Negligence: Standard of Care

What is Standard of Care

o What is the level of duty imposed onto the DF

o Level can be defined by type, quantitative or meet up to the expectations of the duty determined by what society expects from them

o It is a purely factual enquiry rather than a legal one

Difference between DUTY and SoC

o Legal test vs factual enquiry

o Based on case law vs current circumstances at hand

o General umbrella term vs fact specific details

The Reasonable Man Test

o This is an objective test…

o Measure of reasonableness = objective

o Obligation by DF = objective

Glasgow Corporation v Muir [1943]

DF owners of a teashop…two people carrying a teapot of hot water unfortunately scalded six children (PF)

HELDno negligence as SoC not breached…tearoom was run according to normal practice back in those days…no special requirement to protect the children

Per Lord Macmillian The degree of care for the safety of others which the law requires human beings to observe in the conduct of their affairs varies according to the circumstances. There is no absolute standard, but it may be said generally that the degree of care required varies directly with the risk involved. … The standard of foresight of the reasonable man is, in one sense, an impersonal test. It eliminates the personal equation and

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is independent of … idiosyncrasies ... [t]he reasonable man is presumed to be free both from over-apprehension and from over-confidence …

It is still left to the court to decide what, in the circumstances of the particular case, the reasonable man would have had in contemplation, and what, accordingly, the party sought to be made liable ought to have foreseen…

Thus, difficulty in application of the test since each judge has their own opinionlevel of objectiveness varies depending on various judges…opinion of the judges also dependent on contemporary expectations…

Blyth v Birmingham Waterworks [1856]

DF laid a water main and there was a ‘fire plug’ in the main…

Severe frost 1 month ago caused the plug to be dislodged and water seeped into the PF house

HELDreasonable person would have acted with reference to the average temperature of the years…state of extreme circumstances where no reasonable person could avoid

Elements of the Reasonable Man Test

o Objective

Judged not on that of the subjective skill, competence or mind of the DF but that of the most excellent and odious character, the Reasonable Man” (AP Herbert, “Uncommon Law”)

Critique: Not every person can maintain or sustain that level of character due to life’s lemons (tiredness, bored, distractions, illness)

Objective view but not absolutefluctuates on the factual matrix at hand and social mores of the day per Chandran

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o Reasonable

Hall v Brooklands Auto Racing Club [1933] 1 KB 205 at 244

The person concerned [ie The Reasonable Man] is sometimes described as "the man in the street," or "the man on the Clapham omnibus,” or [as in the US] “ the man who takes the magazines at home, and in the evening pushes the lawn mower in his shirt sleeves" [ Singapore uncle???]

Not expected to guard against every eventuality…abstain from intentionally injuring others but not liable for every act…subject to

o Circumstances

Commonsense application…treats circumstances as a “ruler” to gauge the level of reasonableness in the factual situation at hand.

o Foreseeability

Question to ask is whether harm can be foreseen at the relevant time…

Often overlaps with DoC and remoteness issues…

Hindsight thus not applicable

Roe v Minister of Health [1954]

PFs given anesthetic for minor operations but the anesthetic was contaminated during storage, resulting in paralysis

At that time not known that anesthetic could be contaminated in that way where contaminate seeped in through minute cracks in the test tubes

HELDSoC not breached…at that point in time SOP was to store them that way and there was no knowledge of contamination standard…NO SUCH STANDARD OF CARE IN THE 1st PLACE

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Relevant factors to consider in the measure of reasonableness…

o Likelihood or probability of risk happening

Bolton v Stone [1951] PC

RES injured by cricket ball while standing on the road outside her house

Ball flew from a cricket match adjacent to the road

There was a 7 foot fence surrounding the court

Balls rarely hit outside the court

HELD APP not liable for the harm…there is a DoC to prevent balls flying out…SoC not breached as probability of risk was so low that a reasonable person will have disregarded the risk…6 balls out of court in 28 years (mathematical probability and degree of risk)

Miller v Jackson [1977]

PF claimed negligence for cricket balls flying over to their house…DF was a cricket club…initially lots of balls but in 1976 a higher fence was erected and reduced to nine over 2 year period

