G RATIAE N J.—Chiaael v. Chapman
1954Present: Gratiaen J. and Fernando A. J.DR. P. J. CHISSEL, Appellant, and R. C. CHAPMAN,Respondent
S. C. 484—D. O. Colombo, 21,987M
Delict—.i cl ion far “ injurious falsehood"—Dolus or animus injuriandi is necessary
ingredient—Negligence—Incidence of liability—Duty of care.
If A, in disc)Large of a contractual obligation which he owes to B, makes to Ba negligent but honest and non-defamatory statement in relation to a thirdparty C, A is not liable to C for pocuniary loss sustained by him in consequenceof the statement.
Cable and Wireless Ltd. employed the defendant, who was a medical practi-tioner, to examine the plaintiff and report whether the plaintiff, who had beenaccepted for service as a telegraphist-apprentice, wus physically fit for permanentemployment as a telegraphist. Defendant examined the plaintiff, but reportedthat ho was unable to recommend him for service with the Company. As a directconsequence of this report, the plaintiff’s engagement as an apprentice wasabruptly hut lawfully terminated by the Company. Plaintiff then institutedthe present action claiming damages from the defendant. He alleged that hewas perfectly fit for employment as telegraphist in Cable and Wireless Ltd.,and that the defendant’s unfavourable report was “ due to gross negligenceand/or incompetence ”. He made no allegation that the defendant had actedmaliciously or dishonestly in the matter.
Held, that the action was not maintainable, even if the defendant’s medicalopinion concerning the plaintiff’s suitability to undertake the duties of u0 telegraphist had been negligently arrived at.
Held further, that in regard to the question of negligence tho law did notimpose any duty of care on the defendant towards the plaintiff, other than theduty not to cause liim physical injury.
Conflicting medical evidence discussed.
j^LpPEAL from a judgment of the District Court, Colombo.
//. V. Perera, Q.C., with S. J. Kadirgamar and B. S. C. Ratwatte,for the defendant appellant.
E. G. Wikramanayake, Q.C., with H. IK. Jayewardene and P. Ranasinghe,for tho plaintiff respondent.
Cur. adv. vult.
June 25, 1054. Gratiaen J.—
The defendant is a qualified doctor, possessing the degrees of F.R.C.S.(Edinburgh), M.R.C.S. (England) and L.R.C.P. (England). He haspractised his profession continuously in Ceylon since 1910 except duringa period when lie served overseas in World War I.
-J W. H m77ft-10KS<H»U;
GRATIAEN J.—Ohisael v. Chapman
On 22nd April, 1949, the plaintiff, then 18 years of age, was acceptedfor service as a telegraphist apprentice in the Colombo branch of Cable <feWireless, Ltd., Subject to the terms of a written agreement which pro-vided inter alia that his physical fitness must be certified by the Company’sown medical officer, whoso decision was to be accepted as final. Twosenior executive officers gave evidence at the trial for the plaintiff.One of them explained that this certificate was an essential conditionof membership of the Company’s Pension Fund ; tho other pointed outthat, in addition, the exacting nature of a telegraphist’s duties calledfor a high degreo of physical and mental efficiency. The defendant hadbeen the Company’s medical officer for over 30 years, and was speciallyconversant with the standard of physical fitness required.
On 14th July, 1949, tho plaintiff presented himself at tho defendant'sconsulting room for his medical examination, which the defendantduly carried out in fulfilment of his own contractual obligation to thoCompany. It will be necessary to discuss at a later stage the precisenature of the legal duties which the situation imposed on him towardsthe examinee himself.
After a detailed clinical examination, the defendant sent a confidentialreport P5 to tho Company to the effect that, although the plaintiffsatisfied the requisite standard of health in other respects, his employ-ment was not recommended because :
“ There is a very forcible impulse over tho cardiac area. Theheart is enlarged, the apex being outside the nipple area. Thereare no murmurs. Pulse rate was 108 per minute and the blood pressurewas S 154 and D 70 ; at the second reading the S was 144. Applicantis an athlete which I think accounts for his hypertrophied heart. /am unable to recommend him for service with Cable Wireless, Ltd.”
As a direct consequence of this report, the plaintiff’s engagement as anapprentice was abruptly but lawfully terminated by the Company on18th July, 1949, and he was unable to secure other employment forapproximately six months. He has continuously thereafter been engagedin the service of the Bank of Ceylon, but there is no precise evidenceupon which (on the issue as to damages) the Court could accuratelycompare his financial prospects in his new employment with those of atelegraphist in the firm of Cable & Wireless, Ltd.
The’plaintiff’s mother, Mrs. Chapman, was naturally distressed by theevents which had taken place, and she arranged for the lad to be examinedclinically at her own expense on 18th July, 1949, by Dr. F. J. T. Foenandcr(another well known practitioner in Colombo). Dr. Foenander certifiedthat in his opinion “ there was no evidence of functional or organicdisorder of tho heart nor was there any enlargement On 22ndJuly, Dr. H. O. Gunawardene (a distinguished cardiologist) also issueda report to the effect that “ electrocardiagram and X-ray film of hisheart revealed no abnormality
These fresh opinions were brought to the notice of the Company’sbranch manager by Mrs. Chapman, and he fn turn communicated themto tho defendant who volunteered to examine the* plaintiff mire again
GRATIAEN J.—Ohissel v. Chapman
on 27th July, 1949. On this occasion, the hud's blood pressure wasrecorded at 150/70, and the defendant informed the manager orallythat he saw no reason to revise his earlier opinion as to the lad’s unfitnessfor service as a telegraphist. The Company therefore confirmed itsoriginal order of discontinuance.
