Airedale NHS [Law and morality - medical treatment - whether

Trust v Bland withdrawal of artificial feeding lawful - patient

[1993] HL in persistent vegetative state - maintenance of
life by artificial feeding]
Tony Bland seriously injured in the Hillsborough disaster, was
being kept alive only by extensive medical care (not a life-
support machine). He had survived for three years in persistent
vegetative state (PVS). He continued to breathe normally, but
was kept alive only by being fed through tubes. He had no
chance of recovery; his doctors (with the support of his family)
sought a declaration from the court that it would be lawful for
them to discontinue treatment so that he might die peacefully.

Held: Treatment could properly be withdrawn in such

circumstances, because the best interests of the patient did not
involve him being kept alive at all costs.

In this case feeding him was treatment and that treatment would
not cure him and therefore was not in his best interests.
It was lawful for D's doctors to stop feeding him artificially.

See also Frenchay Healthcare National Health Service Trust v S

[1994]. Similar issues can arise in respect of the very elderly or
in respect of babies born with very severe mental or physical
handicaps, especially where major (and possibly repeated)
surgery would be needed to keep them alive see Re J [1991].

It was lawful for D's doctors to stop feeding him

artificially. The court had no option but to make a
decision one way or the other.
Also here

Attorney [Law and morality - agreement to fight in public

Generals Ref place - not in public interest - does not affect
(No 6 of 1980) properly conduct sport - lawful chastisement -
CA reasonable surgical interference]
D aged 18 and the victim, aged 17, agreed to fight.

Held: Not in the public interest for people to cause or

try to cause each other actual bodily harm.
Per curiam. Properly conducted games and sports,
etc. OK

Acquitted at trial.

Baker v Hopkins [Law and morality - courts attitude to resucers - tort law]
[1959] CA DD, a firm of contractors who had been employed to clean out a
 well.
Fumes from a petrol engine 30 feet below ground level gave of
dangerous fumes.

Employees went down the well, and were overcome by the

fumes. C were the executors of the estate of a doctor who
attempted to rescue the employees, but in so doing was himself
overcome by the fumes. All three men died.

Held: D were liable for all the deaths including the doctor.
It was a natural and probable consequence of the defendants'
negligence towards the employees that someone would attempt
to rescue them; the defences of novus actus interveniens and
volenti non fit injuria could not be successfully relied upon
against the doctor's dependants.

Morris L.J.:
"If... A by negligence places B in peril in such circumstances that
it is a foreseeable result that someone will try to rescue B and if
C does so try - ought C in any appropriate sense to be described
as a ' volunteer'? In my judgment the answer is No...If C,
actuated by an impulsive desire to save life, acts bravely and
promptly and subjugates any timorous over-concern for his own
well-being or comfort, I cannot think that it would be either
rational or seemly to say that he freely and voluntarily agreed to
incur the risks of the situation which had been created by A's
negligence."
Haynes v Harwood [1935] KB applied.
C won

Bolam v Friern [Law and morality - defendant doctor may not

Hospital [1957] be liable provided he acted in accordance with
QBD general practice]
D, doctor failed to give a muscle relaxant;
Complainant suffered a fracture whilst he was
undergoing electro-convulsive therapy. Differences of
practice.

Held: Not negligent if he had acted in accordance

with practice

Complainants claim failed.

Brown, R v (1993) HL [ABH - harm caused - consent not relevant]
D1-5 engaged in various homosexual sadomasochistic practises in
private.
They used genital torture and inflicted injuries, willingly and
enthusiastically participating in the commission of acts of violence
against each other for the sexual pleasure it engendered in the
 giving and receiving of pain. None requiring medical treatment.

Held: The courts will interfere, liability did occur, but not if it were
a lawful act. Public policy, fear of proselytisation, corruption, cult of
violence and potential for serious harm.

Absence of consent is not an element of assault occasioning actual

bodily harm or unlawful wounding.

Consent is a defence to the infliction of bodily harm in the course of

some lawful activity, but ought not to be extended to
sadomasochistic encounters.

