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

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”.

Court: HL
Date: 24-Jul-1997
Judges: Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Nolan, Lord Hoffmann, Lord Clyde
Links: Gazette, Times, House of Lords, Bailii,
References: [1997] UKHL 46, [1998] AC 232, [1997] 4 All ER 771, [1997] 3 WLR 1151
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