Negligence: Standard of Care

What is Standard of Care

o What is the level of duty imposed onto the DF
o Level can be defined by type, quantitative or meet up to the
expectations of the duty determined by what society expects
from them
o It is a purely factual enquiry rather than a legal one

Difference between DUTY and SoC

o Legal test vs factual enquiry
o Based on case law vs current circumstances at hand
o General umbrella term vs fact specific details

The Reasonable Man Test

o This is an objective test
o Measure of reasonableness = objective
o Obligation by DF = objective

Glasgow Corporation v Muir [1943]

DF owners of a teashoptwo people carrying a teapot of hot water

unfortunately scalded six children (PF)

HELDno negligence as SoC not breachedtearoom was run

according to normal practice back in those daysno special
requirement to protect the children

Per Lord Macmillian The degree of care for the safety of others
which the law requires human beings to observe in the conduct of
their affairs varies according to the circumstances. There is
no absolute standard, but it may be said generally that the
degree of care required varies directly with the risk
involved. The standard of foresight of the reasonable man is, in
one sense, an impersonal test. It eliminates the personal equation
and is independent of idiosyncrasies ... [t]he reasonable man is
1

presumed to be free both from over-apprehension and from

over-confidence

It is still left to the court to decide what, in the circumstances of

the particular case, the reasonable man would have had in
contemplation, and what, accordingly, the party sought to
be made liable ought to have foreseen

Thus, difficulty in application of the test since each judge has

their own opinionlevel of objectiveness varies depending on
various judgesopinion of the judges also dependent on
contemporary expectations

Blyth v Birmingham Waterworks [1856]

DF laid a water main and there was a fire plug in the main

Severe frost 1 month ago caused the plug to be dislodged and

water seeped into the PF house

HELDreasonable person would have acted with reference to the

average temperature of the yearsstate of extreme
circumstances where no reasonable person could avoid

Elements of the Reasonable Man Test

o Objective

Judged not on that of the subjective skill, competence or mind of

the DF but that of the most excellent and odious character, the
Reasonable Man (AP Herbert, Uncommon Law)

Critique: Not every person can maintain or sustain that level of

character due to lifes lemons (tiredness, bored, distractions,
illness)

Objective view but not absolutefluctuates on the factual matrix at

hand and social mores of the day per Chandran

o Reasonable

Hall v Brooklands Auto Racing Club [1933] 1 KB 205 at

244

The person concerned [ie The Reasonable Man] is sometimes

described as "the man in the street," or "the man on the Clapham
omnibus, or [as in the US] the man who takes the magazines at
home, and in the evening pushes the lawn mower in his shirt
sleeves" [ Singapore uncle???]

Not expected to guard against every eventualityabstain from

intentionally injuring others but not liable for every actsubject to

o Circumstances

Commonsense applicationtreats circumstances as a ruler to

gauge the level of reasonableness in the factual situation at hand.

o Foreseeability

Question to ask is whether harm can be foreseen at the relevant

time

Often overlaps with DoC and remoteness issues

Hindsight thus not applicable

Roe v Minister of Health [1954]

PFs given anesthetic for minor operations but the anesthetic was
contaminated during storage, resulting in paralysis

At that time not known that anesthetic could be contaminated in

that way where contaminate seeped in through minute cracks in the
test tubes

HELDSoC not breachedat that point in time SOP was to store

them that way and there was no knowledge of contamination
standardNO SUCH STANDARD OF CARE IN THE 1 st
PLACE

Relevant factors to consider in the measure of reasonableness

o Likelihood or probability of risk happening

Bolton v Stone [1951] PC

RES injured by cricket ball while standing on the road outside her
house
3

Ball flew from a cricket match adjacent to the road

There was a 7 foot fence surrounding the court

Balls rarely hit outside the court

HELD APP not liable for the harmthere is a DoC to prevent

balls flying outSoC not breached as probability of risk was so
low that a reasonable person will have disregarded the risk6
balls out of court in 28 years (mathematical probability and
degree of risk)

Miller v Jackson [1977]

PF claimed negligence for cricket balls flying over to their house

DF was a cricket clubinitially lots of balls but in 1976 a higher
fence was erected and reduced to nine over 2 year period