Lord Mustill, dissenting,

'these consensual private acts are [not] offences against the
existing law of violence',

Lord Slynn found no compelling reasons for creating criminal

liability.

Definition of assault:
"At common law, an assault is an act by which a person
intentionally or recklessly causes another to apprehend immediate
and unlawful personal violence and a battery is an act by which a
person intentionally or recklessly inflicts personal violence upon
another. However, the term 'assault,' is now, in both ordinary legal
usage and in statutes, regularly used to cover both assault and
battery."
All Guilty of ABH and three of wounding
Also here
Central London [Law and morality - the courts enforce a promise]
Property v High D leased a block of flats in London from C in 1937. When war
broke out, many flats were left empty as people were evacuated
Trees House to escape bombings. C agreed to reduce the rent by half if D
[1956] KBD stayed. D paid the reduced rent until the end of the war, and C
Denning J then claimed for the "arrears".

Held: Denning J "discovered" the equitable doctrine of

promissory estoppel, and said that although C were once again
entitled to the rent originally agreed after the war ended, they
could not go back on their promise to accept a reduced rent for
the earlier years.

When a party to a contract makes a promise to the other, which

he knows will be acted on, that he will not enforce his strict legal
rights; the equitable principle of promissory estoppel makes that
promise binding on him until such time as he gives reasonable
notice of his intention to resume those rights.

Denning J (obiter dicta) said that had Central London sued for
 the arrears for the years 1940-45, it would have failed. It would
have been estopped from going back on its promise [as set out in
the 1940 agreement] to accept a reduction in rental, even
though that promise had not been supported by any
consideration from High Trees because to hold otherwise would
have been unjust

Also here

Chadwick v British [Law and morality - courts approach to rescuers]

Railways Board
[1967] QBD D the railway board responsible for a major train accident caused
by their negligence. C the wife of a volunteer who took part in
rescue work suffered nervous shock and became psychoneurotic
as a result of his experiences.

Held: Damages were recoverable for nervous shock even where

the shock was not caused by fear for oneself or the safety of
one's children and in the circumstances injury by shock was
foreseeable.

D ought to have foreseen the existence of a rescuer and

accordingly owed him a duty.

C won
Also here

Clark v [Law and morality - defendant doctor may not

MacLennan be liable provided he acted in accordance with
[1983] general practice]
D, doctor operated to relieve stress incontinence after
birth one month after the birth normal practice three
months.

Held: D's departure from the general practice had not

been justified.

Complainants claim succeeded.

Cox, R v (1992) [Law and morality - doctors who kill may be murderers -
Winchester Crown double effect]
Court, Ognall J D, a GP injected a lethal dose of potassium chloride into his
patient V who shortly afterwards she died comparatively
peacefully. V Lillian Boyes was an elderly lady, terminally ill and
in constant severe pain. With the knowledge and approval of her
family, she asked D to end her suffering by hastening her death.

Held: D could not be charged with murder, because B had been

cremated before any suspicion arose and the cause of her death
 could not conclusively be proved, but the jury found him guilty of
attempted murder and the judge passed a suspended prison
sentence.

Guilty of attempted murder given a 12 month suspended

prison sentence
Also here
Dudley & [Law and morality - the law knows no defence of
Stephens, R v necessity]
Three sailors and a cabin boy were shipwrecked and were adrift
(1884) CCR in an open boat 1600 miles from land. After they had been eight
days without food, and six without water, DD decided that their
only chance of survival was to kill the cabin boy and eat him, and
this they did. Four days later they were picked up by a passing
ship, and on returning to England were convicted of murder.

Held: Necessity can never be a defence to murder. Their

sentence of death was later commuted to six months'
imprisonment.

Guilty
Also here
F v West [Law and morality - sterilisation of mentally
Berkshire handicapped person - voluntary in-patient at
Health Authority mental health hospital - inability of patient to
[1990] HL consent - court's jurisdiction to give or withhold
consent to operation]
D, health authority decided to have C (36 yrs)
sterilised, because of her mental capacity.

