Hyde & Associates Ltd v Williams & Co Ltd [2000] EWCA Civ 211

EWCA-Civ

Hyde & Associates Ltd v Williams & Co Ltd

[2000] EWCA Civ 211 · 2000-07-06

Case No: QBENF 98/1650 CMS1 IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM QUEEN'S BENCH DIVISION Royal Courts of Justice Strand, London, WC2A 2LL Date: 6th July 2000

Before : LORD JUSTICE NOURSE LORD JUSTICE WARD and LORD JUSTICE SEDLEY - - - - - - - - - - - - - - - - - - - - -

Michael Hyde & Associates Ltd.

Appellant

- and -

J.D. Williams & Co. Ltd.

Respondent

-

- - - - - - - - - - - - - - - - - - - - (Transcript of the Handed Down Judgment of Smith Bernal Reporting Limited, 180 Fleet Street London EC4A 2HD Tel No: 0171 421 4040, Fax No: 0171 831 8838 Official Shorthand Writers to the Court) - - - - - - - - - - - - - - - - - - - - -

The Judge's Conclusions on the Proper Approach to the Experts' Evidence.

He held:- "20 I read these authorities as preventing a judge from deciding between two logically based expert opinions, when he (the judge) obviously has no expertise in the field of those experts and, therefore, no proper basis on which to judge which opinion is to be regarded as preferable ... (Lord Browne-Wilkinson) plainly did not preclude a logically based attack, presented in such a way that the judge can understand it, from effectively challenging an otherwise respectable opinion. 21 Where the issue, as to whether a professional man has been negligent or not, does not of itself require any particular expertise in, for example, the field of architectural practice, I do not read the authorities as prohibiting the judge from deciding that issue, notwithstanding the fact that two architects have given evidence that each would have approached the matter in question in a different way. In my judgment, that is the situation which faces me. Undoubtedly, if Warrington had considered that there was a risk of discoloration which merited further investigation, he would have taken appropriate steps to bring that to the attention of JDW via Fowler and to have investigated further. It seems to me that I have to judge Warrington's state of mind, in particular, on 24th November 1989 on the rather simpler basis of what, if any further, thought he should have given to the matter of discoloration, rather than by applying views of architectural practice to that situation." The Judge's Conclusions on the matter of Negligence. He held:- "28 ... it seems to me that the question for me to decide is whether, as a matter of fact and regardless of what might or might not be accepted practice among some architects, Warrington was right to do nothing further about investigating the risk of discoloration. His duty to investigate the risk, once he was made aware of it, was plainly accepted by him in that he thought it necessary to discuss it with Higginson and then to refer it back to JDW through Fowler. In these simple circumstances, was Warrington negligent in discounting the risk? I do not have any difficulty in considering the factors which help me to decide this question. These factors, in my judgment, are not peculiar to architectural or engineering practice. It was a matter of weighing risk against benefits: the risk was a known risk of some form of discoloration on materials; the potential effect of any form of discoloration on garments which were going to be kept in the distribution centre was obviously a matter of great concern, even without the gift of hindsight; this had to be weighed against the benefits of lower cost and a more flexible heating system. Plainly, Warrington did not have to be aware of the precise risk of phenolic yellowing. I do not have any difficulty in being able to judge Warrington's acceptance of the Higginson reassurance. In the event, I do not find it necessary to hold that the views of Mr Byrom have no logical basis, because my decision rests on my own view of Warrington's failure to investigate the risk of discoloration further and not those of the experts. However, if pressed, I should have had to say that I preferred Mr Barnard's evidence to that of Mr Byrom. 29 In my judgment, Warrington did not rely on such research as had been carried out in the previous summer, because otherwise he would not have been concerned with the potential risk any further. Rather, he may well have been influenced by Fowler's own state of knowledge and view of that risk which had been communicated to him by Higginson. Thus, as I find, Warrington did not rely on the exchanges between Higginson and Fowler, but was equally influenced by that and his own similar exchange with Higginson and, as a result, took the matter no further. In my judgment, at this stage he did rely on Higginson's reassurance. I find that Warrington, as an independent adviser, should not have accepted Higginson's authority to speak as an independent technical expert on the risk of discoloration; that Warrington did not question that expertise; that, had he queried either his expertise or the reason for maintaining the disclaimer, Higginson would have referred the matter to its Scientific Services Department; that had this stage been reached, almost certainly Warrington would have advised JDW that the risk needed to be investigated further. In essence, Warrington was wrong to be reassured about the risk so long as British Gas insisted on maintaining its disclaimer. I agree that was a "red beacon" which he failed to heed. 30. I have a lot of sympathy for Warrington who was managing a complex commission with many and varied facets of which the heating was but one relatively small part: in a sense he fell into the same trap as Fowler in placing too much reliance on the commercial advice of Higginson - I can well understand how that came about. The vital distinction, however, between Fowler and Warrington is that the latter's firm by the 24 November 1989 was under a duty to advise JDW as what would be a suitable heating system. Warrington, in the ultimate analysis, was negligent in discounting the risk of discoloration and, therefore, not setting in motion a trail of investigation." The Judge's Supplemental Judgment. A year after handing down his judgment, the judge was referred to Flannery v Halifax Estate Agencies Ltd .