HELD DF liable for negligence and nuisanceprobability of balls

flying over much more than in Boltonhowever injunction for
stoppage of cricket not granted due to equity ( cricket club there
1st)

Hudson v Ridge Manufacturing [1957]

PF was injured by the prank of fellow employeeDF employer knew

about this and continued to hire him despite this knowledgefailed
his habitual conduct

HELDDF breached the SoC of the duty to protect the wellbeing

of employeesemployer knew or ought to have reasonably knew
of such behavior as shown by the several warnings given

o Gravity or seriousness of harm v probability

The Wagon Mound (No 2) [1967] 1 AC 617 PC

DF caused an oil spill in the Sydney harbour welding operations

nearby caused a massive fire which damaged PF ship

HELDit was foreseeable that in the shoes of a reasonable

dockside manager a fire will eventuatemagnitude of damage
was too high in comparison to the effort taken to prevent the
damage
4

Paris v Stepney Borough Council [1951]

PF an employee of DFhad a blind eye which DF knewduring

work he injured the other eye

Not standard practice to issue goggles in this field of work

HELDrisk of loss of sight significantly more severe compared

to others since he had only 1 eyePF was of a special class of
persons compared to the other workers due to circumstances

NOTEknowledge of particular circumstances of the is the turning

point of the case similar to Miller v Jackson

BNJ v SMRT Trains Ltd and LTA [2014] SGHC 286

PF is a 14 year old girl who fell into the MRT tracks in AMKinjury
resulted in amputation of both legssued SMRT and LTA

HELDSoC not breachedDF not required to eliminate ALL risk

but to take reasonable precautions to reduce risks to a reasonable
levelyellow lines conform to international standardsspeed of
train vs infinitesimal risk of anyone falling into train track =
reasonablebalancing of probability, seriousness of harm and
the practicality of prevention

o Practicality of prevention of risk (is it worth it?)

The Wagon Mound (No 2) [1967] 1 AC 617 PC

DF caused an oil spill in the Sydney harbour welding operations

nearby caused a massive fire which damaged PF ship

HELDit was foreseeable that in the shoes of a reasonable

dockside manager a fire will eventuatemagnitude of damage
was too high in comparison to the effort taken to prevent the
damage

Haley v London Electricity Board [1965] AC 778

DF had workers digging a trench in the pavementdid not keep

tools and PF who was blind tripped and fellcaused deafness

HELD it was reasonable that a blind person will walk down the
street and thus appropriate protectioncost of precaution much
lower compared to the risk of injury

NOTE fairness to the PF already debilitating disability? How

would one know the magnitude of damage prior to accident???
Judgment most likely because of protection of people of
disabilities

o Justification of taking the risk (balancing of risks)

Watt v Hertfordshire CC [1954] 1 WLR 835

Woman was trapped under a lorry and a fire truck by DF

transported a huge jack to help

Lorry not supposed to transport the jackfell on PF who was in the

back of the truck

HELD Must balance the risk against the end to be achieved

saving 1 life vs risk involved per Lord Denning

Latimer v AEC [1952]

DF factory was flooded and floor became very oilysawdust put to

absorb oil but PF, being unaware, slipped and fell due to the surface

HELDDF not liablewas reasonable in allowing factory to

continue operationsbalancing the risk and measures to
remove it, it is more unfair to the factory if it is to shut down vs 1
persons harm per Lord Denningsimilar to Watt 1 persons injury
vs economical loss of factory

o Time for the assessment of risk

Roe v Ministry of Healthhindsight

o Special Characteristic of the PF

Paris v Stepney Borough Councilalready had pre-existing

condition

Particular Considerations
o Commonsense and self-protection from the PF

Qualcast (Wolverhampton) v Haynes [1959]

PF, an experienced worker, injured during workwas not wearing

protective spats given by DF

HELD DF not liablebecause PF was an idiot

James v Hepworth & Grandage [1968]

PF was illiteratecannot read warning signsinjured while

working for DF

HELDDF not liableDF did not know he cannot read and not
expected to know he was since illiteracy was extremely rare

NOTEcompare Paris

Chandran v Dockers Marine [2010] 1 SLR 768 SGCA

PF worked for DF in the stevedoring/ship businessDF failed to

provide safety belt and harnesses and risk assessment

HELD DF breached the SoC employers must take all reasonable

steps to prevent risk of falling and consequential injuries that
followextent of duty to protect the employees well-being not fixed
but need to conform to prevailing needs and contemporary values
of societymatter of common sense