These were the circumstances in which the plaintiff instituted thepresent action claiming damages from the defendant in a sum of Rs. 5,000.He alleged that he was perfectly fit for employment in Cable & Wireless,Ltd., and that the defendant’s unfavourable report P5 (received by theCompany on 15th July, 1949), was “ due to gross negligence and/orincompetence ”. The plaint makes no allegation that the defendanthad acted maliciously or dishonestly in the matter.
After the trial had very nearly been concluded, the (then) DistrictJudge of Colombo was appointed to other duties at very short notice.Fresh proceedings thereupon commenced de novo (at additional expenseto both parties) before the learned judge whose decision is now underappeal. He held that the report P5 was “ substantially incorrect ”,and that the defendant had been guilty of gross negligence. Thedefendant was ordered to pay to the plaintiff a sum of Rs. 5,000. In-cidentally, the award includes an unspecified sum by way of “ sentimentaldamages ” which are not recoverable in actions based on negligence.
The judgment has been criticised by Mr. Perera on a number of grounds.In particular, he submitted that the evidence was quite insufficient tojustify the conclusion that the defendant had acted negligently ; andthat in any event no liability attaches under the llomun-Dutch lawfor pecuniary loss sustained by a person in consequence of incorrectstatements (concerning him) made neyliyently hut honestly by thedefendant to someone else. The first of these submissions is, for obviousreasons, of special concern to the defendant who is jealous of his pro-fessional reputation. But the issue of law raised by Mr. Perera is ofwider importance, and calls for a definite answer by tliis Court as towhether or not the learned judge has extended beyond legitimate limitsthe incidence of liability for negligence under the general law ofCeylon. I
I shall first consider the question of law raised by Mr. Perera. Whatis the extent of a doctor’s duty towards a person whom he is required(under a contract with that person’s proposed employer) to examinefor the purpose of expressing a confidential medical opinion as to theexaminee’s fitness to undertake employment of a particular kind '( Thecontract certainly imposes on the doctor an obligation towards the proposedemployer to exercise reasonable care and skill, but in my opinion hisonly obligation towards the examinee (apart from the obvious duty not tocause him physical injury during the examination) is to express anopinion which is honest. In such a situation, there is no contractual,fiduciary or analogous relationship between (he doctor and the examineewhich makes the doctor liable to the examinee for pecuniary loss arisingfrom the communication of a negligent, lion-defamatory but honestopinion to the proposed employer.
GRATIAEN J.—Chissel v. Chapmen
Had the defendant made a defamatory statement to Cable & WirelessLtd. concerning the plaintiff, he would of course have been liable indamages (not restricted only to pecuniary loss) in an actio injuriarumfor defamation, provided that the plaintiff could have established expressmalice so as to defeat the plea of qualified privilege.
The lex Aquilia proper is concerned only with liability for acts whichcause physical injury to person or property through fraud or negligence ;but, in order to meet the more complex situations which arise undermodern conditions, the incidence of liability has also been extended tooases where dolus, as opposed to mere culpa (negligence), causes pecuniaryljss to the aggrieved party. So, in the present case, if the defendanthad, through some improper motive, expressed to Cable & Wireless, Ltd.,e irea a non-defamatory opinion (which he knew to be wrong) that thepiaintiff was physically unfit for service with the Company, he wouldwithout doubt have been liable to compensate the plaintiff for conse-quential pecuniary loss (though not, as the learned judge appears to haveassumed, for sentimental loss as well)—Van Zyl v. African Theatresl.The elements of this actionable wrong are precisely similar to the pre-requisites to an action “ on the case ” for injurious falsehood under theEnglish common law.
It thus appears that a person in the position of the plaintiff wouldnot have been denied a legal remedy if the doctor’s incorrect opinionconcerning him had been dishonestly expressed. The question is whetherthe law also protects him against the consequences of negligenceunaccompanied by an improper motive.
In taking the view that the situation imposed on the defendant notmerely an obligation towards the plaintiff to act honestly but also aduty to act without negligence, the learned judge purported to followthe ruling of Watermeyer J. in Perlman v. Zoutendyk2. That decision,however, was not concerned with a negligent false statement made byA to B concerning C, but with a valuation report negligently issuedby A (a professional valuator) to B knowing that it was intended to beused by B for the purpose of inducing C to act upon it. Watermeyer J.held that the absence of contractual privity between A and C did notpreclude C (i.e., the person deceived) from suing A for pecuniary losssustained in direct consequence of C (as intended and foreseen) havingacted on the faith of the negligent valuation.
The judgment in Perlman’s case (supra) proceeds on lines which beara very close resemblance to the views expressed by Denning L.J. (con-cerning the English common law in a similar situation) in his notabledissent in Candler v. Crane Christmas <b Co.3.
If and when a case arises in our Courts where damages for pecuniaryloss are claimed by a person who was actually deceived by another'snegligent misrepresentation, it will be necessary to decide whethe
* (1931) C. P. D. 61.* (1934) C. P. 11. 151.
(1951) 2 K. B. 164.
GBATIAEN J.—Chiasel v. Chapman
Perlman’s case should be followed in Ceylon. I observe that it has beencriticised on more than one occasion by judges and distinguished academiolawyers in S. Africa. In Alliance Building Society v. Deretichl, forinstance, Berry J. adopted the more conservative view expressed 10years later in England by the majority of the judges who decided Candler’scase (supra). In Western Alarm System v. Coini a, Jones J. and de VilliersJ. found it unnecessary to resolve the conflict of authority, but werecontent to rule that, in either view, a negligent false statement wasactionable if made directly to the plaintiff (i.e., the person actuallydeceived) to whom the speaker or writer was bound by contractual relationship,with knowledge or notice that it would be acted upon. In a more recentjudgment, Malan J. decided that before liability can attach in an actionfounded on a negligent misrepresentation which takes the form of deceit,“ some special relationship (between representor and representee) mustexist—contractual or fiduciary—or some special circumstances must existwhich create a similar relationship ”—Mrupi v. Hershall ®. This, in hisopinion, is the only exception to the general rule that “ independentlyof contract, a false representation causing damage is not actionable unlessfraudulent ”—Dickson <b Co. v. Levy.*
The present state of these S. African authorities indicates that, even inan action under the Roman-Dutch law for damages instituted by someonewho was actually misled by another’s negligent misrepresentation, it isat least doubtful whether (and if so, to what extent) negligence by itselfsuffices to establish a cause of action. But there is certainly no precedentfor applying the ruling in Perlman’s case (supra) to the elements of anentirely different delict, conveniently described as “ injurious falsehood ”.