[2000] 1 WLR 377

and was invited to provide reasons in amplification of why he did not find it necessary to hold that the views of Mr Byrom had no logical basis. He agreed to supplement his judgment in order to avoid the unnecessary expense of a retrial in the event that the appeal turned on the absence of reasons for preferring one expert's evidence to another's. I can understand that reasoning and have a good deal of sympathy with that pragmatic approach. I also accept without question that the judge recognised "that it cannot be my task to engage in a reconstruction of my judgment", that he did not do so, and that he had a clear memory of the case. Nevertheless, I am of the view that the judge should not have been put in that embarrassing position and that once a judgment has been approved, then it must stand or fall as it is, warts and all. Going back to the judge for clarification is a step I would strongly discourage. For what it is worth, the judge in the supplementary reasons added only that if it was not clear, he considered Mr Barnard's reference to the "red beacon" "to represent sound common sense" and that Mr Byrom's view that it was up to Mr Fowler to make further enquiries of British Gas was "indeed fatally flawed". For my part I would have inferred from the original judgment that those were the judge's views. The Appeal on the Negligence Issue. Mr Grime made in essence two principal submissions:-(1) His first was that the judge erred in law in that to have ignored Mr Byrom's opinion was to have failed properly to apply the Bolam test.

(2) Even if his approach was defensible, his conclusion on the facts was wrong. Dealing firstly with the Bolam argument, Mr Grime submits that in deciding that no further investigation of the risk of discoloration was necessary, Mr Warrington was in the circumstances of the case exercising professional judgment and that in the light of Mr Byrom's endorsement of his actions, it cannot be said that any error of judgment was negligent. If the Bolam test does apply, then there is considerable force in his argument. As Lord Scarman said in Maynard at p.639:- "I have to say that the judge's "preference" for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence in a practitioner whose action have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred. If this was the real reason for the judge's finding, he erred in law even though elsewhere in his judgment he stated the law correctly. For in the realm of diagnosis and treatment negligence is not established by preferring one respectable body of opinion to another. The failure to exercise the ordinary skill of a doctor( in the appropriate speciality, if he be a specialist) is necessary." The crucial question to my mind is whether Bolam applies at all. In Bolam itself McNair J. at [1957] 1 W.L.R. 582, 586-7 was directing the jury as to "what in law we mean by `negligence' ". He drew the distinction between, on the one hand, "the ordinary case which does not involve any special skill" and, on the other hand, the "situation which involves the use of some special skill or competence". In the former case negligence is judged by "the conduct of the man on the top of a Clapham omnibus". In the latter case, "the test is the standard of the ordinary skilled man exercising and professing to have that special skill". Thus he went on, famously, to direct the jury as follows:- "I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art ... Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take the contrary view." In setting this as a guide to finding negligence, the test is really one which will assist in deciding whether there has been a breach of duty i.e. a failure to meet the requisite standard of care. The standard itself it set by the court, not by the profession concerned. As a statement of the standard of professional care, I can do no better than repeat Bingham L.J.'s judgment - even though he dissented on the facts - in Eckersley v Binnie & Partners (1988) 18 Con.L.R. 1, 80:- "From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinarily assiduous and intelligent members of his profession in knowledge of new advances, discoveries and developments in his field. He should have such awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skills. He should be alert to the hazards and risks inherent in any profession or task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonably average. The law does not require of a professional man that he be a paragon, combining the qualities of polymath and prophet." Bolam has been universally adopted as a test of professional negligence. Thus Lord Diplock said in Saif Ali v Sydney Mitchell & Co.

