Date: Fri, 11 May 2007 15:16

From: Allan Beever

Subject: Good news/bad news

Michael wrote:

When doctors come up with a prognosis involving an estimate of life expectancy, no-one (not even the most naive patient) could think that it was anything more than an estimate. On the other hand, if the doctor's estimate was 6 months and the patient lived for 20 years, we could reasonably conclude that the doctor got it seriously wrong, though whether it was negligently wrong would depend on more than just the outcome itself.

Sure, but (for Robert and I at least) the question is whether there would, in these circumstances, be an assumption of responsibility by the doctor to the patient that gave the patient a right to rely on the prognosis. I can’t see this.

As for Robert’s comparison with Hedley Byrne, in my view there are important differences between Hedley Byrne and this case. First, in Hedley Byrne the defendants were asked to prepare their report so that the claimant could rely in the way that it did. It was in response to that request that the defendant produced the report. Were it not for the disclaimer, it would be clear that the defendant gave the claimant a right to rely in those circumstances. I don’t think that this is even remotely plausible in the doctor case, though of course much depends on what the doctor actually said. But given the way in which doctors normally issue prognoses, I can't see this reading as plausible. Imagine that the doctor said: “In the light of the information that we have, I would expect you to live no more than x months”. I can’t see this as giving the patient a right to rely on this, so that he is entitled to spend all his money at no risk to himself, no matter how negligent the doctor was in preparing the prognosis. If, on the other hand, the patient had said, “How long do I have to live because I thinking of spending all my money …” then we would have a Hedley Byrne type situation. Ditto with respect to Esso.

Second, there is a great deal of difference between looking at a company's bank accounts and concluding that it is "good for ordinary business" and examining a person to determine a prognosis. This must affect the scope of any possible assumption of responsibility.

All the best
Allan

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