Held: It was in her best interests to be sterilised.

Sterilisation allowed

Fairchild v [Law and morality - tort - negligence - causation

Glenhaven breach of duty causing or materially
[2002] HL contributing to damage whether C able to
recover against 'either or both' employers]
Three conjoined appeals against an employer for
damages for negligent exposure to asbestos dust
which had caused a mesothelioma, but C could not
show during which employment he had suffered the
offending dust.

Held: C could succeed against either or both

employers, and it was up to them to sort out who
 would pay what proportion of the award.
Where
C had been employed by more than one
employer and,
D had a duty of care to prevent dust inhalation
and,
D had been in breach of that duty and,
C had contracted mesothelioma, and
any other cause of mesothelioma could be ruled
out but,
C could not (because of the limits of human
science) prove during which employment he had
inhaled the dust....
...C was entitled to recover against both his
employers.

That conclusion was consistent with principle, and with

authority, properly understood.
Where the conditions were satisfied, it was just and in
accordance with common sense to treat the conduct
of both employers in exposing the claimant to a risk to
which he should not have been exposed as making a
material contribution to the contracting by the
claimant of a condition against which it was the duty
of both employers to protect him.
Policy considerations weighed in favour of such a
conclusion. It was a conclusion which followed even if
one of the employers was not before the court.
It had not been suggested in argument that the
claimants entitlement against either employer should
be for any sum less than the full compensation to
which he was entitled, although either of them could
of course seek contribution against the other or
against any other employer liable in respect of the
same damage in the ordinary way.

C won
This decision was refined in Barker v Corus [2006] HL which
stated that damages should be set in proportion to the
amount of time a worker spent with a company.

Frenchay NHS ^[Law and morality - medical treatment - best

Trust v S [1993] interests of patient to allow to die - consent of
CA court to be obtained first]
D, the hospital where S aged 24 was a patient. S was
in a coma (PVS) following a drug overdose. Feeding
tube became detached consultant recommended to do
nothing.

Held: There was no reason to question the conclusion

of the consultant, who considered it in the best
interest of the patient not to operate to replace the
tube.

S allowed to die.

Gillick v West [Law and morality - whether doctor may give

Norfolk and advice and treatment on contraception to girl
Wisbech Area under 16 without parental consent]
Health Authority Mrs Gillick a Roman Catholic mother of five daughters sought a
[1986] HL declaration that a doctor would be acting unlawfully if he gave
contraceptive treatment for any of her daughters without the
mother's consent.

It was argued on the one hand that teenage pregnancies would

increase if the courts ruled that parental consent was necessary,
on the other hand that the judges would be encouraging under-
age sex if they did not.

Held: A doctor could prescribe contraceptives to a girl under 16

to prevent damage to her health, even though he knew it would
assist a man to have unlawful sexual intercourse.

By a majority of three to two. A child under 16 who can fully

understand the implications of the proposed treatment (a "Gillick
competent" child) can give her own consent to medical
treatment.

(Since Parliament had not legislated, the courts had to make a

decision one way or the other.)

Mrs Gillick lost

Also here
Howe, R v [Law and morality - judicial precedent HoL -
[1987] HL examples of departing - influenced by morality]
D took part with others in two separate murders, and
on a third occasion the intended victim escaped. D's
claim to have acted under duress was left to the jury
on two of the three counts, but D was convicted on all
three

Held: Using the Practice Statement, departed from its

decision in Lynch v DPP for Northern Ireland
[1975] to say that no participant (whether principal
or accessory) can claim duress in defence to a murder
charge.
In Lynch, the House of Lords had held that duress
was available as a defence to a person who had
participated in a murder as an aider and abettor. Not
to do so would produce the illogical result that, whilst
duress is a complete defence to all crimes less serious
than murder, it is not even a partial defence to a
charge of murder itself.
In R v Gotts [1992] the decision in Howe was
extended by holding that duress is not a defence to
attempted murder.

