Compensation culture is largely thought to be a product of the latter twentieth century, but here we have a case from the mid-nineteenth century. On 5 April 1845, Richard Gibbs sued Robert James Tunaley, a surgeon of Wymondham, Norfolk, for malpractice and compensation of ,000 at the Lent Session of the Norfolk Assizes.

Richard Gibbs, a teenage labourer, was injured while employed on the construction of the Norwich and Brandon Railway near Wymondham. At the time, spoil was being moved using a system of wagons on rails. The filled wagons were initially pulled into motion using a horse. Once the wagons were rolling, the horse was turned away and the wagons allowed to run on their own. Richard Gibbs was in charge of the horse. Around 9am on Monday 5th August 1844, having turned the horse away, he stumbled and a wheel of one of the wagons ran over his heel. John Davidson, who witnessed the accident, carried him, the three-quarters of a mile, to his sister’s in Damgate Street, Wymondham. Richard Gibbs belonged to the Railroad Labourers Club, which provided relief in sickness and injury. Robert Tunaley, was retained by the club and on being sent for came immediately, arriving within ten minutes.

Gibbs injury eventually turned gangrenous and his foot had to be amputated. The case was based on the claim by him and his mother that Mr Tunaley’s treatment of the wound caused the deterioration of the wound and led to the amputation. This was of course contested by Tunaley.

The wagon loaded with earth weighed five tons and crushed his heel, doing considerable damage, although his boot had not been cut. Tunaley thought the ankle was dislocated and there was a fracture, but there was no arterial bleeding. The tissue, nerves and blood vessels were so compressed that their functions were damaged or destroyed. He drew the wound together with adhesive plaster, covered it with lint and applied a bandage. However, he was at that time of the opinion that amputation would in all probability be necessary.

Tunaley was sent for again that day, between 1pm and 2pm, but was unable to attend as he was attending a lady in labour. Consequently, his wife sent William Skoulding a druggist of Wymondham, who applied a lotion to keep down the inflamation. Tunaley attended an hour and a half later and twice again before bedtime. He attended again two or three times the next day; partially removing the bandage at the morning visit and prescribed a fever medicine. He visited twice again on the Wednesday accompanied by his servant, Joseph Webster, who held the leg while he replaced the bandages. On returning home he explained the situation to Mr Cooper, a surgeon of Hingham, and requested his assistance should amputation become necessary. Visits were made again on the Thursday, as usual accompanied by Joseph Webster, and Gibbs foot and leg was put into a splint to steady them as the patient did not have a proper bed. By Saturday the fever was worse and Tunaley began to fear that the boy would not recover. On Sunday the fever was less but he was very weak and the foot and ankle were worse. Dilute nitric acid lotion was applied and quinine and opium were given internally. On Thursday, Tunaley together with Webster and Skoulding visited for the last time. He said he did not amputate the foot because Gibbs was in such a precarious state of health.

Mr Lewis Lewis of Wymondham, at the request of Sarah Gibbs, Richard’s mother, took over the treatment. He said he would not have dealt with it the same way. He removed the bandage and applied a poultice, but by now the foot and lower leg were turning black. The foot was finally amputated by him on the following Thursday, 21st August, under the superintendence of Mr Mills a surgeon from Norwich and Mr Colman a surgeon of Wymondham.

Matthew Cooper the surgeon from Hingham on the behalf of Robert Tunaley applied to Lewis to view the amputated limb. Lewis claimed to not know where it was. He admitted that it had been in his possession but he thought someone had been playing tricks with the parts and had taken them away. When Cooper called again a few days later, Lewis said the parts were lost but he would have his privy searched for them. The limb was not forthcoming but Cooper thought it very unlikely that a bandage could have been applied sufficiently tight to have caused the gangrene.

It appears that Tunaley was not on good terms with Colman and Lewis. After Lewis was called in, injurious reports were circulated in the neighbourhood as to the want of skill and the care and attention of Tunaley in the treatment of this case. It appears that Lewis and Colinan were determined to persuade the friends of Gibbs to take legal proceedings against him. Lewis Lewis for the five years he had been in Wymondham had been antagonistic to Tunaley. He seems to have been a questionable character. He claimed to have been the assistant to Amos Kennedy, a surgeon of Stratford, Essex, but this was untrue. He was not a member of the College of Surgeons. There was a druggist shop in Stratford but that belonged to his brother Price Lewis. He also claimed to have been assistant to a surgeon of Mildenhall, Suffolk. He was also reported as saying he would not mind spending £100 for the purpose of bringing action against Tunaley. Mr Davidson, the Manager of the Railway Sick Club, was also asked by Lewis and Colman to instigate proceedings against Tunaley. Colman was a Member of the College of Surgeons and a Licentiate of the Apothecary Company. George Blake, an acquaintance of the Gibbs family, on asking where the money for the action was coming from was told by Sarah Gibbs that the family were not to be called upon for any expense and it would be paid for by Lewis and Colman.

The case against Tunaley stemmed from the visit of William Skoulding to the patient on the day of the accident. Skoulding applied a tight bandage to stop the bleeding, which he claimed he had advised Tunaley to loosen later in the day. Mrs Sarah Gibbs the patient’s mother and Mrs Ayton, “a woman of questionable character,” who were looking after him, claimed that the bandages were not undone until 13th August. Mrs Gibbs stated that only once did she see the defendant, Tunaley, do anything when he attended, and that was in the second week when he just placed his fingers on the bandage and asked her son where the pain was. The case for the plaintiff, Richard Gibbs, was that the lack of skill of Tunaley had caused the mortification and led to the amputation of the foot. However, Joseph Webster stated that Tunaley had removed the bandages and cleaned the wound two days after the accident. Mrs Gibbs also claimed that she had asked Tunaley several times why he had not brought another doctor to look at the patient, and that he had never suggested that the foot might need amputating. On the other hand Mr Johnson stated that Sarah Gibbs had been quite satisfied with the treatment before Lewis was called in. Moreover, two other witnesses stated that the two women had both acknowledged changing the bandage. The defence council suggested that Mrs Gibbs and Mrs Ayton had committed perjury. But the presiding judge, Mr Baron Parke said that perjury could not be imputed by either side.

Mr J. G. Crosse, a surgeon of Norwich, gave evidence that he thou the treatment had been proper and any pressure from the bandage would not have caused the mortification. This view was supported by other witnesses for the defendant:- Dr. Evans, Mr. J. G. Johnson, a surgeon of the Norfolk and Norwich Hospital and Mr. Benjamin Norgate, a surgeon of Norwich.

In summing up, Judge Parke said that a medical man was expected to devote to his patient ordinary skill, care and attention and no more, because it was not to be expected that a surgeon pursuing his profession in a country town could exhibit that skill which those who lived in great towns had so many opportunities of testing by that best of all tests, experience. It was not, however, sought to be maintained that there was a want of care and attention; the charge was that in consequence of a want of skill the plaintiff had suffered injury and lost his limb. The question for the jury to consider was whether the want of due attention had been made out, and whether the result of that want of attention had been to the extent the plaintiff alleged.

The jury retired and when the time reached five minutes to midnight, it being Friday, the Clerk told them if they did not make up their minds, as the clock struck they would be locked up until Monday morning. The case at this point had lasted almost fifteen hours. This threat apparently had the desired effect as after a few seconds they returned a verdict in favour of the plaintiff Richard Gibbs. However, it appears that the Learned Judge was probably not entirely in agreement with this somewhat hasty decision as he only awarded damages of one farthing.

Documentary Sources

The Wymondham Town Archive.

The Norwich Mercury.