The learned District Judge has also claimed support for his propositionin the judgments of the majority of the English Court of Appeal (Sci-uttonL.J. dissenting) in Everett v. Griffiths5, followed by McCardie J. inde Freville v. Dill8. The principle laid down in those cases is that, notwith-standing the absence of contractual relationship between doctor andpatient, the former is liable for damages caused by the latter’s physicaldetention (under the Lunacy Acts) which was the inevitable consequenceof a negligent report as to the patient’s mental condition. I conceivethat this would certainly be so under the Roman-Dutch law, becausethe lex Aquilia proper itself provides a remedy for causing physicalinjury either maliciously or negligently; compulsory detention in amental institute obviously constitutes physical interference with thepatient’s right to his personal freedom.
The analogy of the “ lunacy cases ” does not lie where a plaintiffcomplains only of pecuniary loss resulting from a negligent statementconcerning himself made by the defendant to a third party and actedupon by the third party to the plaintiff’s detriment. In such a situation,the ratio decidendi of Alliance Building Society v. Deretich (supra) isprecisely in point, and we have not been referred to any authority of theEnglish or S. African Courts which takes a contrary view. Indeed,
1 (1941) T. P. D. 263.* 11 S. C. 36.
(1944) C. P. D. 271.‘ (1920) 3 K. B. 163.
(1953) 3 A. L. F. 553.» (1927) 96 L. J. K. B.1056.
GRATIAEN J.—Chiaael v. Chapman
Watermeyer J., who wrote the controversial judgment in Perlman's case(supra), has himself explained in Van Zyl v. African Theatres Ltd. (supra)that dolus or animus injuriandi is the true foundation of the action for*' injurious falsehood
It is interesting to note that Atkin L.J. in Everett v. Griffiths (supra) atp. 213 discusses the kind of problem which has arisen in the present case.Dr. Chissel’B duty to the plaintiff could clearly not be placed higher thanthat of a doctor who, in discharge of his contractual obligations towardsan insurance company, examines a person proposing to take out a policyof life insurance with the Company. Lord Atkin contrasted thatrelationship with the situation of a doctor who is under a statutory dutyvirtually to decide whether a suspected lunatic should be detained in anasylum. Having first analysed the general duty of a doctor towards hispatients, he explains :
“ In all the above cases the duty to the patient may be negatived bycontract express or implied, or by some circumstances that are inconsistentwith the existence of such a duly. A patient may be examined, forinstance, by the medical officer of the insurance company ; it would,I think, be reasonably plain that the patient submitted himself toexamination upon the footing that the doctor owed the duty to lake care,not to him, but to the insurance company. ”
The learned District Judge does not explain why he found it “ difficultto follow the logic ” of what Atkin L.J. had regarded as “ reasonablyplain ”.
Denning L.J., whose other propositions found favour with the learnedDistrict Judge, has also remarked in Candler's case (supra) at p. 183 :
“…. a doctor, who certifies a man to be a lunatic when he is
not, is liable to him, although there is no contract in the matter, becausethe doctor knows that his certificate is required for the very purpose ofdeciding whether the man should be detained or not; but an insurancecompany's doctor owes no duty to the (proposed) insured person, becausehe makes his examination only for the purposes of the insurance company. "
I find no trace of faulty logic in either of these pronouncements. Apartfrom other considerations, a contrary view might well result in thedoctor’s admitted duty to his own immediate employer coming into sharpconflict with his alleged contemporaneous duty to the “ patient ”concerned.
Let us suppose that, in a hypothetical situation, the doctor carelesslybut honestly considers that the proposed insurance might possibly(but not certainly) be attended by some aggravated risk to the insurer.What then would be his duty ? To resolve the doubt in favour of thocompany to whom ho was bound by contract, or in favour of tho examineetd whom ho was not ? Tho answer is obvious. The law does not favoura situation by which a person binds himself by contract to undertakeconflicting duties : a fortiori, the law refuses to create the conflict.
GRATIAEN J.—Ohiaael v. Chapman
In England, “ less timorous ” common law judges sometimes findthemselves free to invent a new cause of aotion to meet a new situation(if the problem is unembarrassed by binding precedent). But thoseof us who administer the Roman-Dutch law cannot disregard its basicprinciples although (on grounds of public policy or expediency) we maycautiously attempt to adapt them to fresh situations arising from thecomplex conditions of modem society. But we are powerless to alterthe basic principles themselves, or introduce by “ judicial legislation ”fundamental changes in the established elements of an existing causeof action. Xt is in this respect that, in my opinion, the learned DistrictJudge has erred.