NOTEoverarching duty to protect employees

o Emergencies

Carmarthenshire CC v Lewis [1955] HoL

4 year old child wandered off while teacher employed by APP was
attending to the injuries of another studentlorry swerved to avoid
the boy and killed the driver RES

HELD APP not responsibleteacher acted reasonably due to

difficulty in making correct actions during emergencies

Wilsher v Essex Area Health Authority [1987] CA

per Lord Mustill at 749An emergency may overburden the

available resources, and, if an individual is forced by
circumstances to do too many things at once, the fact that he
does one of them incorrectly should not lightly be taken as
negligence.

o Sports

Wooldridge v Sumner [1963]

PF was a photographer at a horse shownot within the spectator

stands due to nature of workDF horse crashed into PF

HELD per Lord DiplockPF accepted the risk involved in the

horse race evidenced by his acceptance of workdamage by DF not
cause recklessly or deliberately but due to error in judgement

NOTEsports man only breach the duty if they show reckless

disregard

Penal Code section 87Act not intended and not known to

be likely to cause death or grievous hurt, done by consent

o Inexperience ( PUBLIC POLICY CONSIDERATIONS)

General Rule inexperience is NOT AN EXCUSEpotential harm

to others overrides unfairness to PF

Nettleship v Weston [1971]

Pf was teaching Df how to drive

3rd occasion, accident occurred and struck a lamp..PF injured and

sue DF

HELDall drivers held to the same SoC as normal drivers

inexperience is in the domain of mitigation

NOTEJudgment seems to be centered on PP and on balancing

risks since PF was insuredUK court rejected the subjective
element of knowledge and experience (that DF knows PF is a
learner and thus accepts risk)difficult to access and gauge

Imbree v McNeily [2008] HIGH COURT OF AUSTRIALIA

PF was injured in a motor accidentPF was supervising DF who

just had his licenceinjuries was severe

HELDSame as Nettleshipoverturned the Cook v Cook

which adopted the inexperience is an excuse as PF knew of DF lousy
driving?
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Ng Keng Yong v PP [2004] SGHC 171

RES was a trainee officer in charge of the ship during night time
error in navigation resulted in collision the loss of lives of the ship

HELDapplied Nettleshipmatter of policy since potential harm

to public severe

NOTE3rd parties have no choice in the matter but the DF usually

has

Mansfield v Weetabix Ltd [1998]

DF Lorry driver did not know he suffered from malignant

insulinomadrove while having an episode and crashed into PF
shop

HELDSoC not breachedSoC not absolute as it is totally no fault

of hisunaware of his condition

NOTEthis is incompetence due to conditions and not

incompetence for incompetence sakehighly improbable to be
implemented in SG Hui An li

o Age

General rulereasonable standard of a childs behavior judged by

children of the similar age group

Mullins v Richards [1998]

PF and DF were fighting an flicking rulers at each otherDF

injured PF in the processboth were 15 year old girls

HELD DF not liablejudged according to the reasonable girl

of 15 years of age instead of a reasonable man

McHale v Watson [1966] AUS HC

DF and PF were playing tagDF being a naughty boy tossed a piece

of metal rod at a wooden plank, bounced off and injured PF

HELDSimilar to MullinsSoC to be at the level of a

reasonable 12 year old boy

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Basis for special leeway children being children do not fully

understand the gravity of the consequence of their
actionsno choice in being young (but a reasonable person also
has no choice at being inexperienced in the 1st job one does!!!)

o Professionals

General rule SoC at the level of reasonable man of the same

industry/fieldwhat the others of the same field would have
donefor MED its a binding principle for others not yet

Philips v William Whiteley [1938]

PF asked DF to pierce his earsDF refered PF to a jeweler who

proceeded but ear became infected

HELD SoC not breached as jeweler not expected to be same SoC

of a surgeon doing a surgeryfails causation test of but for also

Wells v Cooper [1958]

DF fixed a door knob by himselfPF injured himself when he used

the door too stronglyDF should have used longer screws

HELD DF not liable SoC to an amateur DIY carpenter and not

to a professional onenot judged to the contractual obligations of a
skilled carpenter working for $$$...