Lord Griffiths said:

" We face a rising tide of violence and terrorism
against which the law must stand firm recognising
that its highest duty is to protect the freedom and
lives of those that live under it. The sanctity of human
life lies at the root of this ideal and I would do nothing
to undermine it, be it ever so slight.
The prime factor in favour of overruling was that the
cases were simply wrong as a matter of morality. The
earlier cases had carved out a duress defence for
certain secondary parties and now the Lords basically
disagreed as a matter of morality with what had been
done. That Howe was decided in the context of
increased experience with and fear of IRA terrorism
cannot be overlooked. A secondary reason for the
overruling is connected with the Shivpuri factor that
the exceptions carved out in the earlier cases lead to
uncertainty in their application.
Human ^[Law and morality - artificial insemination -
Fertilisation and dead husband's sperm]
Embryology Dianne Blood's husband, Stephen, contracted
Authority Ex p. meningitis and lapsed into a coma. Samples of his
Blood, R v sperm were collected by electro-ejaculation for later
[1997] CA artificial insemination. Her husband died shortly after
the samples were obtained.

The Human Fertilisation and Embryology Authority

refused to give the necessary consent to treatment in
the UK citing the Human Fertilisation and Embryology
Act 1990 which required the written consent of a
donor to the taking of his sperm. They also refused to
authorise export of the sperm for treatment abroad.

Held: Medical treatment for a woman and a man

together could not occur after the man who had
provided the sperm had died.

The absence of the necessary written consent meant

that both Mrs Blood's treatment and the storage of
her husbands sperm were prohibited by the 1990 Act,
and any exceptions in the Act did not apply.

By virtue of arts 59 and 60 of the EC Treaty, Mrs

Blood, had a directly enforceable right to receive
medical treatment in another member state, and the
authoritys refusal to authorise the export of her
husbands sperm infringed that right since it made the
fertilisation treatment she sought impossible.

Mrs Blood was allowed to use the sperm abroad

[Comment]: Mrs Blood used the sperm in a Belgium
clinic and later gave birth to a boy, Liam.
She had a second son Joel. by the same method .
Under the Human Fertilisation and Embryology
(Deceased Fathers) Act 2003 act, mothers such Mrs
Blood whose children were conceived after their
father's deaths, are given a six-month "window" in
which to re-register their children's births.
Knuller v DPP [Law and morality - courts dictate morality]
[1973] HL D published a gay contact magazine thereby
conspiring to corrupt public morals.
 Held: In Shaw (1962) the House of Lords held that
the common law crime of "conspiracy to corrupt public
morals existed despite many commentators believing
that it did not exist; effectively the HoL created it.
Lord Reid had dissented in Shaw, and still believed it
to be wrong, but it did not follow that it should now be
reconsidered.
Lord Reid stated:
I dissented in Shaw's case. On reconsideration I still think that
the decision was wrong and I see no reason to alter anything
which I said in my speech. But it does not follow that I should
now support a motion to reconsider the decision. I have said
more than once in recent cases that our change of practice in no
longer regarding previous decisions of this House as absolutely
binding does not mean that whenever we think that a previous
decision was wrong we should reverse it. In the general interest
of certainty in the law we must be sure that there is some very
good reason before we so act.
Guilty
Nettleship v
Weston [1971] [Law and morality - decisions based on policy]
D a learner driver went out for her first lesson, supervised by a
CA
friend C. D crashed the car into a lamppost, and C was injured.

Also here
Held: Even learner drivers are to be judged against the standard
of the reasonably competent driver. The fact that a particular
driver is inexperienced and incompetent does not excuse his
falling short of this standard. It matters not that a learner driver
is doing her incompetent best.
Lord Denning applied policy considerations in deciding this case
because, he said, the injured person can recover damages from
the insurance policy; however the insured party must be at fault
first.

