Case No. 0LS79020

72. There was an implied term of the contract between the Trust and TTPM that TTPM would exercise reasonable care and skill in the performance of its functions: section 13 of the Supply of Goods and Services Act 1982. It is common ground between the parties that TTPM owed to the Trust a substantially similar duty of care at common law.73. Mr Fraser relied on the well-known statement of McNair J in Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582, 586-7, in the context of alleged clinical negligence, regarding the standard of care and skill required of a professional person at common law: “[W]here you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is … the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. … I myself would prefer to put it this way, that he 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 particular art. … Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.”74. In Bolitho v City and Hackney Health Authority [1998] A.C. 232, another case of alleged clinical negligence, the House of Lords confirmed that McNair J’s formulation of the test for the standard of care applied to any person professing some skill or competence. Lord Browne-Wilkinson, with whom the other members of the Judicial Committee agreed, went on to consider the approach of the courts when faced with a conflict of expert opinion. At 241-2 and 243 he said:“[I]n my view, the court is not bound to hold that a defendant doctor 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. In the Bolam case itself, McNair J. [1957] 1 W.L.R. 583, 587, stated that the defendant had to have acted in accordance with the practice accepted as proper by a ‘responsible body of medical men.’ Later, at p. 588, he referred to ‘a standard of practice recognised as proper by a competent reasonable body of opinion.’ Again, in the passage which I have cited from Maynard's case [Maynard v West Midlands Regional Health Authority [1984] 1 W.L.R. 634], Lord Scarman refers to a ‘respectable’ body of professional opinion. The use of these adjectives—responsible, reasonable and respectable—all show that the court has to be satisfied that the exponents of the body of opinion relied upon can demonstrate that such opinion has a logical basis. In particular in cases involving, as they so often do, the weighing of risks against benefits, the judge before accepting a body of opinion as being responsible, reasonable or respectable, will need to be satisfied that, in forming their views, the experts have directed their minds to the question of comparative risks and benefits and have reached a defensible conclusion on the matter.”“[I]n 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 … In my judgment that is because, in some cases, it cannot be demonstrated to the judge’s satisfaction that the body of opinion relied upon is reasonable or responsible. 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. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions. 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.“I emphasise that in my view 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. … [I]t would be wrong to allow such 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.” It may be noted that, when Lord Browne-Wilkinson invoked “logical analysis”, he was clearly referring to canons of reasonableness and rationality in a broad sense and not, narrowly, to processes of syllogistic reasoning.75. It ought to be borne in mind that the touchstone of an allegation of professional negligence is simply “the standard of the ordinary skilled man exercising and professing to have that special skill”; the Bolam test, as is clear from the terms in which McNair J expressed himself, is by way of the “unpacking” of the implications and application of that test in a common situation. But not every allegation of professional negligence raises questions of competing schools or bodies of professional thought or practice. In some cases evidence as to what should or should not have been done in a given situation is “not truly evidence of practice but of personal re-action”—see the judgment of H.H. Judge Humphrey Lloyd Q.C. in Royal Brompton Hospital NHS Trust v Hammond (No. 9) [2002] EWHC 2037 (TCC) at paragraph 16—or, at most, of identification of the factors and considerations that would present themselves to a competent professional faced with the case in point. I shall say more on the role of expert evidence later in this judgment. Regarding the application of the Bolam test, Ward LJ had this to say in Michael Hyde & Associates Ltd v J.D. Williams & Co Ltd [2001] P.N.L.R. 233 at paragraph 25:“There are qualifications to it as follows.1. One such qualification is provided by Bolitho as quoted above, namely: ‘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.’2. Another is referred to in Nye Saunders [Nye Saunders and Partners v Alan E. Bristow (1987) 37 B.L.R. 92] where Stephen Brown L.J. held: ‘[The judge] was entitled to take the view that the evidence of [the architect's experts] did not constitute evidence of a responsible body of architects accepting as a proper practice that no warning of inflation need be given when providing an estimate of the cost of proposed works. It seems to me that the learned judge had ample evidence before him which entitled him to find that there was a failure on the part of Mr Nye to draw the attention of the client to the fact that inflation was a factor which should be taken into account when considering the ultimate cost and that the failure constituted a breach of the Hedley Byrne type duty to the defendant.’3. The third qualification is expressed by Lloyd L.J. in Gold v. Haringey Health Authority [1988] 1 Q.B. 481, 490: ‘If the giving of contraceptive advice required no special skill, then I could see an argument that the Bolam test should not apply.’”