HELD DF liable for negligence and nuisance…probability of balls flying over much more than in Bolton…however injunction for stoppage of cricket not granted due to equity ( cricket club there 1st)

Hudson v Ridge Manufacturing [1957]

PF was injured by the prank of fellow employee…DF employer knew about this and continued to hire him despite this knowledge…failed his habitual conduct

HELDDF breached the SoC of the duty to protect the wellbeing of employees…employer knew or ought to have reasonably knew of such behavior as shown by the several warnings given

o Gravity or seriousness of harm v probability

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The Wagon Mound (No 2) [1967] 1 AC 617 PC

DF caused an oil spill in the Sydney harbour… welding operations nearby caused a massive fire which damaged PF ship

HELDit was foreseeable that in the shoes of a reasonable dockside manager a fire will eventuate…magnitude of damage was too high in comparison to the effort taken to prevent the damage…

Paris v Stepney Borough Council [1951]

PF an employee of DF…had a blind eye which DF knew…during work he injured the other eye

Not standard practice to issue goggles in this field of work…

HELDrisk of loss of sight significantly more severe compared to others since he had only 1 eye…PF was of a special class of persons compared to the other workers due to circumstances

NOTEknowledge of particular circumstances of the is the turning point of the case similar to Miller v Jackson

BNJ v SMRT Trains Ltd and LTA [2014] SGHC 286

PF is a 14 year old girl who fell into the MRT tracks in AMK…injury resulted in amputation of both legs…sued SMRT and LTA

HELDSoC not breached…DF not required to eliminate ALL risk but to take reasonable precautions to reduce risks to a reasonable level…yellow lines conform to international standards…speed of train vs infinitesimal risk of anyone falling into train track = reasonable…balancing of probability, seriousness of harm and the practicality of prevention

o Practicality of prevention of risk (is it worth it?)

The Wagon Mound (No 2) [1967] 1 AC 617 PC

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DF caused an oil spill in the Sydney harbour… welding operations nearby caused a massive fire which damaged PF ship

HELDit was foreseeable that in the shoes of a reasonable dockside manager a fire will eventuate…magnitude of damage was too high in comparison to the effort taken to prevent the damage…

Haley v London Electricity Board [1965] AC 778

DF had workers digging a trench in the pavement…did not keep tools and PF who was blind tripped and fell…caused deafness

HELD it was reasonable that a blind person will walk down the street and thus appropriate protection…cost of precaution much lower compared to the risk of injury

NOTE fairness to the PF already debilitating disability? How would one know the magnitude of damage prior to accident??? Judgment most likely because of protection of people of disabilities…

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o Justification of taking the risk (balancing of risks)

Watt v Hertfordshire CC [1954] 1 WLR 835

Woman was trapped under a lorry and a fire truck by DF transported a huge jack to help

Lorry not supposed to transport the jack…fell on PF who was in the back of the truck

HELD Must balance the risk against the end to be achieved …saving 1 life vs risk involved per Lord Denning

Latimer v AEC [1952]

DF factory was flooded and floor became very oily…sawdust put to absorb oil but PF, being unaware, slipped and fell due to the surface

HELDDF not liable…was reasonable in allowing factory to continue operations…balancing the risk and measures to remove it, it is more unfair to the factory if it is to shut down vs 1 persons harm per Lord Denning…similar to Watt 1 persons injury vs economical loss of factory

o Time for the assessment of risk

Roe v Ministry of Healthhindsight

o Special Characteristic of the PF

Paris v Stepney Borough Councilalready had pre-existing condition

Particular Considerations

o Commonsense and self-protection from the PF

Qualcast (Wolverhampton) v Haynes [1959]

PF, an experienced worker, injured during work…was not wearing protective spats given by DF

HELD DF not liable…because PF was an idiot

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James v Hepworth & Grandage [1968]

PF was illiterate…cannot read warning signs…injured while working for DF

HELDDF not liable…DF did not know he cannot read and not expected to know he was since illiteracy was extremely rare…

NOTEcompare Paris

Chandran v Dockers Marine [2010] 1 SLR 768 SGCA

PF worked for DF in the stevedoring/ship business…DF failed to provide safety belt and harnesses and risk assessment