Denning LJ

"Thus we are, in this branch of the law, moving away

from the concept: 'No liability without fault'. We are
beginning to apply the test: 'On whom should the risk
fall?' Morally the learner-driver is not at fault;
but legally she is liable to be because she is insured
 and the risk should fall on her."

C won damages subject to a deduction for contributory

negligence.

Also here

Pretty v The [Law and Morality - right to die - euthanasia]

United Kingdom Diane Pretty was terminally ill with Motor Neurone
(2002) ECHR Disease. She wanted to obtain the right to be able to
request medical help to die at a time of her choosing.
Particularly, to be given a guarantee that her husband
would not be prosecuted for assisting her suicide in an
active way.

Held: Permission refused.

The Director of Public Prosecutions did not have the
power to give an undertaking that he would not
consent to prosecute the husband of a terminally-ill
woman if he helped his wife to commit suicide.

Mrs Pretty died on 11th May 2002 her case received

worldwide coverage. She was backed by the Voluntary
Euthanasia Society (VES).

R v R (rape - [Law and morality - changing attitudes]

marital D living apart from his wife raped her in her parents home,
which he had forcibly entered.
exemption)
[1991] HL Held: Abolishing a husband's 250 year old immunity from
criminal liability for raping his wife The long-standing rule that a
wife was deemed to have given her consent irrevocably was no
longer appropriate.

Lord Keith:
"This is not the creation of a new offence, it is the removal of a
common law fiction which has become anachronistic and
offensive and we consider that it is our duty having reached that
conclusion to act upon it"
Lord Keith thought this was an example of the common law
evolving in the light of changing social, economic and cultural
developments.

Guilty
Also here
Re A (Children) ^[Law and Morality conjoined twins CA not a
(2000) CA court of morals]
Jodie and Mary joined at the lower abdomen. Jodie's
heart and lungs provided oxygenated blood for both.
Whole case here Both would die shortly if nothing were done. If the
and here twins were separated, Jodie had a good chance of a
fairly "normal" life but the operation would cause the
immediate death of Mary. The twins' parents opposed
the application for religious reasons.

Held: Ward LJ said the court was not a court of

morals and considered that the operation would be
lawful self-defence i.e. the doctors would be coming to
the aid of Jodie.

Ward LJ:
"Mary may have a right to life, but she has little right
to be alive...[she] is killing Jodie... she sucks the
lifeblood of Jodie.
[Mary] will survive only so long as Jodie survives.
Jodie will not survive long because constitutionally she
will not be able to cope. Mary's parasitic living will be
the cause of Jodie's ceasing to live."

Brooke LJ said there could be no doubt that in English

law, a surgeon who performed the separation knowing
that it would inevitably hasten Mary's death would be
held to have caused that death and to have done so
intentionally, even though that would not have been
his primary motive. So far as the law was concerned,
the doctrine of double effect did not apply here
because Mary's death would not be a side-effect of
treatment that was in her best interests overall. The
defence of necessity would prevail:
'It has been said that there are three necessary
requirements for the application of the doctrine of
necessity. The act is needed to avoid inevitable and
irreparable evil. No more should be done than is
reasonably necessary for the purpose to be achieved.
The evil inflicted must not be disproportionate to the
evil avoided... I consider that all these requirements
are satisfied in this case.' [You should note that this is
 in variance with cases such as Dudley and Howe].
Permission of operation granted, operation
performed Mary died. The court expressly stated
that this case creates no precedent for future
cases.
Also here.

Re B (A Minor) [Law and morality - newly born Mongol child

(Wardship: Medical requiring operation to save life - parents
Treatment) [1981]
refusing consent - whether operation in child's
best interests]
D, local authority. Surgeon agreed with parents to
allow to die a child with Down's and complications.

Held: Best interests of the child that she should have

an operation, child could expect normal span of life of
a Mongol.

Child allowed to live.

