Bolithio v Hackney HA [1997] 4 All ER 771
House of Lords
Facts
P had breathing difficulties. D was summoned but negligently did not arrive. Later, P had more severe
breathing difficulties and suffered brain damage, and then died. D claimed that she had not caused P’s
death as she would not have decided in intubate P even if she had come down, so the same result
would have occurred. D’s stance of not intubating was in accordance with a body of medical opinion.
Held Lord Browne Wilkinson
● Where the breach of duty consists of an omission to do an act which ought to be done (e.g.
the failure by a doctor to attend)
o the question is what would have happened if an event which by definition did not
occur had occurred?
▪ The Bolam test had no part to play in determining the first question, viz. what
would have happened?
o But Bolam is relevant in assessing whether what it is established would have
happened is a course which any competent doctor would have adopted.
▪ D can’t escape liability by saying that the damage would have occurred
anyway b/c he would have committed some other breach of duty thereafter
● Also, Bolam does not mean that D escapes liability just b/c medical opinion is that D has done
the right thing
o The use of these adjectives in the Bolam test - responsible, reasonable and
respectable
▪ all show that the court has to be satisfied that body of opinion relied upon can
demonstrate that it has a logical basis.
▪ The judge before accepting a body of opinion as being responsible, reasonable
or respectable,
● will need to be satisfied that the experts have directed their minds to
the question of comparative risks and benefits
o and have reached a defensible conclusion on the matter
o In the vast majority of cases the fact that distinguished experts in the field are of a
particular opinion will demonstrate the reasonableness of that opinion
▪ But if, in a rare case, it can be demonstrated that the professional opinion is
not capable of withstanding logical analysis,
● the judge is entitled to hold that the body of opinion is not reasonable
or responsible
● The judge must not do this lightly – he cannot find one opinion
unreasonable just because he finds the other opinion preferable.
, Burne v A [2006] EWCA Civ 24
Court of Appeal
Facts
A was born prematurely, and required a shunt to be fitted which constantly drained brain fluid. When
he was 6, he went home from school vomiting and complaining of a headache. His mum, M, called
the GP and described the symptoms. GP failed to ask pertinent questions, merely listened. A had a
blocked shunt and therefore suffered brain damage. C sued. The judge dismissed the opinions of the
experts that the GP was not obliged to enquire further and held the medical practice to be
unreasonable.
Held Sedley LJ
● Judges are required to try questions of medical negligence on the evidence, not on what they
themselves know or think they know.
o It would, for example, have been improper for Judge Harris simply to decide that Dr
Burne had been negligent whatever the experts said.
▪ But judges are there to exercise judgment, and their judgment cannot be
entirely dictated by expert evidence, even where the evidence is unopposed.
● The question always remains (provided a party raises it) whether the
expert evidence makes sense
o While the court cannot just prefer one medical opinion over another
▪ The court is not bound to hold that D escapes liability for negligent treatment
or diagnosis
● just because he leads evidence from a number of medical experts who
are genuinely of opinion that the defendant's treatment or diagnosis
accorded with sound medical practice
● The judge's approach to the issue was legally correct.
o The real problem is that he ought not to have embarked upon it, and that if he was to
do so it could only be after the defendant's expert witness (and quite possibly the
claimant's too)
▪ had had a proper opportunity to explain why medical practice, or at least one
respectable school within it, took this position
o If it was in the judge's mind that, failing this, he was not bound to follow the experts'
joint view if it did not make sense,
▪ he was required to put it to the parties and to act only on their considered
responses
Held Ward LJ
● Reading the judgment as a whole it seems to me to be apparent that if the judge had followed
the views given by the experts, then he would have acquitted the defendant of professional
negligence.
,o He baulked at this because he was much influenced by the fact that the boy had twice
been referred to the hospital because of complications in connection with the shunt
o Now I confess I have a great deal of sympathy with the judge in that view.
▪ I am not, however, convinced that we are entitled to rely on what seems
common sense to judges and consequently dismiss the views of the experts as
illogical.
● At least we should not do so unless the Bolitho point has been
properly taken in the court below and the experts given an
opportunity to explain and justify their practice
, Chaplin v Hicks [1911] 2 KB 786
Court of Appeal
Facts
D published a letter in a newspaper advertising for models. Ladies were invited to send in applications
containing their pictures. D with the assistance of a committee, would then print the pictures of ten
ladies in each district, whom readers would vote on, leaving a total of 50 whom D would then pick 12
models from. C was in the final 50, but D’s secretary negligently failed to inform her of the interview in
time, thus meaning C was not at the interview where the 12 were selected.
