Burne v A

In clinical-negligence litigation, expert evidence identifies accepted professional practice under the Bolam test. A court must not choose between respectable professional schools, but may, under Bolitho v City and Hackney Health Authority [1998] AC 232, examine whether the professional opinion relied upon has a logical basis.

That safeguard can concern the clinical judgment involved in obtaining a diagnostic history. It cannot, however, be invoked against a party without procedural fairness. If the judge proposes to reject unchallenged expert opinion on a point not advanced by the parties, the parties and, where appropriate, the experts must have a proper opportunity to address it.

A child with a known ventriculo-peritoneal shunt became unwell and his mother telephoned his general practitioner. A telephone diagnosis of upper respiratory infection was made. The following day the shunt was found to be blocked, after the child had suffered serious injury.

At a liability-only trial, HH Judge Charles Harris QC found the practitioner negligent. He concluded that the practitioner should have asked specific questions which would have identified symptoms of shunt blockage. The judge rejected the jointly expressed expert view that such direct questions were not necessarily required, applying the Bolitho principle.

The practitioner appealed. The central issues were whether the judge could reject the expert evidence in that way and whether the evidence supported a finding that further permissible questioning was required.

Appeal allowed unanimously. The court set aside the judgment for the claimant and ordered a retrial.

1. The governing standard remained the Bolam test: medical negligence is assessed by reference to practice accepted as proper by a responsible body of practitioners skilled in the relevant field. Expert evidence assists the court in identifying accepted or tolerated practice. A judge cannot choose between two or more respectable schools of professional practice: Bolam v Friern Hospital Management Committee [1957] 1 WLR 583; Maynard v West Midlands RHA [1984] 1 WLR 634.

2. Per Sedley LJ, Bolitho v City and Hackney Health Authority [1998] AC 232 nevertheless permits a court to test whether the relied-upon professional opinion has a logical basis. The principle was capable of applying to clinical judgment about how to obtain diagnostic information, not merely to the ultimate diagnosis or treatment. The trial judge’s proposed use of the principle was therefore legally permissible in principle.

3. But the judge had decided an issue which neither party had advanced. He had not invited submissions on whether the experts’ agreed view lacked a logical basis, nor afforded the practitioner and the experts a proper opportunity to explain it. That procedural unfairness required the liability judgment to be set aside. Wilson LJ also identified that the judge had relied upon an expert answer to a hypothetical question whose premise did not arise on the findings made.

4. The Court of Appeal could not itself determine the unadjudicated contention that further open questions should have been asked within the experts’ accepted practice. The action was remitted for a de novo retrial. The retrial was to determine liability, including causation, because breach without causative damage creates no negligence liability and causation was neither discrete nor unsuitable for trial with breach.

5. No further step was to be taken before alternative dispute resolution had been attempted.

• Court of Appeal (Civil Division): Allowed the practitioner’s appeal, set aside the claimant’s liability judgment, and ordered a de novo retrial on liability including causation: [2006] EWCA Civ 24.

• High Court, Oxford: HH Judge Charles Harris QC found the practitioner negligent at a trial limited to liability.