[1980] AC 198

, 220:- "No matter what profession it may be, the common law does not impose on those who practice it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no reasonably well-informed and competent member of that profession could have made." That test has been held by this court to apply to architects: see Nye Saunders & Partners v Alan E. Bristow (1987) 37 B.L.R. 92. The question is, however, in what circumstances should one apply the test? There are qualifications to it as follows. 1. One such qualification is provided by Bolitho as quoted above, namely:- "But if, in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible." 2. Another is referred to in Nye Saunders where Stephen Brown L.J. held:- "(The judge) was entitled to take the view that the evidence of (the architects' experts) did not constitute evidence of a responsible body of architects accepting as a proper practice that no warning of inflation need be given when providing an estimate of the cost of proposed works. It seems to me that the learned judge had ample evidence before him which entitled him to find that there was a failure on the part of Mr Nye to draw the attention of the client to the fact that inflation was a factor which should be taken into account when considering the ultimate cost and that that failure constituted a breach of the Hedley Byrne type duty to the defendant." 3. The third qualification is expressed by Lloyd L.J. in Gold v Haringey Health Authority [1988] 1 Q.B. 481, 490:- "If the giving of contraceptive advice required no special skill, then I could see an argument that the Bolam test should not apply." In the case before us the judge expressly declined to discount Mr Byrom's opinion as logically flawed although he went some way in his supplementary judgment to showing how he could have done so. He did not find, as in Nye Saunders , that the evidence he received amounted to no more than an expression of personal opinion as to what the witness would or would not have done, thereby falling short of being evidence of a responsible body of architects, or a recognised practice within the profession. He may well have been able to discount the evidence on that basis for I find little to suggest that there were two recognised but contrary views of an accepted practice governing the decision in question. As I read the evidence the experts were doing no more than putting themselves forward as reasonably competent architects and then saying what they would have done in the circumstances in which Mr Warrington found himself. In my judgment this case could well have been decided and disposed of by adoption of Oliver J.'s views in Midland Bank Trust Co. Ltd. v Hett Stubbs & Kemp (a firm)

