
Defendant give either an express warranty or an implied warranty to the effect that the
result of the operation when performed would be to leave the Plaintiff absolutely sterile?
In response to our inquiry counsel for the Plaintiff helpfully listed the two particular
passages in the evidence on which he relied for the purpose of asserting that there was
an express warranty. The first was a passage where, in the course of examination by
her counsel, the Plaintiff said:

"We went to the consulting rooms and we saw Mr. Measday and we
discussed sterilisation. He told us the method that he used for sterilising was
the clip. He told us once I had had it done it was irreversible."

Counsel for the Plaintiff also relied on a passage in which the Plaintiff was asked in
chief:

"Q. Did he show you a clip? A. He showed us a clip and he also showed us
the diagram and told us where the the clips would go on the tubes. He said
once I had the operation done there was no turning back, I could not have it
reversed."

Counsel for the Plaintiff referred us to para 2 of the defence in the action which read as
follows:

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 "On the 30th October 1978 the Plaintiff consulted the Defendant about an
operation of sterilisation. The Defendant examined her and agreed to carry
out the operation and advised her that it must be regarded as a permanent
procedure. He did not warn the Plaintiff of the slight risk of failure, nor did he
guarantee success."

There was thus a specific admission in the defence that the Defendant advised the
Plaintiff that it must be 'regarded as a permanent procedure'.

In the light of these various representations or statements by the Defendant, counsel

for the Plaintiff submitted that it was being expressly represented to the Plaintiff that
the effect of the operation would be to render her sterile absolutely and for ever. I, for
my part, cannot accept that submission. There has been some discussion in the course
of argument on the meaning of the phrase 'irreversible' and as to the relevance of the
statement, undoubtedly made by the Defendant to the Plaintiff, that the proposed
operation must be regarded as being irreversible. However, I take the reference to
irreversibility as simply meaning that the operative procedure in question is incapable of
being reversed, that what is about to be done cannot be undone. I do not think it can
reasonably be construed as a representation that the operation is bound to achieve its
acknowledged object, which is a different matter altogether. For my part, I cannot spell
out any such express warranty as is asserted from the particular passages in the
evidence and in the pleadings relied on by counsel for the Plaintiff to support it, or from
any other parts of the evidence.

In the alternative, however, counsel for the Plaintiff relies on an implied warranty. In
this context he relies particularly on what, if I may say so, seems to me to have been a
skilful piece of cross-examination by himself of the Defendant and on the answers given
by the Defendant in the course of that cross-examination. It is very short and I think I
should read it in full:

"Q. There is no doubt Mrs. Eyre wanted to be sterilised; that is right, is it

not? A. Yes.

Q. She did not want there to be any question at all of her being pregnant
again, that for her had come to an end? A. Yes.

Q. Did you say anything at all at the consultation which might have left her
with the impression that she was capable of becoming pregnant again? A.
No, I think not.

Q. Would it have been reasonable for her to have gone away from your
consulting rooms thinking that she would be sterilised and that would be the
end of the matter? A. Yes, it would.

Q. And equally for Mr. Eyre? A. Yes.

Q. Indeed, your own defence in para 2 indicates that you advised her it must
be regarded as a permanent procedure. Is that the effect of the advice which
you gave her? A. Yes.

Q. When you wrote to Doctor Dearing on 30 October and said, "Everybody is

very happy with it and realises it will be a permanent procedure," that was
your anticipation and reasonably hers? A. Yes.

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 Q. The consent form, exhibit P3, indicates that the effect and nature of the
operation had been explained to her, and the effect of the operation was to
render her almost certainly sterile rather than sterile, was it not? A. Yes.

Q. But in fact that particular effect was never explained to her? A. No, I think
not."

The test to be applied by the court in considering whether a term can or cannot
properly be implied in a contract is that embodied in what is frequently called the
doctrine of The Moorcock. It is conveniently set out in 9 Halsbury's Laws (4th edn):

"A term can only be implied if it is necessary in the business sense to give
efficacy to the contract; that is if it is such a term that it can confidently be
said that if at the time the contract was being negotiated someone had said
to the parties, "What will happen in such a case", they would both have
replied, "Of course, so and so will happen; we did not trouble to say that; it
is too clear.""

