Tort of Negligence



Tort of Negligence

Introduction

In the tort of negligence, professional persons are not judged according to the proverbial standard expected by “the man on the Clapham omnibus”. Instead the Bolam test is applied. In that case the claimant suffered a fractured pelvis while undergoing electro-convulsive therapy. It was alleged that the doctor had departed from the practice of some fellow professionals at the time by failing to administer a relaxant drug and failing to provide an effective means of restraint.

Analysis

Evidence was received of a variety of contemporary practices in respect of such treatment. Mc Nair J stated that professional persons were governed by the accepted practices of their peers in the application of their particular calling or skill:

“The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is established law that it is sufficient if he exercises the skills of an ordinary competent man exercising that particular art.” McNair J relied upon the dicta of Lord President Clyde in Hunter v Hanley :

In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill and knowledge than others would have shown. The true test in establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care.

Thus there will be careful consideration of the state of professional knowledge and expertise at the time of the injury. In Roe v Ministry of Health, the plaintiffs were paralysed when contaminated anaesthetic was administered to them during the course of their operations. Lord Denning concluded that the anaesthetist did not know at the time of the operation that such cracks might exist and did not therefore guard against such dangers. Upon being duly reversed on this occasion also, Lord Edmund Davies commented that the phrase “error of judgment” was wholly ambiguous:

“…while some such errors may be completely consistent with the due exercise of professional skill, other acts or omissions in the course of exercising clinical judgment may be so glaringly below proper standards as to make a finding of negligence inevitable.”

The Bolam principle was the subject of some controversy in Sidaway v Governors of the Bethlem Royal Hospital . The patient underwent an operation to her spine which involved a 1-2% risk of injury to her spinal cord and consequent paralysis. Lords Bridge and Keith agreed with expert evidence that non-disclosure in such a situation was the accepted practice of a competent body of medical opinion and that this therefore afforded a complete defence to the claim. Nonetheless, Lord Bridge did not accept that the Bolam approach would apply in every instance and that even where there ...