Even in England, as Asquith L.J. pointed out in Candler’s case, theratio decidendi of Donoghue v. Stevenson 1 has never yet been appliedwhere the damage complained of was not physical in its incidence to eitherperson or property. The Australian Courts have also refused to extendLord Atkin’s “ love thy neighbour ” principle to the cases of a race-course judge who negligently fails to award the prize to the horse whichactually won the race—see the decisions mentioned in an article in (1948)11 Modem Law Review at pp. 31-2. Similarly under the Roman-Dutchlaw, the race-course judge owes a contractual duty to Iris employer notto be negligent, but his only obligation to the owners of the horses isto exercise his judgment honestly on each occasion. Whether thepatrons of horse-racing in this country ought to be more favourablyplaced than their Australian counterparts is entirely a matter for legis-lative decision ; this problem certainly leaves no scope for the judgesto “ out-distance Atkin ” or “ out-Denning Denning ” in the field of legalreform. In Mrupi v. Hershell (supra) Malan J. said at p. 553 :
“ Common sense fortifies the view that some limitation must be
placed upon liability in damages for innocent non-defamatory state-ments negligently made, otherwise ordinary intercourse betweenindividuals would be fraught with great danger, and a person in com-municating with another would speak at his peril. ”
As far as the delict of “ injurious falsehood ” is concerned, the limitationshave long since been fixed and clarified by the basic principles of ourgeneral law.
In the present case, the honesty of the defendant’s opinion was neverin issue. Even therefore if the opinion which he communicated to Cable& Wireless Ltd. concerning the plaintiff’s suitability to undertake theduties of a telegraphist had been negligently arrived at, this action wouldnot have been maintainable.
In the view which I have taken, I Bee no necessity to examine in detailthe issues of fact in the case, particularly as my brother Fernando hasdealt fully with the charge of negligence in his separate judgment. Itoo am quite unable to attribute any degree of culpable negligence to thedefendant’s honest refusal to certify the plaintiff as fit to be employed
1 (1932) A. C. 562.
OBATIAEN J.—Ohisael v.'Chapman
by Cable & Wireless Ltd. Dr. Gunawardene himself was not preparedto say that the defendant’s opinion, even if incorrect, betrayed anythingmore than “ at the most, an error of judgment ”.
With regard to the allegation of negligence, we have enjoyed thespecial advantage of hearing the submissions of Mr. E. G. Wikremanayakowho represented the plaintiff in both Courts. His argument on the factsmay bo summarised as follows :
Tiie clinical finding on 14th July, 1949, that “ the heart was enlarged,
the apex being outside the nipple line ” was demonstrablyincorrect, and could not have been reached without gross care-lessness ;
Although no legitimate complaint can be made against the original
opinion based on the recordings of the plaintiff’s blood pressureon 14th July, the defendant was forewarned at the date of thesecond examination on 27th July that two eminent doctorshad specifically reported the absence of any symptoms of heartdisease. In these circumstances, ,he was grossly negligentin adhering “ obstinately ” (and without sufficient furtherinquiry) to his earlier diagnosis ; in spite of his recording ofa high systolic blood pressure on this occasion as well, he shouldhave carefully carried out another clinical examination in orderto locate the apex of the heart in relation to the nipple line ;and he should also have consulted Dr. Gunawardene (andperhaps Dr. Foenander) before arriving at a final decisionadverse to the plaintiff.
As to the first complaint, I agree with my brother Fernando that theincorrectness of the defendant’s clinical findings on 14th July, 1949, hasnot been demonstrably established. The foundation of this theory ofnegligence therefore disappears. The second ground of criticism suggestsa counsel of perfection which might well have been observed ifthe defendant had been engaged (or had even gratuitously undertaken)to treat the patient for suspected heart disease ; similarly if it was hisduty to give advice as to future medical treatment by* another doctor ;so again, if he had been required to express an opinion as to whether,from the patient’s point of view, the patient could safely join a strenuousmountaineering expedition. But no such professional duties were infact undertaken either on 14th July or on 27th July, 1949.
As Lord MacMillan observed in Donoghue v. Stevenson (supra) : “ Thelaw takes no cognisance of negligence in the abstract ”. My maindifficulty, therefore, in approaching this part of the case is to fix somearbitrary standard of care on the false hypothesis that the situation didimpose a duty on the defendant vis a vis the plaintiff. For not till thonis it possible to consider whother he had in fact fallen short of tho (assumod)standard.
I find myBelf on firmer gromd when I address myself to the particularduty of care which tho situation actually imposed on the defendant—namely, his duty touxirds Cable Wireless Ltd. In this respect, I amperfectly satisfied that no negligence has been established against him.
GRATIAENJ.— Ghiss el v. Chapman
The company was not directly interested in the question whether Mr.Chapman was suffering from a disease of the heart. It was concernedonly to obtain the defendant’s professional opinion as to whether (from(he point of view of the company and of no one else) Mr. Chapman's employ-ment as a telegraphist and his admission to the privileges of membershipof the Pension Fund were attended by undue risk. On that issue, thedefendant was honestly satisfied that it would be unsafe to entrust thoarduous duties of a telegraphist to a lad of 18 who, on three separateoccasions within a fortnight, had (for whatever reason) registered anunusually high systolic blood pressure for a person of his age. EvenMr. Chapman’s expert witnesses do not dispute that this was a pointof view which a cautious medical man (employed only to protect thecompany’s interests) might fairly and reasonably entertain. It neces-sarily follows that the particular situation did not impose on the defendanta duty to probe still further into the special causes underlying the pheno-menon of the patient’s high blood pressure. At the closing stages ofthe trial, the learned judge asked the defendant whether the plaintiff’shigh blood pressure might not be attributable only to “ emotionalstress ”. The defendant pertinently replied that, even on that hypothesis,he still maintained that “ the lad was not fit for the job ”.
I have already explained why, in my opinion, the law did not imposeany duty of care on Dr. Chissel towards Mr. Chapman. Even if I werewrong in that conclusion, it is obvious that he could not have owned ahigher duty to Mr. Chapman than he admittedly owed to Cable <k WirelessLtd. Let us then assume that the law imposed on Dr. Chissel ah obliga-tion towards Mr. Chapman not to fall below the standard of care whichhe owed to Cable db Wireless Ltd. Even on this hypothesis, the presentaction fails.