[1979] Ch. 384

, 402:- "Clearly, if there is some practice in a profession, some accepted standard of conduct which is laid down by a professional institute or sanctioned by common usage, evidence of that can and ought to be received. But evidence which really amounts to no more than an expression of opinion by a particular practitioner of what he thinks that he would have done had he been placed, hypothetically and without the benefit of hindsight, in the position of the defendants, is of little assistance to the court ..." Had the judge followed that course it would have been very difficult to criticise him for it. As I understand his judgment, the judge followed the third route. He found in paragraph 21 that the exercise of judgment involved in deciding whether further investigation of the risk of discoloration was required or not did not of itself require any special architectural skills. He was entitled to come to that conclusion. Contrary to Mr Grime's submission, the judge did not have to get "under the skin of a different profession" to assess what warning lights shone from the British Gas disclaimer. He was entitled to judge that for himself and he made no error of law in doing so. I reject this first ground of appeal accordingly. Turning to the facts, I again see considerable force in Mr Grime's submissions. He listed ten features of the case:- 1. These architects and architects in general had no knowledge of the phenomenon of phenolic yellowing. 2. They were dealing with a client who handled a vast volume of goods which could be affected by the phenomenon but the client was also ignorant of it. 3. Mr Warrington was dealing with Mr Fowler who was himself an engineer experienced in that skill and experienced in the textile industry, having previously worked in a similar capacity for Littlewoods Mail Order Group. 4. The claimant had in the previous summer made its own investigations and done whatever research it thought was necessary into the form of heating. 5. As a result it chose a direct fired system and there was nothing in the extension of the refurbishment to cover the second mill which changed the risks. If anything the benefits were greater. 6. British Gas was a company with huge resources behind it, a high reputation and no axe to grind, offering both direct and indirect systems. 7. Mr Higginson himself did not believe that there was a serious risk and said so. 8. The disclaimer was not significant in the light of the fact that it was a standard provision and that, at least at a later time, the system was acquired without a disclaimer. 9. The manufacturer's literature stressed the cleanliness and safety of the equipment. 10. The appliance complied with British Standards. Mr Grime makes the powerful point that what Mr Higginson conveyed both to Mr Fowler and Mr Warrington was not that there was a risk but, on the contrary, that there was not a serious risk. His knowledge of discoloration was limited to use of foam and the use of a much more primitive system. Mr Grime points out that the disclaimer was not ignored: on the contrary it was seen as a red beacon and for that reason Mr Higginson was pressed to explain why it was included. He submits that the architect, having properly sought an explanation from British Gas, a highly reputable body, sufficiently discharged his duty by raising the facts with the client, jointly assessing the risks as negligible and the benefits as great, and jointly taking the decision to proceed. These are very powerful submissions. I would not have been surprised if the judge had concluded that the architect was not negligent. I may well have done so had I been the trial judge. It seems to me , however, that ultimately the finding was one of fact and in my judgment the judge was entitled to come to the conclusion he did. For my part I would not be prepared to find that his finding of the facts was so plainly wrong that this court is entitled to interfere. There was evidence before him, which he accepted, that the circumstances did call for further investigation and at least for advice that there was a risk which had not been assessed. Not without hesitation, I would dismiss this ground of appeal also. The Second Main Issue: Causation. The judge dealt with this question as follows:- "31 If Warrington had not been content with the Higginson reassurance, what action could he have taken? He could have sought the advice of a specialist heating engineer with experience of the textile industry. Had he done so, the chances of such a specialist either having knowledge of phenolic yellowing or having access to the kind of research that would lead to such knowledge seem to me on the evidence to have been low. 32 Warrington's course of action, in these circumstances, would probably have involved a return to Higginson with a request that he investigate the risk further. The question is whether an enquiry of the Scientific Services Department would have kept the trail alive until an organisation such as BTTG was reached. 33 It seems to me that the chances were that the Scientific Services Department would have pointed Warrington or any specialist whom he chose to instruct to a university department or a similar organisation. I base this view on the simple premise that they probably had information relating to the discoloration of materials caused by oxides of nitrogen. I have considered Dr Bailey's agreed fax of 14 July 1998 in which he gives the results of various searches using various keywords. It is, of course, possible that either Warrington, British Gas' Scientific Services Department or a specialist instructed by MHA would have given up his or their search on meeting with such lack of success. By the same token, it is possible that the trail would have gone cold before any information materialised which would have deterred JDW from going ahead with the direct fired system. My judgment, however, is that the chances were more in favour of a proper investigation revealing that the risk of garments being discoloured in some way by a direct gas fired heating system was not worth taking. In any event, in my view, JDW by reason of MHA's failure to investigate the risk further were deprived of reaching an informed decision on a suitable heating system." The Appeal on the Causation Issue. Mr Grime submits there is no evidence to support the judge's conclusion. The negligence consisted "in discounting the risk of discoloration and, therefore, not setting in motion a trail of investigation. The causation issue as it was posed in paragraph 3 of the judgment was "whether such (further) investigation would in fact have uncovered an unacceptable risk of discoloration of textiles". The first question is what ought to have been done to investigate the risk. The judge found in paragraph 21 of his judgment that if Mr Warrington had considered that there was a risk which merited further investigation, he would have taken appropriate steps to bring that to the attention of JDW via Fowler and to have investigated further. But how would he have conducted that investigation? The judge's view was that he would have gone back to Mr Higginson and requested British Gas to investigate the risk further. For my part I