Date: Fri, 11 May 2007 17:30

From: Duncan Sheehan

Subject: Good news/bad news

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.

And that is making more of my position than I intended. I increasingly think we're arguing over nothing; we're all agreed that there is no guarantee of accuracy, that at best this is a statement that I think you're going to die, and I've been really careful in working that out, but I might still be wrong. Only a really foolish doctor would make a 100% guarantee. It is not an MR that it is a guaranteed fact that I will die next week, which is the rather uninteresting assertion I started with. (Incidentally Adam's solution to what I understood by Robert's interesting problem was so simple I dismissed it. I guess some problems have simple solutions, and/or I misunderstood the question.) Characterising it as a statement of opinion therefore is either

1. Given that a duty of care encompasses the case, an implied disclaimer of liability

2. A refusal to assume responsibility for my actions in reliance, leading to no duty in the first place (more plausibly).

Saying "I think" does have an effect though. The question then is refuse responsibility for what - the answer to that may be everything (or not.) I suspect we're in the end all using different vocabulary to say the same thing.

Duncan

Dr Duncan Sheehan
Senior Lecturer in Law
Director of Research
Norwich Law School
University of East Anglia
Norwich NR4 7TJ
United Kingdom

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