HELD DF breached the SoC… employers must take all reasonable steps to prevent risk of falling and consequential injuries that follow…extent of duty to protect the employees well-being not fixed but need to conform to prevailing needs and contemporary values of society…matter of common sense

NOTEoverarching duty to protect employees

o Emergencies

Carmarthenshire CC v Lewis [1955] HoL

4 year old child wandered off while teacher employed by APP was attending to the injuries of another student…lorry swerved to avoid the boy and killed the driver RES

HELD APP not responsible…teacher acted reasonably due to difficulty in making correct actions during emergencies…

Wilsher v Essex Area Health Authority [1987] CA

per Lord Mustill at 749…An emergency may overburden the available resources, and, if an individual is forced by circumstances to do too many things at once, the fact that he does one of them incorrectly should not lightly be taken as negligence.

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o Sports

Wooldridge v Sumner [1963]

PF was a photographer at a horse show…not within the spectator stands due to nature of work…DF horse crashed into PF

HELD per Lord Diplock…PF accepted the risk involved in the horse race evidenced by his acceptance of work…damage by DF not cause recklessly or deliberately but due to error in judgement

NOTEsports man only breach the duty if they show reckless disregard

Penal Code section 87Act not intended and not known to be likely to cause death or grievous hurt, done by consent

o Inexperience ( PUBLIC POLICY CONSIDERATIONS)

General Rule inexperience is NOT AN EXCUSE…potential harm to others overrides unfairness to PF…

Nettleship v Weston [1971]

Pf was teaching Df how to drive

3rd occasion, accident occurred and struck a lamp..PF injured and sue DF

HELDall drivers held to the same SoC as normal drivers…inexperience is in the domain of mitigation…

NOTEJudgment seems to be centered on PP and on balancing risks since PF was insured…UK court rejected the subjective element of knowledge and experience (that DF knows PF is a learner and thus accepts risk)…difficult to access and gauge…

Imbree v McNeily [2008] HIGH COURT OF AUSTRIALIA

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PF was injured in a motor accident…PF was supervising DF who just had his licence…injuries was severe

HELDSame as Nettleship…overturned the Cook v Cook which adopted the inexperience is an excuse as PF knew of DF lousy driving…?

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Ng Keng Yong v PP [2004] SGHC 171

RES was a trainee officer in charge of the ship during night time…error in navigation resulted in collision the loss of lives of the ship

HELDapplied Nettleship…matter of policy since potential harm to public severe

NOTE3rd parties have no choice in the matter but the DF usually has

Mansfield v Weetabix Ltd [1998]

DF Lorry driver did not know he suffered from malignant insulinoma…drove while having an episode and crashed into PF shop…

HELDSoC not breached…SoC not absolute as it is totally no fault of his…unaware of his condition

NOTEthis is incompetence due to conditions and not incompetence for incompetence sake…highly improbable to be implemented in SG Hui An li

o Age

General rulereasonable standard of a child’s behavior judged by children of the similar age group

Mullins v Richards [1998]

PF and DF were fighting an flicking rulers at each other…DF injured PF in the process…both were 15 year old girls

HELD DF not liable…judged according to the reasonable girl of 15 years of age instead of a reasonable man

McHale v Watson [1966] AUS HC

DF and PF were playing tag…DF being a naughty boy tossed a piece of metal rod at a wooden plank, bounced off and injured PF

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HELDSimilar to Mullins…SoC to be at the level of a reasonable 12 year old boy

Basis for special leeway children being children do not fully understand the gravity of the consequence of their actions…no choice in being young (but a reasonable person also has no choice at being inexperienced in the 1st job one does!!!)

o Professionals

General rule SoC at the level of reasonable man of the same industry/field…what the others of the same field would have done…for MED it’s a binding principle for others not yet

Philips v William Whiteley [1938]

PF asked DF to pierce his ears…DF refered PF to a jeweler who proceeded but ear became infected

HELD SoC not breached as jeweler not expected to be same SoC of a surgeon doing a surgery…fails causation test of but for also

Wells v Cooper [1958]

DF fixed a door knob by himself…PF injured himself when he used the door too strongly…DF should have used longer screws

HELD DF not liable… SoC to an amateur DIY carpenter and not to a professional one…not judged to the contractual obligations of a skilled carpenter working for $$$...