am far from certain that would have happened. Assuming, for the purpose of this argument, that Mr Warrington had gone back to Mr Higginson then Mr Higginson said in paragraph 33 of his witness statement:- "Had he asked me to advise as to the risk of discoloration I would almost certainly have referred him to our Scientific Services Department". But what then? The judge's conclusion was:- "... the chances were that the Scientific Services Department would have pointed Warrington ... to a university department or similar organisation. I base this view on the simple premise that they probably had information relating to the discoloration of materials caused by oxides of nitrogen". This passage is open to the criticism that the judge is treating causation as a matter of chance rather than a matter of fact to be found on a balance of probabilities. Be that as it may, the more pertinent criticism is that there was no evidence to support the premise upon which the judge proceeded. As for the Scientific Services Department's actual involvement, all the evidence reveals is that Mr Higginson said (transcript 20th July p. 9-10):- "Q. And when you say that you discussed the reasons why the disclaimer was there, what did you say to Mr Warrington, what explanation did you give him as to why the disclaimer was there? A. Well again, it's not exactly recollection, but I would have expected, I would have said, British Gas at some time previously had experienced a problem with a foam manufacturer, where discoloration of the foam had taken place, and we were just generally wary about direct fired in any atmosphere where materials, fabrics, may be contained. But we had only ever experienced a problem with foam. Q. Right. If you had only ever experienced a problem with foam, why was the disclaimer extended, as you already explained to His Honour, to fabrics and other materials? A. I think I was just generally wary about any potential problems with the fabric. I certainly did not understand the problem at the time. British Gas, as far as I am aware, didn't commission any investigations into the problem . It was just general guidance to be wary of a direct-fire in an atmosphere that may have contained fabrics". I have emphasised that passage. If there was no investigation into the problem there is not much to support the premise that discoloration of fabrics was caused by oxides of nitrogen. There is no knowing what information the department had about this arcane phenomenon phenolic yellowing or as to the cause of the discoloration of the foam and what information it had which led it to be wary of discoloration of fabrics. There was no evidence of direct involvement of the department in the problems which related to the provision of this particular heating system. It was to have been supplied by PC Rapid. They endeavoured to persuade Mr Higginson not to include the disclaimer in the British Gas quotation. PC Rapid wrote to British Gas to confirm that none of their customers had experienced that problem even "in sensitive areas which might be prone to discoloration". Asked about that Mr Higginson said (transcript p. 24):- "Q. Is the reason you didn't run the thing passed your Technical Services people that you were quite happy with what PC Rapid said and were prepared to rely on it yourself? A. Yes, I was fairly happy with what they were putting forward. I didn't really believe there would be a problem." The matter not having been referred to the Scientific Services Department then, there is simply no knowing what information they had relating to discoloration caused by the nitrous oxides produced by the direct fired gas heating system. The only basis for the judge's conclusion that the chances were that that department would have pointed Warrington to a university department or similar organisation appears to me to have been this taken from page 7 of the transcript of Mr Higginson's evidence:- "Q. Did you, in your discussions with Mr Fowler, ever advise him that there was a risk of discoloration, but that it was not a serious risk? A. I don't recall precisely, but, yes, I would have said, probably, that there was a risk but not a serious one. Q. Right. Did Mr Fowler ever ask you to further investigate and advise about the question of discoloration? A. No. Q. If he had, what steps would you have taken? A. At the time we had an in-house scientific service. I would have referred it to them, and they could have possibly commissioned an external report. ... Q. Right. You say that the experts within British Gas would themselves have gone to an external expert? A. I couldn't have said what they would have done , but I don't really think - this is quite a specialised subject - I don't think really they would have been experienced at something such as this , so I would assume they might have sought external advice." Again I add the emphasis. This is the flimsiest of foundations upon which to rest a finding of fact to be made on a balance of probability that the trail of investigation would have revealed the true extent of the risks. In my judgment the balance of probabilities points the other way. One cannot overlook how arcane a subject phenolic yellowing is. The evidence was that it was not well-known in the textile industry. It was not known to the claimants nor to Mr Fowler who had experience with Littlewoods. It was unknown to architects and to heating engineers. If Mr Warrington had been doubtful about the proposed direct fired heating system, he was, in my judgment, more likely to make further enquiries of specialist heating engineers than of British Gas. As the judge found, the chances of such a specialist having relevant knowledge was `low'. If it was low it was against the balance of probability. So the balance of probability, not just, as the judge held, the possibility , is that the trail would indeed have gone cold. If so that is an end of the matter. That conclusion obviates the need to consider the hypothetical matters of how the claimant would have reacted to the delays and the need for further investigation given their increasing urgency for decision and their own preference for this system. We do not need to enter Allied Maples Group Ltd. v Simmons and Simmons [1995] 1 W.L.R.672 territory and assess chances. My conclusion is that there was no evidence to support the judge's findings which could only have been based upon speculation. The claimant could not establish that the further investigation would in fact have uncovered an unacceptable risk of discoloration. The claim should have been dismissed on the causation issue. I would allow the appeal accordingly. Lord Justice Sedley: I agree with Lord Justice Ward that this appeal fails in relation to negligence but succeeds in relation to causation. This judgment is confined to the question whether there is room in a case such as the present for a Bolam -type test of architect's negligence. The present case, in summary, concerns the failure of an architect to be alerted, and in turn to alert the client, by reason of a supplier's disclaimer of liability for damage which, though otherwise unforeseeable, eventuated. McNair J's charge to a civil jury in Bolam v Friern Hospital Management Committee

