Scottish Court of Session Decisions

At advising on 4th February 1955,—

LORD PRESIDENT (Clyde).—This is a note of exceptions, brought before us by the pursuer in an action against a doctor for professional negligence. The case was tried before Lord Patrick and a jury, and a verdict for the defender was obtained. The case arose out of the breaking of a hypodermic needle when the defender was giving the pursuer the twelfth of a series of injections of penicillin. One of the grounds of fault alleged against the defender was that the type of needle employed on the occasion in question was not strong enough, and that "any doctor possessing a fair and average knowledge of his profession would have known this." A question therefore arose at the trial regarding what was the normal and usual practice in regard to the type of needle required. In the course of his charge to the jury Lord Patrick directed them as follows on this matter:

"There must be such a departure from the normal and usual practice of general practitioners as can reasonably be described as gross negligence. I could use from cases of high authority in the House of Lords, Scots cases, much stronger adjectives than that, but all that I will say to you in conclusion on the general topic is that there must be a serious departure from a normal practice, if that normal practice has been proved, and the serious departure must involve a substantial and serious fault."

Counsel for the pursuer excepted to this direction, and requested the Judge to direct the jury that there must be a departure from normal practice which involves fault. This direction his Lordship refused to give. I am clearly of opinion that he was right in so refusing, as the direction asked for is plainly too vague to assist the jury at all.

The question still remains, however, as to whether the direction actually given is sound in law. The reference to "gross negligence" in the direction given no doubt springs partly from the fact that the words are employed throughout her pleadings by the pursuer in regard to the allegations she makes of deviation from the alleged practice, and, from that point of view, her pleadings certainly leave much to be desired in the way of fair notice of the case she now makes. For her real contention before us was that "gross negligence" was not the test of liability. But, although I have considerable sympathy with the technical argument on the pleadings—to the effect that the contention now presented by the pursuer is not open to her—I have come to the conclusion that it cannot absolve us from determining the soundness or otherwise of the direction given. For the averments of the pursuer are general enough to cover the case developed before us in argument.

To succeed in an action based on negligence, whether against a doctor or against anyone else, it is of course necessary to establish a breach of that duty to take care which the law requires, and the degree of want of care which constitutes negligence must vary with the circumstances—Caswell v. Powell Duffryn Associated Collieries, per Lord Wright at pp. 175–176. But where the conduct of a doctor, or indeed of any professional man, is concerned, the circumstances are not so precise and clear cut as in the normal case. 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 of if acting with ordinary care—Glegg, Reparation, (3rd ed.) p. 509. The standard seems to be the same in England— Salmond, Torts, (llth ed.) p. 511. It is a tribute to the high standard in general of the medical profession in Scotland that there are practically no decisions on this question in the reported cases. Farquhar v. Murray sheds little light on the general question, as it turned wholly on the facts. An analogy, however, is afforded by a series of decisions, mostly pronounced many years ago, in regard to allegations of professional negligence on the part of law agents advising their clients—Hart v. Frame & Co; Purves v. Landell; Cooke v. Falconer's Representatives; Hamilton v. Emslie; Blair v. Assets Co . In all these cases mere errors in interpreting the law or lack of knowledge of the law are not treated as constituting negligence. As the Lord Chancellor put it in Hart v. Frame, (at p. 614):

"Professional men, possessed of a reasonable portion of information and skill, according to the duties they undertake to perform, and exercising what they so possess with reasonable care and diligence in the affairs of their employers, certainly ought not to be liable for errors in judgment, whether in matters of law or of discretion. Every case, therefore, must depend on its own peculiar circumstances; and when an injury has been sustained, which could not have arisen except from the want of such reasonable information and skill, or the absence of such reasonable skill and diligence, the law holds the attorney liable."

In several of the opinions in these cases the words "gross negligence" are used. The use of such a criterion as the test of liability has been more than once criticised. For instance, Baron Rolfe in Wilson v. Brett says (at p. 115):

"I said I could see no difference between negligence and gross negligence—that it was the same thing, with the addition of a vituperative epithet."

But the compendious description "gross negligence," "culpa lata," "crassa negligentia" has frequently been adopted, in deciding Scottish appeals in the House of Lords, as the test of liability of trustees claiming protection under an immunity clause in the trust deed, e.g., Lord Watson in Knox v. Mackinnon, Lord Herschell, Lord Watson and Lord Fitzgerald in Raes v. Meek, Lord Herschell and Lord Watson in Carrufhers v. Carruthers, Lord Halsbury, Lord Morris, Lord Shand, Lord Davey and Lord Macnaghten in Wyman v. Paterson . I am not therefore prepared to say that the concept of gross negligence forms no part of the law of Scotland to-day.

In relation, however, to professional negligence, I regard the phrase "gross negligence" only as indicating so marked a departure from the normal standard of conduct of a professional man as to infer a lack of that ordinary care which a man of ordinary skill would display. So interpreted, the words aptly describe what I consider the sound criterion in the matter, although, strictly viewed, they might give the impression that there are degrees of negligence.