Re B (adult: [Law and morality - the right to die]

refusal of D the hospital caring for the applicant Ms B who
medical asserted her common law right as a competent adult
treatment) to refuse life-sustaining treatment. Ms B became
[2002] FD tetraplegic and suffered complete paralysis from the
(Dame Elizabeth neck down, but she was able to move her head and
Butler-Sloss) speak. She gave formal instructions to the hospital
through her solicitors that she wished artificial
ventilation to be removed, even though she realised
that that would almost certainly result in her death.

D argued "ambivalence" evidenced by the fact that Ms

B had told the doctors that she was glad that effect
had not been given to an earlier advance directive
D also argued benevolent paternalism or parentalism
('doctor knows best') Dame Elizabeth Butler-Sloss
criticised this attitude in trenchant terms.

Held: It is established since Re T (adult: refusal of

medical treatment) that a competent adult may refuse
medical treatment, even if the likely result will be their
own death, and that refusal may be for reasons which
are rational, irrational, unknown or non-existent. This
 right has been confirmed in Airedale NHS Trust v Bland
[1993] HL and Re MB (an adult: medical treatment)
[1997], where can be found further ringing
endorsements of the right of a capable person to self-
determination.
Moreover, there is a presumption of capacity, and it is
for those asserting the right to override the patients
wishes to establish incapacity, rather than for the
patient to establish her own capacity: Re C (adult:
refusal of medical treatment).

Ms B was allowed to die and did so peacefully

some weeks later.

Re J (a Minor) [Law and morality - right of parents - to decide

[1991] CA on the medical treatment]
D, doctors decided not to use a ventilating machine
should baby J cease breathing. Baby suffered severe
mental and physical handicaps.

Held: It was the right of parents, and the court, to

decide on the medical treatment. But, there was no
absolute presumption in favour of life. Although there
was no right to kill, there was equally no requirement
to strive officiously to keep alive.

Mother's wishes approved; use of ventilator

allowed.

Re S (Adult [Law and morality - mental disorder - medical

Patient: treatment, consent to - sterilisation operation -
Sterilisation) Whether in patient's best interests]
(2000) CA S, a woman of 29 with severe learning difficulties had
a phobia about hospitals and whose periods caused
her distress. The mother's view that the major
advantage of the hysterectomy over a contraceptive
device was that it was a single procedure without the
need for any further surgical intervention

Held: Logically there could only be one best decision

in S's best interests and, as the weight of the medical
evidence supported the less invasive method as the
preferred option, the mothers concerns did not tilt the
 balance towards major irreversible surgery for
therapeutic purposes.
The Bolam test became irrelevant to the judicial
decision as to whether the treatment was in the
patient's best interests as that process required the
judge to have regard to the patient's welfare as the
paramount consideration.
Re F (Mental Patient: Sterilisation)[1990]
applied.

Patients appeal allowed

Re T [1992] CA [Law and morality - consent to medical

treatment - refusal of blood transfusion -
whether refusal effective - whether doctors
entitled to treat in accordance with patient's
best interests]
T aged 20 years old, 34 weeks' pregnant, did not want
a blood transfusion, because of her Jehovah's Witness
beliefs. Her father wanted transfusion given forthwith.

Held: Although an adult patient was entitled to refuse

consent to treatment such a refusal may have been
affected by illness, medication, false assumptions,
misinformation, or her will overborne.

Blood transfusion lawful

Re W (A Minor) [Law and morality - girl 16 refusing consent to

[1992] CA proposed treatment - whether absolutely
entitled to refuse treatment]
Local authority wanted to treat W against her wishes.
W had anorexia

Held: Law did not confer on a 16 an absolute right to

determine medical treatment. Minor's wishes, which
would be considered, could not overrule consent given
by the court. Best interests required immediate
treatment

W treated against her wishes

Roe v Ministry [Law and morality - defendant may not be liable

of Health provided he acted in accordance with general
[1954] CA practice]
D, anaesthetist gave a spinal aesthetic contained in an
ampoule, which had been contaminated with phenol.

Held: The danger of invisible cracks not known until

1951.