[1957] 1 WLR 583

is the source of a test of medical competence now adopted by the House of Lords in Bolitho v City and Hackney Health Authority

[1998] AC 232

: a doctor "is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art."

It follows, in Mr Grime's submission, that acceptable evidence called by the architect to the effect that other responsible members of his profession would have acted no differently concludes a negligence action in his favour.

Mr Grime relies principally on the decision of this court in Nye Saunders and Partners v Alan E Bristow

(1987) 37 BLR 92

. There an architect had failed to include in his estimate of building costs an allowance for inflation. His action for fees was defeated by a defence that the consideration had failed by reason of negligence. Stephen Brown LJ, giving the single reasoned judgment, said:

"The duty and standard of care to be expected from [the architect] was accepted as being that which aplied to any profession or calling which required special skill, knowledge or experience. The test is that formulated in a medical negligence case, Bolam. Where there is a conflict as to whether he has discharged that duty, the courts approach the matter upon the basis of considering whether there was evidence that at the time a responsible body of architects would have taken the view that the way in which the subject of enquiry had carried out his duties was an appropriate way of carrying out the duty, and would not hold him guilty of negligence merely because there was a body of competent medical opinion which held that he was at fault."

It is important, however, to see how the case was then decided. The architect had called a distinguished member of his profession to say that it was not common practice at the relevant time to provide for inflation. But when asked about drawing the client's attention to the fact that the price was only the current price, the witness had replied:

"Of course that, I should have thought, would have been the prudent thing to do."

