Sunday, 10 November 2013
Conflicting Views by Different Expert Witnesses in Accessing the Standard of Care of Professional’s Negligence Cases
Who shall prevail?
The case of Bolam v. Friern Hospital Management Committee lays down the typical rule for assessing the appropriate standard of reasonable care in negligence cases involving skilled professionals where McNair J held that:-
“Where you get a situation which involves the use of some special skill or competence, then the test is the standard of the ordinary skilled man exercising and professing to have that special skill. It is insufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. There may be one or more perfectly proper standards; and if he conforms to one of those proper standards then he is not negligent. He is not negligent if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in a particular art.”
Later when analyzing that standard of proof the learned judge made the following conclusive statement regarding a doctor's duty of care:-
“A doctor 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 medical act ... Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such practice, merely because there is a body of opinion that takes a contrary view.”
Hence, there are two limbs to the Bolam test:-
a. The first is the requirement of a professional person, to exercise reasonable care in undertaking the task associated with his particular professional calling.
b. The second being commonly invoked is the assertion that a defendant will not be liable under the first limb if he has complied with a responsible professional practice, allowing for the possibility that there may be more than one such practice.
The legal position as enunciated by McNair J therefore contains the important elements that the professional must have acted in accordance with an "accepted practice"; and that the accepted practice must be regarded as proper by "a responsible body of professional" in that art.
There were comments which say that such test has the effect of restraining the courts from scrutinizing and evaluating the professional conduct of a professional possessed of a special skill and competence and that he is not negligent if he has acted within a practice accepted as proper by a body of his own peers who possess similar skill and competence as the professional in question. It does not matter whether there exists another body with a differing opinion that does not accept the action taken by the professional. It is sufficient that he had acted in accordance with one of the bodies of opinion and the courts can never declare his action to be in any way negligent.
Hence, the latter cases are saying that there must be an objective test based upon the court’s perception of what protection of the public requires. In Rogers v Whitaker, the High Court of Australia in holding that the correct test is objective made the following pronouncements:-
“In Australia, it has been accepted that the standard of care to be observed by a person with some special skill or competence is that of the ordinary skilled person exercising and professing to have that special skill. But, that standard is not determined solely or even primarily by reference to the practice followed or supported by a responsible body of opinion in the relevant profession or trade. Even in the sphere of diagnosis and treatment, the heartland of the skilled medical practitioner, the Bolam principle has not always been applied. Further, and more importantly, particularly in the field of non-disclosure of risk and the provision of advice and information, the Bolam principle has been discarded and, instead, the courts have adopted the principle that, while evidence of acceptable medical practice is a useful guide for the courts, it is for the courts to adjudicate on what is the appropriate standard of care after giving weight to "the paramount consideration that a person is entitled to make his own decisions about his life."”
To simplify, under the objective test, it is the courts who shall determine what the standard of care is, not the profession. This test was then fully endorsed in Malaysia for the first time in the case of Kamalam a/p Raman & Ors v. Eastern Plantation Agency (Johore) Sdn Bhd Ulu Tiram Estate, Ulu Tiram, Johore & Anor where Richard Talalla J, at p. 263 of his judgment had this to say:-
“ ... that the current state of the law, by way of elaboration may be found in the decision of the High Court of Australia given in Christoper Rogers v. Whitaker”
It was then followed in the subsequent cases such as the case of Foo Fio Na v Dr Soo Fook Mun & Anor and Tan Ah Kau v The Government of Malaysia.
The objective test is said to have loosened the weightage of a responsible body of opinion in the relevant profession or trade. Hence, when there are conflicting views by different expert witnesses in accessing the standard of care of professional’s negligence cases, it is the court who plays decisive role in adjudicating what is the appropriate standard of care after giving weight to "the paramount consideration that a person is entitled to make his own decisions about his life" as decided in the case of Rogers v Whitaker. The courts will not automatically bound by evidence as to the practice of the profession. It has an obligation to question and scrutinize the professional practice, to ensure that the standard set by law is attained.