Shakoor v Situ [2000]

PF went for TCM treatment given by DFdied after course of

treatment

HELD SoC to be the reasonable level to that of a reasonable TCM

practitioner and not orthodox medical practitionermust however
be abreast with current information of orthodox medical
journals (i.e. if west say poisonous and u apply, DF will be liable)

Ang Tiong Seng v Goh Huan Chir [1970]

HELD though TCM standard is to be the level of prevailing TCM

practitionershowever there must be a minimum level of
competencein line with Shakoor of being in line with orthodox
medical practices
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o Medical Practitioners

Bolam v Friern Hospital Management Committee [1957] 1

WLR 583 HoL

PF was undergoing electro therapy treatment for his mental illness

(relatively new)DF not given relaxants and later had a violent
outburst during the procedure that resulted in a serious fracture

Divided opinion on the use of drugs by doctorsrisk of death vs

risk of fracture, both small

HELD not guilty and formulated the Bolam Testa medical

professional 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."

Context of 1) Duty to inform of risks and 2) duty of treatment and

diagnosis1) in flux 2) always adopted

CRITICISMS Overly doctor friendly since in it is almost always

possible to find a contrary view...Court trying to push away
responsibility of adjudication as formulation=no preference of
court to choose either dividing opinion

Rejected in Rogers v Whitaker (1992) in Aus, Reibl v

Hughes in Canada and Foo Fio Na v Soo Fook Mun [2007] in
Msia

Sidaway v Bethlem Royal Hospital Governors [1985] HoL

PF suffered from pain in upper torsoDF doctor took her consent

and did a procedure that resulted in her paralysis1% risk here is
always present

HELD court applied BOLAM TEST for 1) and 2)no need to tell
her of the remote side effectsLord Scarman dissenting said
doctor must tell risk since it affects autonomy of the PF own life

R v Pretice, R v Sullman [1994]

14

DF doctors were carrying out injections on a youthnegligence in

injection resulted in death

HELD

Bolitho v City & Hackney Health Authority [1997]

PF son was having breathing difficultiesDF did not attend to PF as

DFs bleep not workingDF claimed that even if she attended, she
would not have intubated PF which may have saved the PF life2 nd
doctor said same thing

HELD DF not liableapplied Bolam and refined it by including

the means to assess whether the others would have done the same
by the DF, it has to be based on 1) LOGIC and 2) DEFENSIBLE
here passed 1) and 2)

Khoo James & Anor v Gunapathy Muniandy [2002]

SGCA

HELDadopted and applied Bolam and Bolitho [58] Bolam

reigns supreme to confer near-immunity to the medical
profession from actions in negligence. In the rare case,
though, liability c[an] still be established [144] recognition that
judicial wisdom has its limits. A judge, unschooled and
unskilled in the art of medicine, has no business adjudicating
matters over which medical experts themselves cannot come to
agreementFurthermore, the lawyer-judge in playing doctor at
the frontiers of medical science might distort or even hamper
its proper development.

NOTEbut a judge is also unskilled and unschooled in other

disciplines lol

Surender Singh s/o Jagdish Singh v Li Man Kay [2009]

SGHC

PF died after a surgeryclips inside him dislodged...DF1 doctor did

the operation and DF2 hospital failed to monitor the patient
satisfactorily

HELD DF1 not liableDF2 liable under causation

JU v See Tho Kai Yin [2005] SGHC

15

HELDDF doctor not liable for negligencefailure to inform

mother of risk of Down Syndrome clashescourt also reluctant to
impose duty here due to moral issues of wrongful life

o Other Professionals

JSI Shipping v Teofoongwonglcloong [2007] (CA)

Case involving auditors and their clientsnegligence in auditing

accounts

HELDBolam is to be applied to other professional

occupations standard of an ordinary competent exponent of his
profession along with1)logic and 2) defensible add-ons of
Bolithohowever more responsibility is to be taken by the court
as compared to
Gunapathy in [51]non-delegable
adjudicatory mandate to assess the appropriate standard of
care

NOTEStandard practice or industry standards DOES NOT

automatically mean the practice is legally correct (SoC
reached)

Edward Wong Finance Co Ltd v Johnson, Stokes and

Master [1984] ACPC from HK

DF conducted a mortgage transaction in a differing style from the

traditional English-stylednorm in HKresult is a solicitor
absconded without providing documentsDF argued that that was
in accordance with a body of professional opinion and widely used
in HK.