It follows from what I have said that in regard to allegations of deviation from ordinary professional practice—and this is the matter with which the present note is concerned—such a deviation is not necessarily evidence of negligence. Indeed it would be disastrous if this were so, for all inducement to progress in medical science would then be destroyed. Even a substantial deviation from normal practice may be warranted by the particular circumstances. To establish liability by a doctor where deviation from normal practice is alleged, three facts require to be established. First of all it must be proved that there is a usual and normal practice; secondly it must be proved that the defender has not adopted that practice; and thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if he had been acting with ordinary care. There is clearly a heavy onus on a pursuer to establish these three facts, and without all three his case will fail. If this is the test, then it matters nothing how far or how little he deviates from the ordinary practice. For the extent of deviation is not the test. The deviation must be of a kind which satisfies the third of the requirements just stated.

In these circumstances the direction given in the present case does not, in my view, accurately set out the legal criterion for liability, and the jury's verdict therefore cannot stand.

LORD CARMONT concurred.

LORD RUSSELL .—I agree with the opinion of your Lordship in the chair. I desire to add a few words in relation to the question whether the phrase objected to in the direction under review, when considered in its context, could possibly have misled the jury in respect of the burden of proof resting on the pursuer. In the direction of the presiding Judge, as set out in the note of exceptions, reference is made to Scots cases of high authority in the House of Lords in which in civil actions the words "gross negligence" had been used by a number of their Lordships. Apart from the very old decisions mentioned by your Lordship it is true that, in a series of cases decided in the closing years of last century, the term "gross negligence" was so applied in the House of Lords to acts or omissions of trustees, who were held personally liable for loss of trust funds through neglect of ordinary prudence amounting to breach of trust—see, e.g., Knox; Roes;Carruthers;Wyman. In each of those cases the trustees were non-professional men, administering trust funds as gratuitous trustees, and their conduct in each case was characterised as amounting to such neglect of ordinary prudence as amounted to culpa lata;and it was held that they had in the circumstances been guilty of "gross negligence" and were not protected by an immunity clause excusing them from error or neglect of management. Apart from such cases it appears to me that in civil claims based on negligence, and including claims against professional men, there is, as recognised in recent precedents and practice, only one standard, viz., the absence of reasonable care in the circumstances or ordinary culpa. It is, however, recognised that in relation to criminal responsibility, flowing from negligence, the words "gross negligence" are not uncommonly used to denote the very high standard of negligence or recklessness required to establish criminal responsibility —a degree of negligence which goes beyond a mere case of compensation between subjects in a civil claim, and is higher than ordinary negligence or culpa. In that situation I do not find it possible to affirm that in this case the use of the words "gross negligence" could not have misled the jury in respect of the burden of proof which the pursuer had to discharge.

LORD SORN .—It is curious that there should be no reported case in Scotland in which a decision has been given as to the grounds on which a doctor can be made liable in damages. In the only doctor's case quoted to us, Farquhar v. Murray, all that was decided was that the case was relevant for inquiry, two of the Judges indicating that "gross negligence" must be proved and the other two not committing themselves on the matter. It may be said, however, that, until recent times, the general impression has been that gross negligence must be proved in order to render a doctor liable. The impression has been derived from decisions and dicta pronounced in cases relating to solicitors. Chief among the dicta is the dictum of Lord Brougham in Purves v. Landell (at p. 57):

"It is of the very essence of this action that there should be a negligence of a crass description, which we call crassa negligentia; that there should be gross ignorance; that the man who has undertaken to perform the duty of an attorney, or of a surgeon, or of an apothecary (as the case may be), should have undertaken to perform a duty professionally for which he was very ill qualified, or if not ill qualified to discharge it, which he had so negligently discharged as to damnify his employer, or deprive him of the benefit which he had a right to expect from employing him."

It may be remarked that while the opening words of the dictum indicate that something more than ordinary negligence is required, the words which follow might almost serve as an illustration of what would now be described simply as negligence. It may be noted that in the contemporary case of Hart v. Frame & Co . Lord Chancellor Cottenham (at p. 615) does not use the expression "gross negligence" and makes liability depend upon the presence or absence of "that reasonable degree of information, skill, care and diligence which is required to protect professional men from the liability to indemnify their employers against the consequences of any error they may commit." In a series of cases relating to solicitors, extending at least to Blair v. Assets Co ., we find references by Judges of the Court of Session to the requirement of gross negligence or gross ignorance. We are dealing here with the liability of a doctor and, whatever may be the effect of these decisions upon the case of a solicitor, I think we must consider the question before us in the light of more recent authoritative decisions upon the subject of negligence and liability, and I refer in particular to Donoghue v. Stevenson; Caswell v. Powell Duffryn Associated Collieries; and Akerele v. The King, approving Rex v. Bateman . I think that these and other cases have resulted in a development which makes it doubtful whether, in a question of civil liability such as we have here, there remains any room for the conception of "gross negligence" as distinctfrom "negligence." Liability follows negligence, and negligence consists in the failure to fulfil a duty of care. Of course it must be seen to that the proper test for negligence is applied. Whether it is lack of skill that is alleged, or lack of diligence, or both, the defender must not be judged by too high a standard and I endorse what your Lordship has said on this matter.

LORD PATRICK concurred.