Held Vaughan Williams LJ
● The proposition is that, whenever the contingencies on which the result depends are
numerous and difficult to deal with,
o it is impossible to recover any damages for the loss of the chance or opportunity
of winning the prize.
o In the present case I understand that there were fifty selected competitors, of
whom the plaintiff was one, and twelve prizes, so that the average chance of
each competitor was about one in four.
▪ I do not agree with the contention that, if certainty is impossible of
attainment, the damages for a breach of contract are unassessable.
● In the case of a breach of a contract for the delivery of goods the damages are
usually supplied by the fact of there being a market in which similar goods can be
immediately bought,
o and the difference between the contract price and the price given for the
substituted goods in the open market is the measure of damages; that rule
has been always recognized.
▪ Sometimes, however, there is no market for the particular class of
goods; but no one has ever suggested that, because there is no
market, there are no damages.
o It is true that no market can be said to exist for C’s right. None of the fifty
competitors could have gone into the market and sold her right; her right
was a personal right and incapable of transfer.
▪ But a jury might well take the view that such a right, if it could have
been transferred, would have been of such a value that every one
would recognize that a good price could be obtained for it.
● The jury came to the conclusion that the taking away from
the plaintiff of the opportunity of competition, as one of a
body of fifty, when twelve prizes were to be distributed,
deprived the plaintiff of something which had a monetary
value.
Held Fletcher Moulton LJ
● Is expulsion from a limited class of competitors an injury? To my mind there can be
only one answer to that question; it is an injury and may be a very substantial one.
Therefore the plaintiff starts with an unchallengeable case of injury, and the damages
given in respect of it should be equivalent to the loss. But it is said that the damages
cannot be arrived at because it is impossible to estimate the quantum of the reasonable
probability of the plaintiff's being a prize-winner. I think that, where it is clear that
there has been actual loss resulting from the breach of contract, which it is difficult to
estimate in money, it is for the jury to do their best to estimate; it is not necessary that
there should be an absolute measure of damages in each case
House of Lords
Facts
P had breathing difficulties. D was summoned but negligently did not arrive. Later, P had more severe
breathing difficulties and suffered brain damage, and then died. D claimed that she had not caused P’s
death as she would not have decided in intubate P even if she had come down, so the same result
would have occurred. D’s stance of not intubating was in accordance with a body of medical opinion.
Held Lord Browne Wilkinson
● Where the breach of duty consists of an omission to do an act which ought to be done (e.g.
the failure by a doctor to attend)
o the question is what would have happened if an event which by definition did not
occur had occurred?
▪ The Bolam test had no part to play in determining the first question, viz. what
would have happened?
o But Bolam is relevant in assessing whether what it is established would have
happened is a course which any competent doctor would have adopted.
▪ D can’t escape liability by saying that the damage would have occurred
anyway b/c he would have committed some other breach of duty thereafter
● Also, Bolam does not mean that D escapes liability just b/c medical opinion is that D has done
the right thing
o The use of these adjectives in the Bolam test - responsible, reasonable and
respectable
▪ all show that the court has to be satisfied that body of opinion relied upon can
demonstrate that it has a logical basis.
▪ The judge before accepting a body of opinion as being responsible, reasonable
or respectable,
● will need to be satisfied that the experts have directed their minds to
the question of comparative risks and benefits
o and have reached a defensible conclusion on the matter
o In the vast majority of cases the fact that distinguished experts in the field are of a
particular opinion will demonstrate the reasonableness of that opinion
▪ But if, in a rare case, it can be demonstrated that the professional opinion is
not capable of withstanding logical analysis,
● the judge is entitled to hold that the body of opinion is not reasonable
or responsible
● The judge must not do this lightly – he cannot find one opinion
unreasonable just because he finds the other opinion preferable.
, Burne v A [2006] EWCA Civ 24
Court of Appeal
Facts
A was born prematurely, and required a shunt to be fitted which constantly drained brain fluid. When
he was 6, he went home from school vomiting and complaining of a headache. His mum, M, called
the GP and described the symptoms. GP failed to ask pertinent questions, merely listened. A had a
blocked shunt and therefore suffered brain damage. C sued. The judge dismissed the opinions of the
experts that the GP was not obliged to enquire further and held the medical practice to be
unreasonable.