Shakoor v Situ [2000]

PF went for TCM treatment given by DF…died after course of treatment

HELD SoC to be the reasonable level to that of a reasonable TCM practitioner and not orthodox medical practitioner…must however be abreast with current

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information of orthodox medical journals (i.e. if west say poisonous and u apply, DF will be liable)

Ang Tiong Seng v Goh Huan Chir [1970]

HELD though TCM standard is to be the level of prevailing TCM practitioners…however there must be a minimum level of competence…in line with Shakoor of being in line with orthodox medical practices

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o Medical Practitioners

Bolam v Friern Hospital Management Committee [1957] 1 WLR 583 HoL

PF was undergoing electro therapy treatment for his mental illness (relatively new)…DF not given relaxants and later had a violent outburst during the procedure that resulted in a serious fracture…

Divided opinion on the use of drugs by doctors…risk of death vs risk of fracture, both small…

HELD not guilty and formulated the Bolam Test…a medical professional 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."

Context of 1) Duty to inform of risks and 2) duty of treatment and diagnosis…1) in flux 2) always adopted

CRITICISMS Overly doctor friendly since in it is almost always possible to find a contrary view...Court trying to push away responsibility of adjudication as formulation=no preference of court to choose either dividing opinion…

Rejected in Rogers v Whitaker (1992) in Aus, Reibl v Hughes in Canada and Foo Fio Na v Soo Fook Mun [2007] in M’sia

Sidaway v Bethlem Royal Hospital Governors [1985] HoL

PF suffered from pain in upper torso…DF doctor took her consent and did a procedure that resulted in her paralysis…1% risk here is always present

HELD court applied BOLAM TEST for 1) and 2)…no need to tell her of the remote side effects…Lord Scarman

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dissenting said doctor must tell risk since it affects autonomy of the PF own life…

R v Pretice, R v Sullman [1994]

DF doctors were carrying out injections on a youth…negligence in injection resulted in death

HELD

Bolitho v City & Hackney Health Authority [1997] 

PF son was having breathing difficulties…DF did not attend to PF as DF’s bleep not working…DF claimed that even if she attended, she would not have intubated PF which may have saved the PF life…2nd doctor said same thing

HELD DF not liable…applied Bolam and refined it by including the means to assess whether the others would have done the same by the DF, it has to be based on 1) LOGIC and 2) DEFENSIBLE…here passed 1) and 2)

Khoo James & Anor v Gunapathy Muniandy [2002] SGCA

HELDadopted and applied Bolam and Bolitho… [58] Bolam reigns supreme to confer near-immunity to the medical profession from actions in negligence. In the rare case, though, liability c[an] still be established… [144] recognition that judicial wisdom has its limits. A judge, unschooled and unskilled in the art of medicine, has no business adjudicating matters over which medical experts themselves cannot come to agreement…Furthermore, the lawyer-judge in ‘playing doctor’ at the frontiers of medical science might distort or even hamper its proper development.”

NOTEbut a judge is also unskilled and unschooled in other disciplines lol…

Surender Singh s/o Jagdish Singh v Li Man Kay [2009] SGHC

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PF died after a surgery…clips inside him dislodged...DF1 doctor did the operation and DF2 hospital failed to monitor the patient satisfactorily…

HELD DF1 not liable…DF2 liable under causation

JU v See Tho Kai Yin [2005] SGHC

HELDDF doctor not liable for negligence…failure to inform mother of risk of Down Syndrome clashes…court also reluctant to impose duty here due to moral issues of wrongful life

o Other Professionals

JSI Shipping v Teofoongwonglcloong [2007] (CA)

Case involving auditors and their clients…negligence in auditing accounts

HELDBolam is to be applied to other professional occupations… standard of an ordinary competent exponent of his profession along with1)logic and 2) defensible add-ons of Bolitho…however more responsibility is to be taken by the court as compared to Gunapathy in [51]…non-delegable adjudicatory mandate to assess the appropriate standard of care

NOTEStandard practice or industry standards DOES NOT automatically mean the practice is legally correct (SoC reached)

Edward Wong Finance Co Ltd v Johnson, Stokes and Master [1984] AC…PC from HK

DF conducted a mortgage transaction in a differing style from the traditional English-styled…norm in HK…result is a solicitor absconded without providing documents…DF argued that that was in accordance with a body of professional opinion and widely used in HK. 