HELDDF liable in negligenceobvious risk which negligence

could have been guarded againstfailed 1) logic test of Bolitho
unjustly lax practicealso held that seldom a judge will say a
doctor is unreasonable

Is it because the judges in UK prefer their style instead of HK???

Favoritism involved???

o Differing SOPs

Sato Kogyo v Socomec [2012] SGHC

16

DF caused a fire in their factory operationssome of the equipment

were tested less than stringent but still satisfied industrial
standards

HELD in the absence of a single clear industry standard, and

given that DF itself prescribed two kinds of testDF was obliged to
meet the higher of the two standards, which it had not done with
respect to some of the equipment DF thus liable in breach of the
SoC

17

Res Ipsa Loquitur

PF always has the burden of proof to prove DF breached his duty or failed
to meet the SoC
If PF cannot do so because there is no direct evidence, it does not
automatically mean DF is not liable
PF can plead Res Ipsa Loquitur thing speaks for itselfthen PF has a
prima facie case and burden of proof shifts to DF to deny the breach
Three conditions to satisfy
o Reasonable evidence of negligence as the cause
o DF is in sole control of the situation
o The thing that happened to the PF would not in the ordinary course of
things happen unless for negligence
o Cause of accident unknown

Cases
o Scott v The London and St Katherine Dock Co [1861-73]
o HELD sacks of sugar do not fall out of warehouses and crush
passers-by without somebody having been negligent along the way...3
guidelines from this case
o Qualcast v Haynes [1959]
o PF worked for DFDF provided safety boots for workers but did not
enforced itno evidence of industrial practice
o HELDDF not liable as risk was obvious, injury unlikely to be serious
and PF was experiencedprecedents are of value only in terms of the
general principles which they establisheach factual matrix is different so
a same result cannot be guaranteed with absolute certaintydoes not
mean an employer is always at fault for not making sure the PF never wear
since its a question of fact
o Tan Siok Yee v Ching Voon Kee Ivan[2005]

18

o DF reversed into PF while parkingPF claimed Res Ipsa Loquitar that

something the DF did caused the PF state
o HELD per [49] Res ipsa loquitar is only applicable where the facts
proved are more consistent with negligence on the part of the defendant
than with other causesmust1st prove negligencedoctrine only
applicable for negligence
o

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Bolton v Stone
Parties
Pf: Miss Stone, injured by cricket ball
Df:
Court
Privy Council
Facts
Miss Stone was injured by a cricket ball while standing on the
road outside her house
Ball flew from a cricket match adjacent to the road
There was a 7 foot fence surrounding the court
Balls rarely hit outside the court
Held
Not liable in damages
Issues
When is a SoC breached, the mere possibility the accident may occur
or depending on the probability?
Important
[858]the ball flying outside was a possibilityextreme SoC cannot
Points
be imposedmust consider probability of act and the injury
caused
[860]quantam of damages must always be a question of degree
not enough there is a possibilitywould a reasonable man anticipate
it
[860]there is a DoC to prevent balls from hitting people outside
SoC on the reasonable man..
[861]therefore not enough for the plaintiff to sayforeseen the
possibility of the ball might be hit out onto the roadgo further and
say as reasonable men, foreseen the possibility of such an
occurrence happening
[863] Standard of an ordinary careful mandoes not take
precaution to every single foreseeable risklife would be impossible
if he were to attempt to take precautions against every riskagainst
risks which are reasonably likely to happen
[864]chance of person ever being struckvery smallif injury to
another person from the Df acts is reasonably foreseeable the chance
that injury will result is substantial and it does not matter in which
way the duty is stated
[867]take into account not only how remote is the chance that a
person might be struck but also how serious the consequences are
likely to be
[869] unless there has been something which a reasonable man
would blame as falling beneath the SoCabandon the use of ground
for cricket or increase the height of the fences
Evaluation
of Foreseeability vs chance?
case
Injury vs act?
20

