Bolitho -v- City and Hackney Health Authority; HL 24 Jul 1997

References: Gazette 10-Dec-1997, Times 27-Nov-1997, [1997] UKHL 46, [1998] AC 232, [1997] 4 All ER 771, [1997] 3 WLR 1151
Links: House of Lords, Bailii
Coram: Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Nolan, Lord Hoffmann, Lord Clyde
The plaintiff suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure as a child whilst at the defendant hospital. A doctor was summoned but failed to attend, and the child suffered cardiac arrest and brain damage.
Held: In cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant’s conduct, the defendant can properly be held liable for negligence.
What other professionals do is persuasive evidence as to what is acceptable, but a consistent body of expert medical opinion may still be ignored by the judge, if he can be sure that no logical basis for the opinion has been shown to the court: ‘a plaintiff can discharge the burden of proof on causation by satisfying the court either that the relevant person would in fact have taken the requisite action (although she would not have been at fault if she had not) or that the proper discharge of the relevant person’s duty towards the plaintiff required that she take that action.’
Lord Browne-Wilkinson said: ‘it will very seldom be right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable. The assessment of medical risks and benefits is a matter of clinical judgment which a judge would not normally be able to make without expert evidence. As the quotation from Lord Scarman makes clear, it would be wrong to allow such an assessment to deteriorate into seeking to persuade the judge to prefer one of two views both of which are capable of being logically supported. It is only where a judge can be satisfied that the body of expert opinion cannot be logically supported at all that such opinion will not provide the bench mark by reference to which the defendant’s conduct falls to be assessed.’
. . And in all cases of causation: ‘the primary question is one of fact: did the wrongful act cause the injury? But in cases where the breach of duty consists of an omission to do an act which ought to be done (e.g. the failure of the doctor to attend) that factual enquiry is, by definition, in the realms of hypothesis. The question is what would have happened if an event which by definition did not occur had occurred’.
This case cites:

  • Cited – Bolam -v- Friern Hospital Management Committee QBD ([1957] 1 WLR 582, [1957] 2 All ER 118)
    Negligence was alleged against a doctor.
    Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
  • Cited – Joyce -v- Merton, Sutton and Wandsworth Health Authority CA ([1996] 7 Med L R 1)
    Hobhouse LJ said: ‘Thus, a plaintiff can discharge the burden of proof on causation by satisfying the court either that the relevant person would in fact have taken the requisite action (although she would not have been at fault if she had not) or . .
  • Cited – Wilsher -v- Essex Area Health Authority HL ([1988] AC 1074, [1988] 1 All ER 871, Bailii, [1987] UKHL 11)
    A premature baby suffered injury after mistaken treatment by a hospital doctor. He had inserted a monitor into the umbilical vein. The claimant suggested the treatment should have been by a more senior doctor. The hospital appealed a finding that it . .
  • Cited – Maynard -v- West Midlands Regional Health Authority HL ([1985] 1 WLR 685, [1985] 1 All ER 635)
    The test of professional negligence is the standard of the ordinary skilled man exercising and professing to have that special skill. Lord Scarman said: ‘a doctor who professes to exercise a special skill must exercise the ordinary skill must . .
  • Cited – Bonnington Castings Ltd -v- Wardlaw HL ([1956] 1 All ER 615 HL(Sc), [1956] 2 WLR 707, [1956] AC 613, 1956 SC (HL) 26, Bailii, [1956] UKHL 1)
    The injury of which the employee complained came from two sources, a pneumatic hammer, in respect of which the employers were not in breach of the relevant Regulations; and swing grinders, in respect of which they were in breach.
    Held: It had . .
  • Cited – Hucks -v- Cole CA ([1993] 4 Med LR 393)
    (Reported 1993) A doctor failed to treat with penicillin a patient, the plaintiff, in a maternity ward who was suffering from septic spots on her skin though he knew them to contain organisms capable of leading to puerperal fever. Several . .
  • Cited – Edward Wong Finance Co Ltd -v- Johnson Stokes & Master PC ((1983) 80 LSG 3163, [1984] 2 WLR 1, [1983-84] ANZ Conv R 640, [1984] AC 296, Bailii, [1983] UKPC 32)
    (Hong Kong) The defendant’s solicitors completed a mortgage in ‘Hong Kong style’ rather than in the old fashioned English style. Completion in Hong Kong style provides for money to be paid over against an undertaking by the solicitors for the . .

(This list may be incomplete)
This case is cited by:

