Law of Torts
Professional Negligence and Ordinary Negligence: The Reasonable Man and the Reasonably Competent Practitioner
The standard in negligence is always that of the reasonable person in the defendant's position, and professional negligence is not an exception to that rule but an application of it. Where a person professes a special skill, the reasonable person in his position is a reasonably competent member of that calling, and the consequences follow at once: the content of the standard is supplied by the profession rather than by common experience, expert evidence becomes necessary to establish it, and the practice of other practitioners, which is of little weight in an ordinary case, becomes close to decisive.
1. The Comparison
Ordinary negligence | Professional negligence | |
The standard | The reasonable man | The ordinary skill of an ordinary competent man exercising that particular art |
Who supplies its content | The court, applying common experience | The profession, subject to the court's scrutiny |
Special skill | None is assumed | Assumed by the holding out, whatever his actual experience |
Expert evidence | Ordinarily unnecessary | Ordinarily necessary, and often decisive |
The practice of others | Of some evidential weight | Close to decisive if a responsible body accepts it |
Inexperience | No excuse | No excuse. The post sets the standard, not the holder |
The highest skill | Not required | Not required. The standard is the ordinary competent practitioner, not the leading exponent |
An error of judgment | The same enquiry as any other lapse | Not negligent unless no competent practitioner would have made it |
Differences of opinion | Rarely arise | Common, and a practitioner who follows one accepted school is not negligent because another exists |
2. The Rule in Bolam
📖 Bolam v. Friern Hospital Management Committee, [1957] 1 WLR 582 Facts The plaintiff underwent electro convulsive therapy without relaxant drugs and without manual restraint, and sustained fractures. Medical opinion was divided both on the use of relaxants and on the practice of restraint, and on whether the risks should have been explained to him. Held The defendants were not negligent. Ratio Where a person professes to have a special skill the test is the standard of the ordinary skilled man exercising and professing to have that special skill. He need not possess the highest expert skill; it is sufficient that he exercises the ordinary skill of an ordinary competent man exercising that particular art. A doctor is not negligent if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, and he is not negligent merely because there is a body of opinion that would take a contrary view. |
3. The Qualification in Bolitho
📖 Bolitho v. City and Hackney Health Authority, [1998] AC 232 Facts A young child suffering respiratory difficulty was not attended by a doctor despite repeated calls, suffered cardiac arrest and severe brain damage. The doctor said that had she attended she would not have intubated, and a body of expert opinion supported that decision. Held The claim failed on causation, but the House of Lords stated an important qualification to Bolam. Ratio The court is not bound to hold that a defendant escapes liability merely because he leads evidence from a number of experts genuinely of opinion that his conduct accorded with sound practice. The body of opinion relied on must be responsible, reasonable and respectable, and the court must be satisfied that in forming it the experts have directed their minds to the comparative risks and benefits and have reached a defensible conclusion. Where a professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that it cannot provide the benchmark of reasonable care. Such cases will, however, be rare. |
4. The Position in India
- India applies Bolam, as qualified. Jacob Mathew v. State of Punjab, (2005) 6 SCC 1 adopts the test in terms and applies it both to civil and, with a much higher threshold of degree, to criminal liability.
- Kusum Sharma v. Batra Hospital and Medical Research Centre, (2010) 3 SCC 1 collects the principles: a professional may be held liable for negligence where he did not possess the requisite skill which he professed, or where he did not exercise with reasonable competence the skill he did possess; the standard is that of an ordinary competent person exercising ordinary skill in that profession; and it is not necessary for every professional to possess the highest level of expertise.
- A professional is not liable merely because a better alternative existed, nor because a more skilful practitioner would have achieved a better result.
- Bolam governs the extent of disclosure required for consent in India. Samira Kohli v. Dr. Prabha Manchanda, decided 16 January 2008, holds that the nature and extent of the information to be given should continue to be governed by the Bolam test rather than by the reasonably prudent patient test applied in Canterbury v. Spence, and that consent given for a diagnostic procedure is not consent for therapeutic treatment.
- Medical services fall within the Consumer Protection Act, following Indian Medical Association v. V.P. Shantha, (1995) 6 SCC 651, except where the service is rendered free of charge to everybody: TORT 098.