Held Sedley LJ
● Judges are required to try questions of medical negligence on the evidence, not on what they
themselves know or think they know.
o It would, for example, have been improper for Judge Harris simply to decide that Dr
Burne had been negligent whatever the experts said.
▪ But judges are there to exercise judgment, and their judgment cannot be
entirely dictated by expert evidence, even where the evidence is unopposed.
● The question always remains (provided a party raises it) whether the
expert evidence makes sense
o While the court cannot just prefer one medical opinion over another
▪ The court is not bound to hold that D escapes liability for negligent treatment
or diagnosis
● just because he leads evidence from a number of medical experts who
are genuinely of opinion that the defendant's treatment or diagnosis
accorded with sound medical practice
● The judge's approach to the issue was legally correct.
o The real problem is that he ought not to have embarked upon it, and that if he was to
do so it could only be after the defendant's expert witness (and quite possibly the
claimant's too)
▪ had had a proper opportunity to explain why medical practice, or at least one
respectable school within it, took this position
o If it was in the judge's mind that, failing this, he was not bound to follow the experts'
joint view if it did not make sense,
▪ he was required to put it to the parties and to act only on their considered
responses
Held Ward LJ
● Reading the judgment as a whole it seems to me to be apparent that if the judge had followed
the views given by the experts, then he would have acquitted the defendant of professional
negligence.
,o He baulked at this because he was much influenced by the fact that the boy had twice
been referred to the hospital because of complications in connection with the shunt
o Now I confess I have a great deal of sympathy with the judge in that view.
▪ I am not, however, convinced that we are entitled to rely on what seems
common sense to judges and consequently dismiss the views of the experts as
illogical.
● At least we should not do so unless the Bolitho point has been
properly taken in the court below and the experts given an
opportunity to explain and justify their practice
, Chaplin v Hicks [1911] 2 KB 786
Court of Appeal
Facts
D published a letter in a newspaper advertising for models. Ladies were invited to send in applications
containing their pictures. D with the assistance of a committee, would then print the pictures of ten
ladies in each district, whom readers would vote on, leaving a total of 50 whom D would then pick 12
models from. C was in the final 50, but D’s secretary negligently failed to inform her of the interview in
time, thus meaning C was not at the interview where the 12 were selected.
Held Vaughan Williams LJ
● The proposition is that, whenever the contingencies on which the result depends are
numerous and difficult to deal with,
o it is impossible to recover any damages for the loss of the chance or opportunity
of winning the prize.
o In the present case I understand that there were fifty selected competitors, of
whom the plaintiff was one, and twelve prizes, so that the average chance of
each competitor was about one in four.
▪ I do not agree with the contention that, if certainty is impossible of
attainment, the damages for a breach of contract are unassessable.
● In the case of a breach of a contract for the delivery of goods the damages are
usually supplied by the fact of there being a market in which similar goods can be
immediately bought,
o and the difference between the contract price and the price given for the
substituted goods in the open market is the measure of damages; that rule
has been always recognized.
▪ Sometimes, however, there is no market for the particular class of
goods; but no one has ever suggested that, because there is no
market, there are no damages.
o It is true that no market can be said to exist for C’s right. None of the fifty
competitors could have gone into the market and sold her right; her right
was a personal right and incapable of transfer.
▪ But a jury might well take the view that such a right, if it could have
been transferred, would have been of such a value that every one
would recognize that a good price could be obtained for it.
● The jury came to the conclusion that the taking away from
the plaintiff of the opportunity of competition, as one of a
body of fifty, when twelve prizes were to be distributed,
deprived the plaintiff of something which had a monetary
value.
Held Fletcher Moulton LJ
● Is expulsion from a limited class of competitors an injury? To my mind there can be
only one answer to that question; it is an injury and may be a very substantial one.
Therefore the plaintiff starts with an unchallengeable case of injury, and the damages
given in respect of it should be equivalent to the loss. But it is said that the damages
cannot be arrived at because it is impossible to estimate the quantum of the reasonable
probability of the plaintiff's being a prize-winner. I think that, where it is clear that
there has been actual loss resulting from the breach of contract, which it is difficult to
estimate in money, it is for the jury to do their best to estimate; it is not necessary that
there should be an absolute measure of damages in each case