HELDDF liable in negligence…obvious risk which negligence could have been guarded against…failed 1)

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logic test of Bolitho…unjustly lax practice…also held that seldom a judge will say a doctor is unreasonable

Is it because the judges in UK prefer their style instead of HK??? Favoritism involved???

o Differing SOPs

Sato Kogyo v Socomec [2012] SGHC

DF caused a fire in their factory operations…some of the equipment were tested less than stringent but still satisfied industrial standards…

HELD in the absence of a single clear industry standard, and given that DF itself prescribed two kinds of test…DF was obliged to meet the higher of the two standards, which it had not done with respect to some of the equipment …DF thus liable in breach of the SoC

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Res Ipsa Loquitur

PF always has the burden of proof to prove DF breached his duty or failed to meet the SoC

If PF cannot do so because there is no direct evidence, it does not automatically mean DF is not liable

PF can plead Res Ipsa Loquitur thing speaks for itself…then PF has a prima facie case and burden of proof shifts to DF to deny the breach

Three conditions to satisfy

o Reasonable evidence of negligence as the cause

o DF is in sole control of the situation

o The thing that happened to the PF would not in the ordinary course of things happen unless for negligence

o Cause of accident unknown

Cases

o Scott v The London and St Katherine Dock Co [1861-73]

o HELD sacks of sugar do not fall out of warehouses and crush passers-by without somebody having been negligent along the way...3 guidelines from this case

o Qualcast v Haynes [1959]

o PF worked for DF…DF provided safety boots for workers but did not enforced it…no evidence of industrial practice

o HELDDF not liable as risk was obvious, injury unlikely to be serious and PF was experienced…precedents are of value only in terms of the general principles which they establish…each factual matrix is different so a same result cannot be guaranteed with absolute certainty…does not mean an employer is always at fault for not making sure the PF never wear since it’s a question of fact…

o Tan Siok Yee v Ching Voon Kee Ivan[2005]

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o DF reversed into PF while parking…PF claimed Res Ipsa Loquitar that something the DF did caused the PF state…

o HELD per [49] Res ipsa loquitar is only applicable where the facts proved are more consistent with negligence on the part of the defendant than with other causes…must1st prove negligence…doctrine only applicable for negligence…

o

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Bolton v StoneParties Pf: Miss Stone, injured by cricket ball

Df:Court Privy CouncilFacts Miss Stone was injured by a cricket ball while

standing on the road outside her house Ball flew from a cricket match adjacent to the road There was a 7 foot fence surrounding the court Balls rarely hit outside the court

Held Not liable in damagesIssues When is a SoC breached, the mere possibility the accident

may occur or depending on the probability?Important Points

[858]the ball flying outside was a possibility…extreme SoC cannot be imposed…must consider probability of act and the injury caused…[860]quantam of damages must always be a question of degree…not enough there is a possibility…would a reasonable man anticipate it…[860]there is a DoC to prevent balls from hitting people outside…SoC on the reasonable man..[861]therefore not enough for the plaintiff to say…foreseen the possibility of the ball might be hit out onto the road…go further and say as reasonable men, foreseen the possibility of such an occurrence happening[863] Standard of an ordinary careful man…does not take precaution to every single foreseeable risk…life would be impossible if he were to attempt to take precautions against every risk…against risks which are reasonably likely to happen…[864]chance of person ever being struck…very small…if injury to another person from the Df acts is reasonably foreseeable the chance that injury will result is substantial and it does not matter in which way the duty is stated…[867]take into account not only how remote is the chance that a person might be struck but also how serious the consequences are likely to be[869] unless there has been something which a reasonable man would blame as falling beneath the SoC…abandon the use of ground for cricket or increase the height of the fences…

Evaluation of case

Foreseeability vs chance?Injury vs act?Just mere foreseeability of the act is not enough it must also follow that the foreseeability is of reasonable likelihood and that the injury must be sufficient.