  • Cited – Patel and Another -v- Daybells (a Firm) CA ([2001] EWCA Civ 1229, Bailii, [2002] PNLR 6)
    Land was purchased and a resale negotiated before it was registered. An undertaking was accepted that the seller’s solicitor would discharge all charges. The purchasers sought to avoid completion by saying the Act required them to be registered . .
  • Cited – Regina (N) -v- Dr M and Others CA (Times 12-Dec-02, [2002] EWCA Civ 1789, [2003] 1 WLR 562, Bailii, [2003] Lloyd’s Rep Med 81, (2003) 72 BMLR 81, [2003] 1 FCR 124, [2003] 1 FLR 667, [2003] Fam Law 160)
    The patient refused consent to treatment in the form of injection of drugs, which her psychiatrists considered to be necessary.
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  • Cited – Calver -v- Westwood Veterinary Group CA (B2/2000/0108)
    The defendants appealed a finding of professional negligence in their handing of a case in which a mare had miscarried. It was claimed that he had failed to spot a retained placenta. The laminitis she then suffered (found caused by negligence) led . .
  • Cited – Wisniewski (a Minor) -v- Central Manchester Health Authority CA (Bailii, [1998] EWCA Civ 596)
    . .
  • Cited – Izzard; Deborah Jean Izzard -v-Field Palmer (a Firm); Neville John Freeston; Ian Mckinnon Mead; Benjamin Norman Aubrey French and Ministry of Defence CA (Bailii, [1999] EWCA Civ 2045)
    The plaintiffs purchased their property after a valuation report to their lenders prepared by the respondent. The property was on an estate which proved to have serious faults of construction, and the design had proved at fault. The property could . .
  • Cited – AB and others -v- Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD ([2004] EWHC 644 (QB), Bailii, Times 12-Apr-04, (2004) 77 BMLR 145, [2004] 2 FLR 365, [2004] 3 FCR 324, [2004] Fam Law 501, [2005] 2 WLR 358, [2005] Lloyd’s Rep Med 1, [2005] QB 50)
    Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
  • Cited – Coudert Brothers -v- Normans Bay Limited (Formerly Illingworth, Morris Limited) CA (Bailii, [2004] EWCA Civ 215, Times 24-Mar-04, Gazette 01-Apr-04)
    The respondent had lost its investment in a Russian development, and the appellants challenged a finding that they had been negligent in their advice with regard to the offer documents.
    Held: As to the basis of calculation of damages as to a . .
  • Cited – Pearce and Pearce -v- United Bristol Healthcare NHS Trust CA (Bailii, [1998] EWCA Civ 865, [1999] PIQR P53)
    A doctor advised a mother to delay childbirth, but the child was then stillborn. She complained that he should have advised her of the risk of the baby being stillborn.
    Held: ‘In a case where it is being alleged that a plaintiff has been . .
  • Cited – Chester -v- Afshar HL ([2005] 1 AC 134, House of Lords, Bailii, [2004] UKHL 41, Times 19-Oct-04, [2004] 3 WLR 927, 67 BMLR 66)
    The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The . .
  • Cited – Penney and Others -v- East Kent Health Authority CA (Times 25-Nov-99, Gazette 08-Dec-99, [2000] PNLR 323, Bailii, [1999] EWCA Civ 3005)
    A cervical smear screener could be liable in negligence if he failed to spot obvious abnormalities in a test result which indicated that further investigation was required. To say this is not to say that such screening tests were expected to achieve . .
  • Cited – Gregg -v- Scott HL (Bailii, [2005] UKHL 2, House of Lords, Times 28-Jan-05, [2005] 2 AC 176, [2005] 2 WLR 268)
    The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
  • Cited – Sutcliffe -v- BMI Healthcare Ltd CA (Bailii, [2007] EWCA Civ 476)
    The claimant had undergone an operation, after which he slept with the assistance of self administered morphine. Whilst asleep, he vomited, but did not awake to expel it, and he uffered massive brain damage.
    Held: The judge had dealt properly . .
  • Cited – Pierce -v- Doncaster Metropolitan Borough Council QBD (Bailii, [2007] EWHC 2968 (QB), Times 27-Dec-07)
    The claimant sought damages, saying that the local authority had failed to protect him when he was a child against abuse by his parents.
    Held: The claimant had been known to the authority since he was a young child, and they owed him a duty of . .
  • Cited – Mezey -v- South West London and St George’s Mental Health NHS Trust QBD (Bailii, [2008] EWHC B9 (QB))
    The claimant psychiatrist allowed freedom within the insecure grounds of the hospital to a newly admitted but unexamined patient. He left and committed a homicide. She was suspended pending disciplinary proceedings by the Trust. An expert report . .
  • Cited – O’Donnell and Another -v- Imray and others SCS (Bailii, [2003] ScotCS 122, ScotC)
    The pursuer said that the defendants, her former solicitors, had been negligent when advising her. She was to claim for personal injury, but when the limitation period expired, they closed the file without advising her of the possibility of applying . .
  • Cited – Maguire -v- North West Strategic Health Authority QBD (Bailii, [2012] EWHC 3272 (QB))
    The claimant General Practitioner doctor had been found liable for professional negligence leading to very severe injury. He now sought a contribution from the Authority, saying that their similar mistake within a few days had similarly caused the . .
  • Cited – Robbins -v- London Borough of Bexley CA (Bailii, [2013] EWHC 1233 (Civ))
    The claimant said that his house had been damaged by tree roots for which the appellant was responsible. The trees were 33 metres from the house.
    Held: The appeal failed. The immediate cause of the damage was a failure to do something which . .
  • Cited – Beary -v- Pall Mall Investments (A Firm) CA (Bailii, [2005] EWCA Civ 415)
    The independent financial advisor defendant had negligently failed to advise the claimant client about the possibility of taking out an annuity. However, the claimant would not have done so, unless he had been positively advised that he should. The . .
  • Cited – Montgomery -v- Lanarkshire Health Board SC (Bailii, [2015] UKSC 11, Bailii Summary, UKSC 2013/0136, SC Summary, SC)
    The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inabillity of the shoulders to pass through the pelvis. The consultant considered that a . .

(This list may be incomplete)
Last Update: 28-Oct-15 Ref: 135010

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