Mr. Wikremanayake very fairly conceded before us that the alternativeallegation of “ incompetence ” had not been established.
Before I conclude, I desire to make some general observations. Thelearned judge had clearly formed a very unfavourable impression ofthe defendant’s attitude in the witness box. This is no doubt an opinionwhich an appellate tribunal ought not to ignore. My criticism, however,is that the learned judge’s impression of the witness has unduly colouredhis assessment of the defendant’s sense of duty as a professional .man.
The plaintiff (who gave his evidence with a commendable fairnessand moderation) has himself described the courtesy with which thodefendant behaved towards him in the quieter atmosphere of his consul-ting room. “ Dr. Chissel was very cordial ” he said, “ he greeted mepleasantly and proceeded to examine me ”. In those circumstances,there was really no need for the gratuitous theory that the defendant’s“ somewhat forbidding and frigid exterior ” must have made a partialcontribution to the plaintiff’s systolic blood pressure on 14th July and27th July. This is not one of those very rare cases in which it is rolevantfor a judge to record his personal opinion of a litigant’s personal appearance.
Even the “ bare written word ” cannot wholly conceal from us theatmosphere that seems to have preva led in Court at certain stageswhen the defendant’s evidence was being recorded. He obviously lost
FERNANDO 'A.J.—Ohiasel V. Chapman
his temper in the witness box, and in that state of mind he permittedhimself to give some answers which, under normal circumstances, mightwell have justified a dignified judicial rebuke. But, in the presentcase, some allowance ought to have been made for the mitigating cir-cumstances which attended the witness’ verbal indiscretions. He wasa professional man of long experience whose competence had previouslybeen conceded to him by the plaintiff's expert witness Dr. Gunawardene.It is natural, therefore, to suppose that he must have deeply resentedsome of the insinuations which were made against him at the trial. 1am content, by way of illustration, to mention only the disparagingquestion as to whether he had not received his Fellowship of the RoyaLCollege of Surgeons merely as a reward for war service (and not for passingthe prescribed examination in the usual way). In this situation, itwas quite unsafe to regard symptoms of a doctor’s obstinacy in thewitness box as positive proof of “ perversity ” and “ arrogance ” in his-professional outlook.
I would allow the appeal and dismiss the plaintiff’s action with costsin both Courts. From everybody’s point of view, it is a pity that thecase was not decided on the preliminary issue of law which went to theroot of the matter.
I have had the advantage of reading the judgment of my brotherGratiaen on tho important questions of law which have arisen in this-case and I respectfully express my agreement with his conclusions. Iwould like only to add some brief observations on those questions.
The principle of liability recognised by the decision in Danoghue v.Stevenson 1—a principle which is f aid also to prevail under the RomanDutch Law—influences and sometimes compels a Judge, having regardto now situations and modern conditions, to hold in an appropriate casethat a negligent act is actionable at the suit of a person to whom a dutyof care would not formerly have been acknowledged to exist. But sofar as I am aware no “ bold spirit ” has yet applied the principle in acase whore its application would defeat the express protection affordodby both English and Roman Dutch Daw to purely negligent misrepresen-tations made on occasions to which qualified privilege attaches. Ithorefore agree with Mr. Perera’s contention that a modification of thooxisting law affecting communications made on privileged occasions,even if such modifications were desirable, can only be achieved bylegislation and not by the exercise of the judicial function.
Apart from one or two judgments referring to the (hypothetical) caseof an examination by a doctor of a proposer for life insurance, no decisionwhich has been cited refers to the existence or scope of the duty whichis owed in circumstances similar to those now under consideration. Inote however that McKerron (Law of Delict, 1952 Ed., p. 16) accepts asgood law a dictum of Cairns L.C. in Robertson v. Fleming2 the report ofwhich is unfortunately not available to me:—“ I never had any doubt
1 (1032) A. C, 562.
* (1361) 4 Macj. 177.
FERNANDO A.J.—Chiaael v. Chapman
of the unsoundness of the doctrine …. . contended for by
respondent’s counsel, that A employing B a professional lawyer, to do anyact for the benefit of C, A having to pay B, and there being no intercourseof any sort between B and C—if through the gross negligence or ignoranceof B in transacting the business, C loses the benefit intended for himby A, C may maintain an action against B, and recover damages for theloss sustained. If this were law a disappointed legatee might sue thesolicitor employed by a testator to make a will in favour of a stranger,whom the solicitor never saw or before heard of, if the will were voidfor not being properly signed or attested. I am clearly of opinion thatthis is not the law of Scotland, nor of England, and it can hardly be thelaw of any country where jurisprudence has been cultivated as a science ”.
This would seem to contradict the contention before us of counselfor the respondent that a proctor, who advises his client as to the validityof the title of a third party to a land which the client desires to purchase,would be liable to the third party if his negligent condemnation of thetitle causes pecuniary loss to the third party which coujd have beenreasonably anticipated. If no duty of diligence is owed to the thirdparty in such a case, I see no reason to think that such a duty existed inthe present one, other of course than the duty not to cause physicalinjury by negligence.
I propose now to deal with the facts.