Counsel for the Plaintiff, in the light of the passage in cross-examination which I have
just read and in the light of all the other background of the case to which I have
referred, submitted that if someone had said to the parties, 'Is it intended that the
Defendant should warrant that the operation will render the Plaintiff absolutely sterile?',
the answer of both parties must have been, 'Yes.' This, he submitted, is really the only
possible-inference from what had been said on both sides in the Defendant's consulting
rooms. He particularly drew attention to the question that he had put to the Defendant,
'Would it have been reasonable for her to have gone away from your consulting rooms
thinking that she would be sterilised and that would be the end of the matter?', To
which the Defendant had replied, 'Yes, it would.' Counsel for the Plaintiff submitted that
the Defendant himself was thus acknowledging that the reasonable inference would
have been as he suggested.

Applying The Moorcock principles, I think there is no doubt that the Plaintiff would have
been entitled reasonably to assume that the Defendant was warranting that the
operation would be performed with reasonable care and skill. That, I think, would have
been the inevitable inference to be drawn, from an objective standpoint, from the
relevant discussion between the parties. The contract did, in my opinion, include an
implied warranty of that nature. However, that inference on its own does not enable the
Plaintiff to succeed in the present case. She has to go further. She has to suggest, and
it is suggested on her behalf, that the Defendant, by necessary implication, committed
himself to an unqualified guarantee as to the success of the particular operation
proposed, in achieving its purpose of sterilising her, even though he were to exercise all
due care and skill in performing it. The suggestion is that the guarantee went beyond
due care and skill and extended to an unqualified warranty that the Plaintiff would be
absolutely sterile.

On the facts of the present case, I do not think that any intelligent lay bystander (let
alone another medical man), on hearing the discussion which took place between the
Defendant and the other two parties, could have reasonably drawn the inference that
the Defendant was intending to give any warranty of this nature. It is true that in cross-
examination he admitted that it would have been reasonable for the Plaintiff to have
gone away from his consulting rooms thinking that she would be sterilised. He did not,
however, admit that it would have been reasonable for her to have left his consulting
rooms thinking that he had given her a guarantee that after the operation she would be
absolutely sterile; this, I think, is the really relevant point. She has to say that this

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would have been the reasonable inference from what he said to her and from what she
and her husband said to him. But, in my opinion, in the absence of any express
warranty, the court should be slow to imply against a medical man an unqualified
warranty as to the results of an intended operation, for the very simple reason that,
objectively speaking, it is most unlikely that a responsible medical man would intend to
give a warranty of this nature. Of course, objectively speaking, it is likely that he would
give a guarantee that he would do what he had undertaken to do with reasonable care
and skill; but it is quite another matter to say that he has committed himself to the
extent suggested in the present case.

For these reasons, which are much the same as those given by the judge, more
succinctly, at the end of his judgment, I think that he reached the right conclusion. I am
unable to accept the submission of counsel for the Plaintiff that the judge failed to pay
due attention to the answers given by the Defendant in cross-examination on which he
relies so strongly.

I would stress that, on this appeal, this Court has not had to consider the allegations of
negligence which were originally pleaded because, no doubt after good and careful
consideration, these have been abandoned.

Finally, I would say that I have some sympathy with the Plaintiff and her husband, first,
because of the shock they must have experienced when they discovered that, against
all their expectations and, indeed, against all the odds, the Plaintiff was pregnant and,
second, because they themselves clearly believed that the operation would have the
effect of rendering her absolutely sterile. But, for the reasons which I have tried to
explain, that belief is itself of no assistance to them as a matter of law. I am afraid that,
in my view, if

they had wanted a guarantee of the nature which they now assert, they should have
specifically asked for it.

For these reasons, I, for my part, would dismiss this appeal.

Purchas

The issues raised in this appeal fall within a small compass. The operation, which has
already been described by Slade LJ., was, for the purposes of this appeal, performed in
a competent manner in accordance with an agreement between the parties. Allegations
of negligence which were originally made are no longer pursued, but the essential
questions arise:

(1) what were the terms of the contract, and

(2) was there any express of implied collateral warranty on which the Plaintiff
could rely?