Just mere foreseeability of the act is not enough it must also

follow that the foreseeability is of reasonable likelihood and that the
injury must be sufficient.
Nettleship v Weston
Parties
Pf: experienced driver teaching Df
Df: learner driver
Court
UK CoA
Facts
Pf was teaching Df how to drive
Pf went ahead after the car was insured against risk of injury
to a passenger
3rd occasion, accident occurred and struck a lamp standard
Pf sued Df for negligence
Held
Cannot rely on volenti non fir injuria as the Pf did not consent
to running the risk of injury
SoC of a learner driver = Experienced driver
Issues
Important
[698G]: such a plea only can go to mitigation of sentence
Points
[699F]: eliminates the personal equation and is independent of the
idiosyncrasies of the particular person whose conduct is in
questionlearner driver may be doing his best but his best is not
good enough
[699H]: high standardpolicy of the RTAinjured person is only
able to recover if the driver is liable in law
[700A]: moving away from no liability without fault and to on whom
should the risk fallmorally the learner driver is not at fault but
legally is because she is insured and the risk should fall on her
[700C]: passenger in the carown DoCwhat is the SoCsame
standard as those towards outsidebut passenger knows the drivers
inadequacies and accepts a liftno breachknowingly accepts the
voluntary services of a driver affected by drink
[700G]: I cannot agreeif the driver were to be excused according to
the knowledge of the passengerresult in endless confusion and
injusticeknowledge may go to show he was guilty of contributory
negligencedoes not take away DoC nor diminish SoC
[702C]: but the instructor who is just a friend helping to teach never
does insure himself. He shoud, therefore, be allowed to sue
[708H]: legal process couldaccessing or applying to the facts of a
particular case such varying standardsnot merely of a particular
persons actual skill or experience but also of another persons
knowledge or assessment of that skill or experience at that particular
moment of time.
21

Evaluation
case

[710A]: in many cases ceased to be based on moral

blameworthiness
[710F]: mere fact that the passenger knows of the drivers
inexperience is not enoughspecial facts and circumstances
of Judgment seems to be centred on PP and on balancing risks
UK court rejected the subjective element of knowledge and
experience because it is difficult to access and gauge.
Denningbreach and contributory negligence
Maggoreagreed with ratio, not contributory negligence
Simmondisagreed in ratio, but contributory negligence

Bolam v Friern Hospital Management Committee

Parties
Court
Queens Bench/jury
Facts
Held
Df not liable for negligence.
Issues
Important
[586]: the test is the standard of the ordinary skilled man exercising
Points
and professing to have the special skillneed not possess the highest
expert skillordinary skill of an ordinary competent man exercising
that particular art
[587]: In the realm of diagnosis and treatment there is ample scope
for genuine difference of opinion and one man clearly is not
negligent merely because his conclusion differs from that of other
professional men, nor because he has displayed less skill or
knowledge than others would have shown. The true test for
establishing negligence in diagnosis or treatment on the part of a
doctor is whether he has been proved to be guilty of such failure as
no doctor of ordinary skill would be guilty if acting with ordinary
care
[587]: there may be one or more of these standardsas long as he
conforms with one of those he is not negligenta man is not
negligence if he was acting in accordance with such a practice
merely because there is a body of opinion who take a contrary view
[588]: must not look with 1957 spectacles at what happened in
1954
[588]: three pointsquestion of warningshould relaxants be
usedif not should manual support be used?
[588]: Does good medical practice requires a warning to be given
andif a warning has been made what difference would that make?
[594]: suffered terrible consequence natural feeling should be
22

Evaluation
case

compensationbut doing a disserviceimposing a liability onto

hospitals and doctors for everything that happens to go wrong
insist due care but not condemn a misadventure as negligence
of Sympathetic nature to SoC to doctors
Extremly hard for Pf to claim for medical negligencedependent on
the self-regulatory systems of the profession itself
Problems of various schools of thoughts in medical practicetaking
in mind that the field of medicine is ever moving forwards