Nettleship v WestonParties Pf: experienced driver teaching Df

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Df: learner driverCourt UK CoAFacts Pf was teaching Df how to drive

Pf went ahead after the car was insured against risk of injury to a passenger

3rd occasion, accident occurred and struck a lamp standard Pf sued Df for negligence

Held Cannot rely on volenti non fir injuria as the Pf did not consent to running the risk of injury

SoC of a learner driver = Experienced driverIssuesImportant Points

[698G]: such a plea only can go to mitigation of sentence[699F]: eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question…learner driver may be doing his best but his best is not good enough…[699H]: high standard…policy of the RTA…injured person is only able to recover if the driver is liable in law[700A]: moving away from no liability without fault and to on whom should the risk fall…morally the learner driver is not at fault but legally is because she is insured and the risk should fall on her[700C]: passenger in the car…own DoC…what is the SoC…same standard as those towards outside…but passenger knows the driver’s inadequacies and accepts a lift…no breach…knowingly accepts the voluntary services of a driver affected by drink…[700G]: I cannot agree…if the driver were to be excused according to the knowledge of the passenger…result in endless confusion and injustice…knowledge may go to show he was guilty of contributory negligence…does not take away DoC nor diminish SoC…[702C]: but the instructor who is just a friend helping to teach never does insure himself. He shoud, therefore, be allowed to sue[708H]: legal process could…accessing or applying to the facts of a particular case such varying standards…not merely of a particular person’s actual skill or experience but also of another person’s knowledge or assessment of that skill or experience at that particular moment of time.[710A]: in many cases ceased to be based on moral blameworthiness…[710F]: mere fact that the passenger knows of the driver’s inexperience is not enough…special facts and circumstances

Evaluation of Judgment seems to be centred on PP and on balancing

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case risksUK court rejected the subjective element of knowledge and experience because it is difficult to access and gauge.Denningbreach and contributory negligenceMaggoreagreed with ratio, not contributory negligenceSimmondisagreed in ratio, but contributory negligence

Bolam v Friern Hospital Management CommitteePartiesCourt Queens Bench/juryFactsHeld Df not liable for negligence.IssuesImportant Points

[586]: the test is the standard of the ordinary skilled man exercising and professing to have the special skill…need not possess the highest expert skill…ordinary skill of an ordinary competent man exercising that particular art…[587]: 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 or knowledge than others would have shown. The true test for 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 if acting with ordinary care”[587]: there may be one or more of these standards…as long as he conforms with one of those he is not negligent…a man is not negligence if he was acting in accordance with such a practice merely because there is a body of opinion who take a contrary view…[588]: must not look with 1957 spectacles at what happened in 1954…[588]: three points…question of warning…should relaxants be used…if not should manual support be used?[588]: Does good medical practice requires a warning to be given and…if a warning has been made what difference would that make?[594]: suffered terrible consequence natural feeling should be compensation…but doing a disservice…imposing a liability onto hospitals and doctors for everything that happens to go wrong…insist due care but not condemn a misadventure as negligence…

Evaluation of case

Sympathetic nature to SoC to doctors…Extremly hard for Pf to claim for medical negligence…dependent on the self-regulatory systems of the profession itself

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Problems of various schools of thoughts in medical practice…taking in mind that the field of medicine is ever moving forwards…

Khoo James and another v Gunapathy d/o Muniandy and another appeal [2002] SGCA 25Parties Appellant: Doctors

Respondant: Mrs Gunapathy, patientCourt SGCAFacts Gunapathy was to find that she was afflicted with a

brain tumour she had a tumour in the left lateral ventricle of her

brain. This growth led to the blockage and build-up of

cerebrospinal fluid, a condition known as “obstructive hydrocephalus”.

DrKhoo, who on 15November 1995, performed a craniotomy, or open brain surgery, on her.