On the first question the Plaintiff asserted that the contract was that the Defendant
undertook, by means of an identified surgical procedure, to render her sterile in the
sense that she could not at any time thereafter become pregnant. It is not disputed that
this was the state of the Plaintiff's mind at the material time, and the Defendant, in the
passage already cited by Slade LJ., accepted that it was reasonable for her to have this
belief. The Defendant's case, which was accepted by the judge, was that the only
contractual obligation on the Defendant was to carry out the operation described with
appropriate skill and care.

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For their part, it is clear from the evidence that the Plaintiff and her husband both
thought that in emphasising, as he did, that the procedure was irreversible, the
Defendant was giving an express warranty that the result of the operation would be, as
a matter of 100% certainty, that the Plaintiff would be rendered sterile. This was a
misunderstanding. The purpose of the Defendant, in giving this warning, was to prevent
any idea in the Plaintiff that, if at some future date she so wished, the procedure could
be reversed and she would become fertile again.

Counsel for the Plaintiff accepts the misunderstanding and goes further in his
submissions, saying that the word 'irreversible' has obscured the real central word of
the contract, which was 'sterile'. He puts his case in contract on this word, i.e. a
contract to render the Plaintiff sterile. The judge considered this submission in the
context of the evidence and also the consent form which was signed by the Plaintiff
describing the nature of the operation, already set out in Slade LJ's. judgment, and
came to this conclusion. First he said:

"Thus it follows that no surgeon can be 100% sure that by carrying out the
operative procedure designed to result in sterilisation he will succeed 100%
surely in that endeavour. It must follow that no surgeon can conscientiously
guarantee to his patient that it is 100% certain that that will be the result of
the operation. The Plaintiff says that that is precisely what this Defendant
did, that he gave her such a guarantee and that he is inevitably in breach of
it."

Subsequently, having set out the respective versions of the Plaintiff and the Defendant,
the judge made this finding of fact:

"But despite that, I am sure the Defendant did not knowingly give the
Plaintiff or her husband such a guarantee. He could not possibly do so
conscientiously. In the result, I am by no means satisfied that, viewed
objectively, what was said in the Defendant's consulting room amounted to a
contractual guarantee or to a collateral warranty."

In my judgment, the judge was perfectly justified and correct in reaching that finding,
particularly in view of the misunderstanding relating to the word 'irreversible' which led
the Plaintiff and her husband perfectly genuinely to believe that they were being given
this guarantee.

Turning now to the second question, the implication of a term or a collateral warranty
that the result would be guaranteed is, in my judgment, quite impossible in view of the
authority of The Moorcock which has already been referred to by Slade LJ. Again, the
impression gained by the Plaintiff and her husband from the Defendant's remarks about
irreversibility do not, in my judgment, afford to the Plaintiff a basis on which a collateral
warranty could be founded. It is true that as a matter of deliberate election the
Defendant did not, in the course of describing the operation which he was
recommending, disclose that there was a very small risk, one might almost say an
insignificant risk, that the Plaintiff might become pregnant. In withholding this
information it must be borne in mind, first that the Defendant must have believed that
the Plaintiff would be sterile, second that the chances were extremely remote that the
operation would be unsuccessful, third that in withholding this information the
Defendant was following a practice acceptable to current professional standards and
was acting in the best interests of the Plaintiff, and, fourth that no allegation of
negligence in failing to give this information to the Plaintiff is pursued any longer in this
case. There are, therefore, in my judgment, no grounds for asserting that the result

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would necessarily be 100% successful.

For these reasons and for those already given by Slade LJ., I agree that this appeal
must fail. But, before parting with this judgment, I would like to associate myself with
the expressions of sympathy that have fallen from Slade LJ. for the Plaintiff and her
husband in what must have been at the time an extremely distressing experience.
Fortunately, we are told that there is now a further member of the family happily
accepted into that family.

Sir Roualeyn Cumming-Bruce

I agree that the appeal should be dismissed for the reasons stated in the judgments of
Slade and Purchas LJJ.

Manupatra Information Solutions Pvt. Ltd.

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