Date: Fri, 11 May 2007 15:50

From: Robert Stevens

Subject: Good news/bad news

I reply because it goes to the root of the disagreement I think.

Michael wrote:

On the other hand, I don't think (again, no guarantees) that disclaimers are the solution. For me, the real issue is the nature (or scope, or extent) of the doctor's duty. I'm not a fan of assumption of responsibility [there are almost no criteria for deciding when it does or does not apply; and in any event tort duties are imposed not "assumed" by the defendant - there are by now plenty of judicial dicta indicating that defendants are "deemed" to have assumed responsibility, which is just another way of saying "In all the circumstances we consider that you are responsible", which is no different from what the HL did in Donoghue v Stevenson].

I disagree with the above. Finding an assumption of responsibility is no more artificial than finding any other kind of promise implied by conduct. We do this in contract every day. The only reason there is no contract is the absence of consideration (hence John Swan's thinking we were talking contract: we would be in Canada.)

In some cases (White v Jones) the assumption of responsibility is said to be 'deemed'. This is most unfortunate as there it clearly has no explanatory force. But we must not go from the proposition "assumption of responsibility cannot explain every case" to the proposition "therefore it cannot explain any case". As I have said, without 'assumption of responsibility' the result in Hedley Byrne is inexplicable as there would be no adequate explanation as to why the disclaimer was effective.

Since no-one has (yet) dissented from the proposition that where a false positive diagnosis induces depression and results in suicide the doctor should be liable for the foreseeable consequences, the only difference between this and the good news/bad news patient is the nature of the loss (purely financial).

No. The difference is in the nature of the right. I have a right to bodily safety against you and everyone else. If you tried disclaiming that by putting a neon sign on your car saying so, that would not avail you. What I do not have is a general right good against everyone else not to suffer economic loss. To tie this thread into the other one going on, this point was reasserted by the House of Lords in OBG v Allan. If I claim for economic loss it must be consequential upon another right. Where the right arises from an assumption of responsibility the scope of the undertaking must be ascertained. That is what Andrew was arguing about.

We might legitimately want to protect the health service from claims in respect of pure economic loss, but if that is the case, then I think we should be up front about the policy judgment, rather than scrambling about in the thickets of disclaimers and assumptions of responsibility.

Unless we try to obtain the answer using legal doctrine I have no idea what the answer might be as a matter of policy, and nor does a judge. Should NHS funds be spent on reimbursing the lucky/unlucky guy? Would the good consequences of this (encouraging staff to be careful, assuaging the aggrieved patient, shutting up the Daily Mail) outweigh the bad (less money to spend on cleaning wards)? I have absolutely no idea. Opening up the box marked 'policy' takes us away from answering very difficult legal questions into answering impossible questions. The policy questions cannot be answered definitively because of the incommensurable goods involved. The mess the law of England has got itself into in the context of the liability of public bodies shows why being 'open and honest' about the policies involved leads to chaos.

As to Allan's final position, it seems to me that he is talking about the scope of the duty doctors assume to their patients, and is adopting the same position as Andrew Tettenborn. I never dissented from Andrew's position, I just think you can make the scope of the duty assumed express. Andrew's view is certainly more tenable than trying to argue that there is no misrepresentation made, just a statement of opinion.

RS

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