Khoo James and another v Gunapathy d/o Muniandy and another appeal
[2002] SGCA 25
Parties
Appellant: Doctors
Respondant: Mrs Gunapathy, patient
Court
SGCA
Facts
Gunapathy was to find that she was afflicted with a brain
tumour
she had a tumour in the left lateral ventricle of her brain.
This growth led to the blockage and build-up of cerebrospinal
fluid, a condition known as obstructive hydrocephalus.
DrKhoo, who on 15November 1995, performed a craniotomy,
or open brain surgery, on her.
Gunapathy was referred to DrKhor for post-operative
radiotherapy treatment.
The scan revealed a lesion it may have represented scar
tissue from the previous surgery, as opposed to a possible
tumour.
DrTan explained in court that this time she thought it was
more likely a scar than a tumour.
DrKhoo, however, took a different view likely to be a
remnant tumour
Gunapathy consulted with DrKhoo, followed by DrKhor. At
this last session, both claimed that they advised her on the
advantages and disadvantages of radiosurgery as well as its
attendant risks.
In totality, she had thus seen four consultants over six
occasions in the period from 14January to 27January 1997.
The radiosurgery, however, led to very serious side-effects.
she also required permanent care for the rest of her life.
Held
23

Issues
Important
Points

[3]: We state at the outset that this court would politely decline the
invitations of both counsel to enter the fray that is the arena of
divided medical opinionthe legal principle in Bolam v Friern
Hospital Management Committee [1957] 1WLR 582; [1957] 2All ER
118 restrains the Judiciary from treating medical experts as they
would any other.
[35]: It is pertinent to note that radiosurgery was in 1997 a relatively
new treatment in Singapore.
[39]: It was therefore evident that in 1997 the treatment of
neurocytomas by radiosurgery was largely uncharted territory. This
would form the basis of the plaintiffs allegation that the doctors had
been negligent by treating her with radiosurgery, and by applying
too high a dosage during the treatment.
[58]: As a result, Bolam reigned supreme to confer near-immunity
to the medical profession from actions in negligence.
[59]: Bolitho v City and Hackney Health Authority [1998] AC232;
[1997] 4All ER 771 the court was not bound to find for a defendant
doctor simply because a body of experts testified in his favour. To
qualify as a responsible body of opinion, such testimony must have a
logical basis comparative risks and benefits and have reached a
defensible conclusion on the matter
[61]: Yeo Peng Hock Henry v Pai Lily [2001] 3 SLR(R) 555House
of Lords held that while assessment of medical risks was for medical
experts to make, a judge could, in a rare case, disregard a body of
opinion as not reasonable or responsible where it could not be
logically supported
[63]: In our view, Bolitho presented a timely addendum to the
Bolam test. It gave voice to a commonsense understanding which
was hitherto unexpressed that the Bolam test did not represent
immunity from judicial inquiry over the medical process An expert
view, in order to qualify as representative of a responsible body of
medical opinion, had to satisfy the threshold test of logic.
[64]: The first inquiry, according to the learned law lord, is whether
the expert directed his mind at all to the comparative risks and
benefits relating to the matter
[65]: The second stage of inquiry relates to whether the medical
expert had arrived at a defensible conclusion as a result of the
balancing process
[69]: Hence, the willingness of the court to adjudicate over differing
opinions in other professions should not be transposed to the
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Evaluation
case

medical context.
[73]: to consider whether the views of the medical experts were
logical, not whether one was superior to the other.
[93]: the diagnosis of a tumour of the brain was a difficult and
imprecise science First, did the defence experts address the
relevant countervailing factors in coming to their conclusion?
Second, was the conclusion of the experts defensible, in the sense
that it was internally consistent, and did not controvert known
external facts?
[131]: Furthermore, it must be borne in mind that Gunapathy was an
educated person, with the presence of mind to seek confirmation by
obtaining a second opinion. She had also been suffering under the
spectre of brain cancer for more than a year. It seemed most unlikely
that she would have allowed herself to be brushed aside with halfbaked advice that radiosurgery was simple without more. In the
totality of evidence, we accepted the account given by the doctors
that they had properly informed her of the risks inherent in
radiosurgery.
[141]: if a risk was substantial and there was no cogent clinical
reason why disclosure should not be made, the judge was at liberty
to conclude that no respectable medical expert would have failed to
make it.
[144]: A judge, unschooled and unskilled in the art of medicine, has
no business adjudicating matters over which medical experts
themselves cannot come to agreement. This is especially where, as in
this case, the medical dispute is complex and resolvable only by
long-term research and empirical observation.
of Bolitho exception to BolamLogic test, defensible (scientific facts,
not contridictary etc. then bolam.
How could medical evidence be based on LOGIC when its premise
and foundation is based on not logic but medical science?
X-knife procedure relatively newso how to ascertain responsible
body of experts.

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