Date: Fri, 11 May 2007 13:28

From: Steve Hedley

Subject: Good news/bad news

This seems to demand an awful lot of coolness from someone who has just been told he's going to die very soon. I might be more convinced of the relevance of the example if (i) recognised cow-counters spent several years in cow school before they were let loose on the public with their opinions and (ii) most people could work up as much interest in how many cows they were seeing as in how their own health was. As it is, it seems a long way from being materially identical.

Judges are at least as familiar with doctors as are most of the public, and as fellow professionals they will be receptive to the argument that mere opinions should not be given too much importance. Nonetheless it is hard to accept, as some list members seem to think, that such claims will always be thrown out as unarguable, or that they will be if the opinion is accompanied by a magic string of legalese which most people will not understand but a judge will.

Steve H

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Sent: 11 May 2007 12:58
To: 'BEEVER A.D.'
Subject: RE: [Fwd: [Fwd: ODG: RE: Good news/bad news]]

Dear all,

I'd be inclined to agree with this - it may be that there are foolproof criteria by which the doctor decides whether I'm going to die in 6 months or not, but I'm not sure that matters if it's presented as a matter of opinion. I talked about this sort of case a bit in my first ever publication in the 2000 Legal Studies. My example, which I think, is materially identical was a walk in the countryside. Turn to my friend and say "I think there are 50 cows in the field". My friend can't rely on that - I have disclaimed responsibility. There are several cases of the "I think" variety. Anderson v Pacific Fire and Marine Insurance (1871) LR 7 CP 65 is one. There was a letter from the captain and pilot of a ship saying they believed a particular anchorage to be safe. It obviously wasn't, and Byles J said it was at best a representation that two people considered it safe (which I guess means that if the doctor didn't really believe that I was going to die, I have a claim of some sort). There is, as I say, an implied disclaimer of responsibility in the words "I think".

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