The defendant is a general medical practitioner with the qualificationsof F.R.C.S. (Edinburgh), M.R.C.S. (England) and L.R.C.P. (London).At the relevant time, he had been in practice as such, for the most partin Ceylon, for 43 years. He had since 1913 been medical adviser to theCompany known as Cable and Wireless Ltd., and as such, it was one ofhis functions to examine candidates for employment as telegraphistsunder the Company and to certify to their fitness for such employment.The form of application which has to be filled in by prospectivecandidates refers to the necessity for a medical examination by thoCompany’s medical officer and to the fact that his " decision as to thofitness of the candidate is to he final ”. The defendant has stated inevidence that he is well aware of the nature of the duties of the Company’stelegraphists, that during one half of the year they have to work a sixhourly shift at night time, that their duties involve severe concentrationof mind in order to avoid errors in recording of telegraphic messages whichthey have to transmit and receive, and that a very high degree of physicaland mental efficiency is therefore necessary. Plaintiff’s witness, thepresent Manager of the Company, corroborated the defendant both onthe matter of the latter’s knowledge of the strenuous conditions attachingto the work of a telegraphist, as well as in the matter of the Companylooking to the defendant and no one else for a report on the fitness of acandidate for employment. I may remark in passing that the learnedJudge neither rejects the evidence as to the defendant’s knowledge ofthe specially high degree of physical fitness which is required of theCompany’s telegraphists, nor takes that knowledge into account whenconsidering the nature of the defendant’s duty to the Company as medicaladviser examining a prospective candidate.
FERNANDO A.J—Ohiesel v,'Chapman
Tho minor plaintiff (whom I will for convenience refer to as the plaintiff)was admitted into the service of the Company as a probationer earlyin 1949 without an examination by the defendant, but subsequentlyho was one of a batch of fifteen young men who were sent to the defendant_ for examination, the latter being required to make his report on the usualform (P5) on which he makes his recommendation as to the fitness1 forthe Company’s service. (Some suggestion was made in the case for theplaintiff that the examination in this case was required for pensionfund purposes and not in connection with his employment or continuation,but as the learned Judge has not considered this matter to have beenof much importance it is unnecessary to deal with it). The plaintiffwas examined by the defendant in the latter’s consultation rooms onJuly 14th, 1949, being “ pleasantly greeted ” and “ very cordially ”treated by the defendant. The plaintiff’s description of the nature ofthe examination conducted by the defendant leaves no room whateverto doubt either the defendant’s evidence that he carried out an exhaustiveclinical examination or his account of the various stages of theexamination.-
The defendant’s evidence as to the results of his examination wereas follows :—he noticed an impulse of the heart firstly on visual inspec-tion ; then he located the apex beat of the heart by palpation ; he“ came across the heart ” by tapping it with the fingers (percussion) ;he found the heart enlarged, the apex beat being outside the nipploline (a vertical line passing through the nipple) ; he tested the bloodpressure (a test he would not normally make in the case of a boy of eight-een) because of the condition of the heart noticed on palpation andinspection ; he found a pressure of 154 systolic and 70 diastolic ; hetook a second blood pressure reading after letting the boy rest for a whileand found the systolic pressure then to be 144. Upon these observationsthe defendant made his remarks in the report form (P5) : “ there is avery forcible impulse over the cardiac area. The heart is enlarged, theapex boing outside the nipple area. There are no murmurs. Pulse ratewas 108 per minute and the blood pressure was S 154, I!) 70 ; at thesecond reading the S was 144. Applicant is an athlete which I thinkaccounts for his hypertrophied heart. I am unable to recommend himfor service with Cable and Wireless ”.
The report was transmitted by the defendant to the Company, whosoManager apparently read out to the plaintiff the contents of the “ Remarks”column when informing him on 18th July, 1949, that he was discontinuedfrom the Company’s service. On the same day, tho plaintiff had himselfexamined by Dr. F. J. T. Foenander who was informed (presumablyby the plaintiff) that he had been physically condemned and that thedefendant had reported an enlargement of the heart and high bloodpressure. Dr. Foenander himself carried out an exhaustive clinicalexamination of a nature very similar to that conducted by the defendant.He found the blood pressure to be 120S/80D, the apex beat of the heartin its normal position within the nipple line, and the hoart not enlarged“ so far as he could see clinically ”. He therefore made his report to thefollowing effect. (P3) “This is to certify that I examined R.“C.
FERNANDO A.J.—Chiasel v. Chapman
Chapman on July 18th, 1949. His blood pressure was systolic 120,Diastolic 80. There was no evidence of functional or organio disorderof the heart nor was there any enlargement ”.
Dr. Foenander advised the plaintiff to have an electro-cardiographand an X-ray taken, not because he found anything suspicious in hisexamination, but because he knew that another doctor had taken acertain view with regard to the boy’s heart condition.
Tiie plaintiff has also produced a report from Dr. H. O. Gunawardene,then Radiologist of the General Hospital, Colombo, dated 22nd July,1949, to the effect that the Electro cardiogram and the X-ray film ofthe plaintiff’s heart “ reveals no abnormality ”. Dr. Gunawardenecould not remember the particular occasion when the plaintiff cameto him, and is not certain whether he himself took the Film but saysdefinitely that he took the Electro cardiograph. Some attempt wasmade on behalf of the defendant to cast doubts on the accuracy of theX-ray film by suggestions that the mechanics who operate the equipmentof the X-ray institute are not always efficient or careful and that careis not always taken to establish the identity of the subjects upon whomthe reports are made. But the learned Judge has rightly consideredhimself entitled upon the evidence to assume that Dr. Gunawardene’sreport was based upon a film and cardiograph of the plaintiff’s heartcompetently taken at the General Hospital.