Gunapathy was referred to DrKhor for post-operative radiotherapy treatment.

The scan revealed a lesion… it may have represented scar tissue from the previous surgery, as opposed to a possible tumour.

DrTan explained in court that this time she thought it was more likely a scar than a tumour.

DrKhoo, however, took a different view… likely to be a remnant tumour

Gunapathy consulted with DrKhoo, followed by DrKhor. At this last session, both claimed that they advised her on the advantages and disadvantages of radiosurgery as well as its attendant risks.

In totality, she had thus seen four consultants over six occasions in the period from 14January to 27January 1997.

The radiosurgery, however, led to very serious side-effects.

she also required permanent care for the rest of her life.

HeldIssuesImportant Points

[3]: We state at the outset that this court would politely decline the invitations of both counsel to enter the fray that is the arena of divided medical opinion…the legal principle in Bolam v Friern Hospital Management Committee [1957] 1WLR 582; [1957] 2All ER 118 restrains

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the Judiciary from treating medical experts as they would any other.[35]: It is pertinent to note that radiosurgery was in 1997 a relatively new treatment in Singapore.[39]: It was therefore evident that in 1997 the treatment of neurocytomas by radiosurgery was largely uncharted territory. This would form the basis of the plaintiff’s allegation that the doctors had been negligent by treating her with radiosurgery, and by applying too high a dosage during the treatment.[58]: As a result, Bolam reigned supreme to confer near-immunity to the medical profession from actions in negligence.[59]: Bolitho v City and Hackney Health Authority [1998] AC232; [1997] 4All ER 771… the court was not bound to find for a defendant doctor simply because a body of experts testified in his favour. To qualify as a responsible body of opinion, such testimony must have a logical basis… comparative risks and benefits and have reached a “defensible conclusion” on the matter[61]: Yeo Peng Hock Henry v Pai Lily [2001] 3 SLR(R) 555…House of Lords held that while assessment of medical risks was for medical experts to make, a judge could, in a rare case, disregard a body of opinion as not reasonable or responsible where it could not be logically supported…[63]: In our view, Bolitho presented a timely addendum to the Bolam test. It gave voice to a commonsense understanding which was hitherto unexpressed – that the Bolam test did not represent immunity from judicial inquiry over the medical process… An expert view, in order to qualify as representative of a “responsible” body of medical opinion, had to satisfy the threshold test of logic.[64]: The first inquiry, according to the learned law lord, is whether the expert directed his mind at all to the comparative risks and benefits relating to the matter[65]: The second stage of inquiry relates to whether the medical expert had arrived at a “defensible conclusion” as a result of the balancing process…[69]: Hence, the willingness of the court to adjudicate over differing opinions in other professions should not be transposed to the medical context.[73]: to consider whether the views of the medical experts were logical, not whether one was superior to the other.[93]: the diagnosis of a tumour of the brain was a difficult and imprecise science… First, did the defence experts address the relevant countervailing factors in coming to

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their conclusion? Second, was the conclusion of the experts “defensible”, in the sense that it was internally consistent, and did not controvert known external facts?[131]: Furthermore, it must be borne in mind that Gunapathy was an educated person, with the presence of mind to seek confirmation by obtaining a second opinion. She had also been suffering under the spectre of brain cancer for more than a year. It seemed most unlikely that she would have allowed herself to be brushed aside with half-baked advice that radiosurgery was “simple” without more. In the totality of evidence, we accepted the account given by the doctors that they had properly informed her of the risks inherent in radiosurgery.[141]: if a risk was substantial and there was no cogent clinical reason why disclosure should not be made, the judge was at liberty to conclude that no respectable medical expert would have failed to make it.[144]: A judge, unschooled and unskilled in the art of medicine, has no business adjudicating matters over which medical experts themselves cannot come to agreement. This is especially where, as in this case, the medical dispute is complex and resolvable only by long-term research and empirical observation.

Evaluation of case

Bolitho exception to BolamLogic test, defensible (scientific facts, not contridictary etc. then bolam.How could medical evidence be based on LOGIC when its premise and foundation is based on not logic but medical science?X-knife procedure relatively newso how to ascertain responsible body of experts.

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