Date: Fri, 11 May 2007 13:41

From: Robert Stevens

Subject: Good news/bad news

Allan wrote:

For my part, I can't see why any disclaimer would be required. Giving a prognosis to a patient of the following kind "In light of the evidence, it is our opinion that you will live for x months" is not the giving of a guarantee that the patient will die in x months. It is not the assumption of responsibility for the patient ceasing to exist in x months. Moreover, it is surely common knowledge that prognoses are not always accurate. As such, in the case we are discussing, I would have thought that the patient could recover only if (not if) the hospital gave him the impression that he definitely was going to die in the stated time.

I disagree, although as two members of the House of Lords were persuaded in OBG that it is possible to convert intangibles I suppose anything must now be thought arguable. Indeed as Duncan is of the same view it cannot be completely hopeless.

Nobody was suggesting that there was a guarantee that he'd be dead in x months. It is incorrect to state that the hospital is liable if, and only if, it states "you'll be definitely be dead in x months".

A statement of opinion of the kind relied upon by the lucky/unlucky guy contains, at least, two statements of fact:

(i) The hospital has SOME basis for this prognosis;

and

(ii) This prognosis has been made with reasonable care and skill.

It is the latter which the hospital is assuming responsibility for, not that he'll definitely be dead at a certain point. On the latter see Esso Petroleum Ltd v Mardon [1976] QB 801, in particular Lord Denning. It is the latter that the lucky/unlucky guy relies upon. That is why his complaint is that they have been negligent, not just that he relied upon an undertaking made by the hospital.

The statement that they have exercised reasonable care and skill in reaching the prognosis is not just a statement of opinion.

The bank in Hedley Byrne were not guaranteeing that their customer was creditworthy either.

In order to avoid the imposition of liability, you need to show that the duty assumed did not cover this loss. This must be either be done explicitly (through a disclaimer) or be shown to be implicit (as Andrew argues).

RS

<<<< Previous Message  ~  Index  ~  Next Message >>>>>