- Expert evidence is not invariably required. V. Kishan Rao v. Nikhil Super Speciality Hospital, decided 8 March 2010, holds that each case must be judged on its own facts, that a rule requiring expert evidence in every case would make the consumer remedy illusory, and that the contrary direction in Martin F. D'Souza v. Mohd. Ishfaq was per incuriam.
5. Which Callings Are Covered
- Medicine and surgery, in every branch, together with nursing, anaesthesia, pathology, radiology and pharmacy.
- The law: advocates, and solicitors and advisers in the conduct of non litigious business.
- Accountancy and audit, where the liability to third parties is confined by the rules on negligent misstatement and pure economic loss: TORT 075.
- Architecture, engineering and surveying, where the professional answers for the design as well as for the supervision.
- Banking and financial advice, and insurance broking.
- Any calling requiring special skill and held out as such, the test being the holding out and not the existence of a formal qualification, so that a person who undertakes work requiring a skill he does not possess is judged by the standard of one who does.
6. Why the Profession Sets the Standard, and Why the Court Retains a Veto
- The court cannot supply the content of a professional standard from common experience. A judge has no view of his own about the correct management of an obstructed airway, and the only source of a standard is the body of practitioners who do.
- Requiring a professional to be right rather than competent would be unworkable. Medicine, law and engineering all involve judgment under uncertainty, and a standard of correctness would convert every unfavourable outcome into a breach.
- And professional practice represents accumulated experience, so a practice that a responsible body accepts is prima facie a reasonable way of proceeding.
- But a profession cannot be the final judge of its own obligations, or the law would be abdicating to the group whose conduct is in question, and a widespread but indefensible practice would be self validating.
- Bolitho supplies the answer: the court accepts the profession's standard where the opinion supporting it is responsible, reasonable and respectable, has weighed the risks and benefits, and can withstand logical analysis, and reserves to itself the power to reject it where it cannot.
⚠ Why Bolam is criticised, and what the criticism is really about The standing objection to Bolam is that it lets a profession set the standard by which it is judged, so that a defendant needs only to find a sufficient number of colleagues willing to say they would have done the same. The objection is overstated in one direction and understated in another. It is overstated because Bolitho supplies a real control and because the body of opinion must be shown to be responsible and to have weighed the competing considerations, which excludes both the eccentric and the merely customary. It is understated because the real difficulty with Bolam is not in its application to matters of clinical technique, where a court genuinely has nothing to contribute, but in its extension to matters that are not technical at all. Whether an operation should have been performed in a particular way is a question for the profession. Whether a patient should have been told that it carried a one per cent risk of paralysis is not: it is a question about her right to decide what is done to her body, on which the accumulated practice of surgeons carries no special authority. England has moved away from Bolam on that point; Samira Kohli keeps India with it, and that is where the argument in this jurisdiction now lies. |
7. The Position Stated Shortly
1. The standard is always that of the reasonable person in the defendant's position, and for a professional that person is a reasonably competent member of the calling.
2. Bolam holds that a professional is not negligent if he acted in accordance with a practice accepted as proper by a responsible body of skilled opinion.
3. He need not possess the highest expert skill, and he is not negligent merely because another body of opinion would have taken a different course.
4. Bolitho qualifies the rule: the opinion relied on must be responsible, reasonable and respectable, must have weighed the risks and benefits, and must withstand logical analysis.
5. Jacob Mathew and Kusum Sharma adopt Bolam in India, together with its qualification.
6. A professional is liable if he did not possess the skill he professed, or did not exercise with reasonable competence the skill he possessed.
7. Inexperience is no excuse, the standard attaching to the post and not to the holder.
8. Samira Kohli applies Bolam to the extent of disclosure required for consent, rather than the prudent patient test, and holds that consent to a diagnostic procedure is not consent to treatment.
9. V. Kishan Rao holds that expert evidence is not required in every case, and that the contrary direction in Martin D'Souza was per incuriam.
10. The profession supplies the content of the standard because the court cannot, and the court retains a veto because a profession cannot be the final judge of its own obligations.