Penney & Ors v East Kent Health Authority

In professional negligence cases, the Bolam approach applies to skilled judgments, but it does not determine disputed facts. The court must first decide what the evidence shows, including what was visible on a diagnostic slide. It must then decide whether the professional’s response was reasonable at the relevant time.

A body of professional opinion does not protect a defendant if it lacks a logical basis under Bolitho v City and Hackney Health Authority [1998] AC 232. Where a screener could not confidently treat observable abnormalities as harmless, the proper course was referral for further examination. The development of cancer does not itself establish negligence. An appellate court should respect factual findings based on expert evidence unless the trial judge plainly erred.

Three claimants brought actions against the defendant health authority after cervical smears taken under the national cervical screening programme were reported as negative. Each claimant subsequently developed invasive adenocarcinoma. The trial judge found the authority liable on the issue of breach of duty, but causation was left undecided by agreement.

The authority appealed, arguing that the judge had misapplied the Bolam principle, wrongly treated matters of professional opinion as questions of fact, and inadequately assessed the experts’ evidence. The central issues were what abnormalities were present on the slides, whether a reasonably competent screener could have failed to detect them, and whether the slides could reasonably have been reported as negative.

The Court of Appeal, in a judgment of the court delivered by Lord Woolf MR, dismissed the appeal.

1. Applicable standard. The screeners were exercising professional skill and judgment. The Bolam approach was therefore generally applicable, subject to the qualification in Bolitho v City and Hackney Health Authority [1998] AC 232 that the supporting professional opinion must have a logical and defensible basis.
2. Fact and opinion. The court distinguished findings of fact from the evaluation of an established factual situation. The judge had first to determine what appeared on each slide. He then had to decide whether a reasonably competent screener, exercising reasonable care at the relevant time, could have failed to see the abnormality and could properly have classified the slide as negative.
3. Referral where there was doubt. The evidence supported an “absolute confidence” approach. A primary screener should not report a slide as negative where observable abnormalities meant that the screener could not confidently exclude a precancerous explanation. The safer course was referral to a checker or pathologist. The disadvantages of a false positive were materially less serious than those of a false negative.
4. Application to the slides. The trial judge was entitled to prefer the claimants’ experts, find that abnormalities were present, and conclude that the relevant slides should have been referred or classified at least as borderline. The decision did not establish that a later diagnosis of cancer makes an earlier negative report negligent.
5. Appellate review. Applying the guidance in Eckersley v Binnie, the Court of Appeal treated itself as a court of review. The trial judge had heard the oral expert evidence and had given a logical basis for his findings. No plainly erroneous conclusion or injustice had been shown.
6. The appeal was dismissed with costs. Leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): The appeal from the liability judgment was dismissed with costs. Leave to appeal to the House of Lords was refused.
• High Court: His Honour Judge Peppitt QC, sitting as a Deputy High Court Judge, found in favour of the claimants on liability. Causation was not determined.