The certificates given by Dr. Foenander and Dr. Gunawardene werehanded by the plaintiff’s mother to Mr. Whiteside who was then theManager of the Company. He apparently Bpoke to the defendant abouta second examination and instructed the plaintiff to present himselfagain before the defendant. The defendant confirms Mr. Whiteside’sevidence on this matter and states that before the second examinationho was shown the certificates given by the other two doctors. On thisoccasion (27th July, 1949) he found the blood pressure to be 150 S., andhis entry in his day book is “ failed ”. The defendant states that noreport form was sent to him or entered on this second occasion.Mr. Whiteside’s evidence is that the defendant after the second examinationconfirmed his findings on the first examination and he states that “ aftorthe second report was received from the defendant lie did not reconsiderthe employment of the minor plaintiff ”. Mr. Kirby the present Managerof the Company cannot speak to a second report and states that theonly report in the File is the first report (P5). The only inference thatcan be drawn from the evidence on this matter is that on the secondoccasion the defendant did communicate his opinion to Mr. Whiteside,but not by menus of a written report, and that thereupon Mr. Whitesidefinally decided that the discontinuance of the plaintiff would stand.
The plaint in this action alleges that the report (the only report referredto in the plaint is P5 of 15th July, 1949) was due to gross negligence and/orincompetence resulting in loss and damage to the plaintiff, and thelearned District Judge has held this allegation to be proved. A re-consideration of the Judge’s finding on the facts might be thought to be
FERNANDO A.J.—Ohiesel V, Chapman
purely academic, in view of the opinion we have formed that negligenceon the part of the defendant in this case, even if proved, does not in lawrender him liable in damages to the plaintiff. But where the professionalreputation of a practitioner of long standing and experience has beennot merely assailed by the institution of a civil action, but has beenassailed in the course of long and forceful cross-examination, where hehas been accused and found guilty not merely of gross negligence andincompetence, but also of conceit, arrogance, perversity, and incredibleignorance of the progress of medical science, where even his physicalappearance, “ his somewhat forbidding and frigid exterior ”, has beenthe subject of adverse comment, where eminent counsel on both sideshave in their arguments in appeal been much concerned with the questionwhether negligence has or has not been proved—in view of all thesecircumstances I consider that an appellate court should in the interestsof justice closely examine the validity of the finding of negligence whichthe learned Judge has reached.'
Before turning to a detailed consideration of the judgment and theevidonce, it is relevant to note that the evidence in this caso was firstrecorded by a Judge who however did not ultimately decide the case.He hoard the evidence of all the plaintiff’s witnesses on 3rd May, 1950,on 5th October, 1950 and 13th October, 1960 : on the latter date theplaintiff’s case was closed and the defendant commenced to give evidence.In consequence of changes in personnel, the Judge who first heard thecase ceased to be District Judge and was succeeded by the loarned Judgewhoso judgment is now under appeal. It was agreed between Counselthat the evidence already led would be taken into account, with liberty foreither side to recall and further examine or cross-examine. Henbe ithappened that both Doctors Foenander and Gunawardene were examinedand cross-examined on two different occasions. This circumstancebecame of some importance, particularly with regard to the evidence ofDr. Foenander,. because he appears on the second occasion to haveacquired a fuller knowledge of text book opinions upon the matters towhich he spoke than he had on the earlier occasion. This in no wayreflects on Dr. Foenander’s reliability as a witness, but on the contraryindicates a proper desire on his part to acquaint the Court with informationwhich had not been conveyed by his earlier evidence. The opinionswhich Dr. Foenander must be taken to have held when he gave evidenceon the first occasion did not diverge from those of the defendant to asnearly a high degree as did the opinions he expressed on the secondoccasion. I shall refer presently to the relevance of Dr. Foenander’searlier evidence upon the question whether the defendant’s knowledge(or rather ignorance) of text bopk opinions should properly have beenheld to constitute negligence or incompetence.
The learned Judge has correctly directed himself that in the case ofmedical men duly qualified there is a presumption of competence andthat accordingly, if the plaintiff is to succeed, the burden is on him toshow that the defendant had been guilty not merely of negligence butalso of incompetence. What we have to decide on appeal is whetherthe plaintiff has been correctly found to have discharged that burden.
FERNANDO A.J.—Chiaael v. Chapman
One matter upon which a very large volume of evidence was led andto which reference is made in a substantial part of the judgment is theconflict of medical opinion as to the blood pressure of the plaintiff, andthe question whether a person, whose blood pressure on 18th July was120S/80D could have been observed on a reasonably careful andcompetent examination to have had a pressure of 154S/70D on thepreceding 14th July. Counsel for the plaintiff in his closing addressstated that he based nothing on the question of blood pressure exceptwith regard to the question of blood pressure taken on the second occasion,that is when the plaintiff was examined a second time by the defendant.Counsel's meaning was that he did not press the issue of negligence inregard to the taking of the blood pressure on 14th July, 1949, and reliedonly on negligence in using an allegedly defective instrument on 27thJuly after there was reason to doubt its accuracy in view of the conflictingopinions of both Dr. Foenander and Dr. Gunawardene. I shall laterconsider the relevance in this action of any negligence in connectionwith the second examination on 27th July.
The learned Judge has not held and plaintiff’s counsel lias not arguedthat, in making his report on 14th July, 1949, the defendant was negligentin regard to his taking of the blood pressure or in the conclusion heformed upon the blood pressure as then found by him. I would saywith respect that a finding against the defendant on this point wouldnot have been justified by the evidence.
The case against the plaintiff therefore rests on his alleged negligoncein diagnosing an enlarged heart, in locating the apox beat as being outsidothe nipple lino, and in permitting this factor in conjunction with hisobservation as to the blood pressure to induce him to report that theplaintiff was unfit for service with the Company.
