De Maynard v Streatham Hill Veterinary Surgery

Professional negligence is assessed by reference to the Bolam test. A practitioner is not negligent merely because another respectable body of professional opinion would have adopted a different course. The court may nevertheless reject a professional practice that is logically indefensible. The same approach governs an allegation that a professional negligently failed to explain risks: negligence requires either the absence of a substantial body of reputable professional opinion supporting non-disclosure or conduct which the court considers clearly unreasonable in the circumstances. Where the accepted practice is supported by substantial professional opinion and the case has no unusual features requiring further explanation, the claim cannot succeed.

Dr Vernon De Maynard claimed damages against a veterinary surgery after his dog developed serious health problems following a second vaccination. He alleged that the veterinary surgeon had negligently repeated a vaccination component, disregarded a body of expert opinion concerning over-vaccination, failed to explain the competing views and caused the dog’s subsequent illness.

HHJ Zucker dismissed the claim in the Central London County Court on 15 February 2001. The judge applied Bolam v Friern Hospital Management Committee and concluded that the defendant had followed accepted professional practice and that causation had not been established. The issue before the Court of Appeal was whether there was a realistic prospect of showing negligence either in following the vaccination practice or in failing to disclose the disputed risks.

1. Permission refused. The claimant had no realistic prospect of establishing negligence or causation. The application for permission to appeal was therefore refused.
2. Following an accepted professional practice is not automatically conclusive. Under Bolam v Friern Hospital Management Committee [1957] 1 WLR 582, the court assesses whether the conduct accords with a substantial body of responsible professional opinion. The court also accepted the qualification derived from Bolitho: a practice may be rejected if it is logically indefensible.
3. On the evidence, administering the second vaccination with the same components was a practice adopted by a substantial, possibly overwhelming, body of veterinary opinion. It was consistent with the surgery’s standard instructions and the manufacturers’ instructions then applicable. A claim based simply on following that practice could not succeed.
4. The allegation of negligent non-disclosure was governed by Sidaway v Governors of Bethlem Royal Hospital [1985] AC 871. The court applied the Bolam test to the failure to explain risks. The claimant had to show either that no substantial body of reputable veterinary opinion would have failed to explain the risks, or that it was clearly unreasonable not to do so in the particular circumstances.
5. The evidence showed a substantial body of professional practice, probably the general practice, that did not explain such risks before vaccination. The case had no unusual features requiring a special explanation: the claimant asked no questions before the vaccination and gave no indication that the matter required individualised discussion.
6. The lower court had also found that the evidence did not establish that the vaccination caused the dog’s later illness or death. Order: permission to appeal refused.

• Court of Appeal (Civil Division): permission to appeal from the judgment of HHJ Zucker in the Central London County Court dated 15 February 2001 was refused. The court held that the proposed appeal had no realistic prospect of success.