Complainants claim failed

Shaw v DPP (1962)

HL [Law and morality - courts attempts to dictate morality]
D conspired to corrupt public morals by publishing a booklet
containing details prostitutes, and their services. This was
hitherto an unused common law offence.

Held; Lord Tucker cited precedents for the offence.

Viscount Simonds;

In the sphere of criminal law, I entertain no doubt that there

remains in the courts of law a residual power to enforce the
supreme and fundamental purpose of the law, to conserve not
only the safety and order but also the moral welfare of the state,
and that it is their duty to guard it against attacks which may be
the more insidious because they are novel and unprepared for.

Lord Reid (dissenting) said there were widely differing opinions

as to how far the law should punish immoral acts done in private,

Some think that the law already goes too far, some that it does
not go far enough. Parliament is the proper place, and I am
firmly of opinion the only proper place, to settle that.

Guilty

Sheppard, R v [Law and morality - wilful neglect of child -

[1980] HL mens rea - accused genuinely failing to realise
child needed medical care - not an offence of
strict liability to be judged by the objective test
of what a reasonable parent would have done]
D's parents of 16-month-old son who died from
hypothermia and malnutrition.

Held: A genuine lack of appreciation that the child

needed medical care or failure through stupidity,
 ignorance or personal inadequacy to provide that care
were both good defences because wilfully neglecting a
child was not an offence of strict liability. Not to be
judged by the objective test of what a reasonable
parent would have done. The civil law concept of
negligence was not to be imported into the offence.

Not guilty

Sidaway v [Law and morality - defendant may not be liable

Bethlem Royal provided he acted in accordance with general
Hospital [1985] practice]
HL D, surgeon. Complainant not informed of risk, suffered
damage to the spinal cord.

Held: 'Bolam Test' applies to question of whether to

disclose risk.

Her claim failed

Stone & [Law and morality - manslaughter - assumption

Dobinson, R v of duty of care for infirm person - indifference to
[1977] CA obvious risk of injury to health - sufficient to
prove recklessness]
Ds lived with eccentric F, who was anorexic. F died in
bed.

Held:
(i) The defendants had assumed the duty of caring for
her.
(ii) Recklessness proved by indifference to an obvious
risk or actual foresight of the risk and running that
risk. Mere inadvertence, however, was insufficient to
prove recklessness.

Both guilty

Youssoupoff v MGM [Law and morality - morality shifting over time]

Pictures (1934) CA C complained that she could be identified with the
character Princess Natasha in the film 'Rasputin, the
Mad Monk'. The princess claimed damages on the
basis that the film suggested that, by reason of her
identification with 'Princess Natasha', she had been
seduced by Rasputin.

Held: The princess was awarded 25,000 damages.

It was contended that if the film indicated any
relations between Rasputin and 'Natasha' it indicated
a rape of Natasha and not a seduction.
Slesser LJ considered the film defamatory whether it
suggested rape or seduction:
I, for myself, cannot see that from the plaintiffs
point of view it matters in the least whether this libel
suggests that she has been seduced or ravished. The
question whether she is or is not the more or the less
moral seems to me immaterial in considering this
question whether she has been defamed, and for this
reason, that, as has been frequently pointed out in
libel, not only is the matter defamatory if it brings the
plaintiff into hatred, ridicule, or contempt by reason of
some moral discredit on her part, but also if it tends
to make the plaintiff be shunned and avoided and that
without any moral discredit on her part. It is for that
reason that persons who have been alleged to have
been insane, or to be suffering from certain disease,
and other cases where no direct moral responsibility
could be placed upon them, have been held to be
entitled to bring an action to protect their reputation
and their honour. One may, I think, take judicial
notice of the fact that a lady of whom it has been said
that she has been ravished, albeit against her will,
has suffered in social reputation and in opportunities
of receiving respectable consideration from the
world.
Later he added:
'When this woman is defamed in her sexual purity I
do not think that the precise manner in which she has
been despoiled of her innocence and virginity is a
matter which a jury can properly be asked to
consider.'