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Bolitho v City & Hackney HA

[1998] AC 232

Case summary last updated at 19/01/2020 12:07 by the Oxbridge Notes in-house law team.

Judgement for the case Bolitho v City & Hackney HA

V was in hospital and suffered respiratory problems twice and recovered, the doctor having failed to turn up. He suffered another attack and suffered brain damage and, later on, died. V’s parents, Ps, sued D for negligence on the grounds that had the doctor arrived after the 2nd incident, he would have “intubated” the child, which would have prevented a further attack. However evidence was given to suggest that there was a competent body of doctors whose opinion would have been that it would have been wrong to “intubate” and so the attack would still have happened even if the doctor had been present after the 2nd attack. CA held that in cases where the alleged breach of the duty of care was an omission to undertake the proper action, what ought to have been done (i.e. whether the breach caused the injury) was to be determined by the Bolam test (a doctor was not negligent if he acted in accordance with a practice accepted as proper by a responsible body of medical opinion). However, the “body of professional opinion” relied on had to be a defensible position, and if it was found to be indefensible then the judge could refuse to allow it to be relied on in the Bolam test e.g. an opinion that amputation was the cure for a headache. However such a finding would be v. rare. – Lord Browne-Wilkinson (supported by all other lords). He said that the Bolam test is one of causation: if D would not have undertaken the necessary action and, in deciding not to do so, was acting within a reasonable body of medical opinion, then the hospital cannot be said to have caused V’s injury and death. This isn’t really a lack of causation, since the failure to intubate DID cause V’s death (intubation would have saved V and there was a duty of care). It is really an excuse, since D can say “yes, I should have intubated, but I my mistake was excusable on the ground that other reasonable doctors would have done the same”. 

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