Upholding the judge's conclusion that no responsible body of architects thought that a warning about inflation was unnecessary (not an obvious finding in the face of the professional evidence), Stephen Brown LJ said:

"He was entitled to take the view that the evidence of [the experts called for the architect] did not constitute evidence of a responsible body of architects accepting as a proper practice that no warning of inflation need be given when providing an estimate of the cost of proposed works. It seems to me that the learned judge had ample evidence before him which entitled him to find that there was a failure on the part of [the architect] to draw the attention of the client to the fact that inflation was a factor ...and that that failure constituted a breach of the Hedley Byrne type duty to the [client]." It can be readily seen that this reasoning does not in the event depend or indeed draw upon Bolam : it derives from the duty which the law itself exacts in relationships of the kind before the court. Had the Bolam standard been applied, the expert's evidence of common practice - which was not itself disbelieved - would have been enough to protect the architect. It could not even have been undermined by the admission that it would have been prudent to do otherwise. What led this court to uphold the decision below was that it found a straightforward breach of duty. This is not to say that the Bolam test is restricted to medical decisions. Plainly it is not. Lloyd LJ said as much, and explained why it was so, in Gold v Haringey Health Authority

[1988] QB 481

, 489. He cited what Lord Diplock said in Saif Ali v Sydney Mitchell and Co.

[1980] AC 198

, 220:

"No matter what profession it may be, the common law does not impose on those who practise it any liability for damage resulting from what in the result turn out to have been errors of judgment, unless the error was such as no reasonably well-informed and competent member of that profession could have made."

Equally plainly, however, it is not to every allegation of negligence that this test can be appropriately applied. If it were, the civil equivalent of the so-called Guinness defence would become a regular feature of negligence litigation. What then is the dividing line? It seems to me that both tests are aspects of a single principle. The principle, broadly put, is that professional negligence means falling below a proper standard of competence (see Jackson and Powell, Professional Negligence, 4 th ed, 1997, para. 1-04) . In most cases the court will arrive, commonly with the help of evidence from the particular profession, at its own judgment of what that standard is. But in many (not all) cases where the profession itself embraces more than one tenable view of acceptable practice, competence will not be measurable by a single forensically determined standard; so that where there is more than one acceptable standard, competence has to be gauged by the lower or lowest of them. In such cases it is the principle itself which requires the adoption of a Bolam -type test. To do otherwise would allow the law to dictate the pace and parameters of change in professions of which lawyers may know little or nothing. But to extend the Bolam principle to all allegations of professional negligence would be to make the professions, to an extent large enough to accommodate much harm to the public, judges in their own cause.

It may not be feasible, and it would certainly be unwise, to try to draw a bright line between the two applications of the principle otherwise than case by case. Nye Saunders , despite the concession that it was governed by the Bolam test, was manifestly an exercise in standard-setting by the court itself and should be so regarded. But in general it can be said that the Bolam test is typically appropriate where the neglect is said to lie in a conscious choice of available courses made by a trained professional, and that it is typically inappropriate where it is in an oversight that the neglect is said to lie. This is not least because it is likely to be much easier to characterise the former than the latter as errors of judgment. In the present case the court is asked to say that the expert evidence called by the defendant concludes the case in his favour, since it establishes the existence of a respectable school of practice which would have done as he did. That the judge preferred an opposing school is, it is argued, nothing to the point. Although my reason for rejecting this argument is not quite that of the judge - who based himself on whether the court needed expert help at all - my conclusion is the same as his: the defendant overlooked a risk which he ought to have brought to the claimants' attention and which later proved real. This involves no inquiry into competing schools of professional practice: it requires the court to decide, with whatever help the expert evidence affords, whether a competent architect could have overlooked the implications of the disclaimer. The judge answered the question, as I would, in the negative. Lord Justice Nourse : I agree.

Order

Appeal Allowed. Judge's order discharged and judgment for defendant in respect of heating installation claim. Appellant shall have all its costs except that it will only have two-thirds of the costs in the appeal. Leave to appeal to the House of Lords refused. (Order does not form part of the approved judgment.)

Cited in 1 later judgment

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