With regard to the alleged enlargement of the heart, the defendant’sovideneo is that he first noticed a forcible impulse over the cardiac areaon his visual inspection of the plaintiff’s chest. The existence of thatimpulse was confirmed by palpation. It was because he noticed suchan impulse that he decided that it would bo useful to take the bloodpressure, which was ultimately done at the end of the examination.Dr. Foenander when questioned about this part of the defendant’sevidence thought that what was meant was “ forcible action of theheart which is more easily appreciated by the palpating hand ”.Dr. Foenander also said that hypertrophy is an increase in the size ofthe heart associated with increased bulk of the heart muscle, and thatgross enlargement of the muscle can be seen at once on clinicalexamination. Hypertrophy was apparently the condition whichthe defendant suspected on his observations by Inspection andpalpation, a condition which he decided to test by taking the bloodpressure..
The defendant’s evidence with regard to the placing of the apexbeat is that he palpated the chest to locate the apex beat of the heartand thereafter percussed the heart by tapping with the fingers. Defendantstated that he had a special way of percussing which is in his opinion
FERNANDO A.J.— Chiaael v. Chapman
infallible It is in evidence that the normal mode of percussion is toplace the fingers of one hand over the area and to tap those fingers withtho fingers of the other hand. Defendant said in examination-in-chiefthat he himself doos tho tapping directly and not ovor tho fingers of theother hand. The learned Judge had very strong comments to make onthis modo of examination : he makes no allowance for the dofondant’sadmittedly long experience as a general practitioner and for the factthat the defendant’s use of this special method would never have cometo light but for the latter’s own voluntary statement that he employedit: moreover the learned Judge formed the opinion that the defendant’smethod “ would probably have been the early stage reached beforetho introduction of the present practice of placing one finger over thearea porcussed and striking it with two or three fingers of the otherhand ”—an opinion which is not based on evidence given by eitherDr. Gunawardene or Dr. Foenander, and indeed appears to be contra-dicted by the latter’s evidence that “ there is nothing spocial in per-cussing the patient with one finger only If the Judge’s finding thattho defendant’s method was an antiquated one is correct, then it involvesa conclusion which I feel sure he neither could nor would have formod,namoly that during the greater part of the 40 years during which thedefondant has been in practice he has been incompetent in employinga method of percussing not known to qualified and experiencedpractitionors such as Drs. Gunawardene and Foenander admittedly are.
Thereafte – the learned Judge proceeds to consider the adequacy ofpercussion as a means of locating the apex beat of the heart and he refersto cortain opinions expressed in medical text books to the effect thatpercussion is a method highly liable to error and is regarded as obsolete—opinions by which the learned Judge himself appears to have beenvery much impressed.
The fact that tho defendant has not read those text books, that hocontradicted those opinions flatly and indeed rashly, and that he pre-ferred to rely on his own experience, has weighed heavily in the mindof the learned Judge, and it is mainly this evidence which has led tohis opinion that the defendant is arrogant and conceited. But it shouldbe clear from the evidence given in this case by Drs. Gunawardene andFoenander, that the question whether a particular medical practitionerhas been guilty of negligence cannot be answered against him morolyon the score of his ignorance or disregard of the opinions which condemnthe method of percussion. Dr. Gunawardene said that the apex beat isascertained by palpation and percussion, that they are both matters ofexperience, and that the more experience a medical man has the moreexport he becomes in placing the apex ; he also admitted that thodefendant is oxtremely well qualified to examine the chest in that mannerand that tho examination in this case was made by a well qualified andwoll experienced practitioner.
Anothor passage in Dr. Gunawardene’s evidence is worth reproductionin order to Bhow the divergence of his views from those of text writerswho appear to 1 eject percussion out of hand as being dangerous and
FERKANDO A.J.—Chissel v. Chapman
obsolete :—“ The object of percussion is to map out the heart, that isto detect the extremities of the heart edge. The average praotitionerwill depend on percussing in order to assist him to map out the heartgenerally. As a matter of fact when I carry out a clinical examinationI percuss to map out the heart very often. I have not given up that sortof examination and I have no intention of giving it up. I always do soin cases where I do not screen ”.
Dr. Foenander’s evidence is that he employed the samo methodsas the defendant in his clinical examination of the plaintiff’s heart. Howas satisfied from the palpation test that the apex beat was within thenipple line. In his view the object of percussing a pationt’s chest is tofind any abnormality in the resonance :—“ When you come to the heartyou get a duller note because the heart is a more substantial organ thanthe lung. Percussion is for the purpose of finding out any abnormalityin the resonance ”. The iirference is clear that when you notice theabnormality in resonance at a point outside the nipple line, there is anindication that the heart iB whexe it should not noi-mally be. Dr. Foonanderhimself employed the percussion test when he examined the plaintiff onJuly 18, 1949, with a view “to ascertaining whether he suffered fromany functional or organic disorder of the heart ” ; percussion was a regularitem in his normal clinical examination and he agrees that percussionis very largely a matter of experience.
Thoro is no montion whatever in Dr. Foenander’s evidence on theearljer occasion of the danger or obsolescenco of the method of percussion ;it is no answer to say, as might be said in regard to an ordinary witness,that no question was asked on this point, because one would rightlyexpoct an expert witness, who is called to give evidence on the correctnessof a diagnosis found upon a clinical examination of the heart, to referto feo important a matter of his own accord if he himself held unfavourableviews as to tho method of percussion at the time when he first gavoevidonce.
' It was only when his evidence was (fortuitously) taken on the second. occasion that Dr. Foonander expressed the view that “ percussion inorder to find out the condition of the heart is now obsolete At thosame time, however, his own practice in cases similar to the presentone, nainoly in examining proposers for life insurance on behalf of InsuranceCompanies, is to conduct oixly a clinical examination and not to roquirean X-ray examination before making his report ; if he is in doubt, ho’advises tho Insurance Company to have an X-ray or cardiograph' taken if they tvish to investigate further. In the result many a proposal, might well bo turned down by an Insurance Company withoutX-rays or cardiographs being in fact taken to clear doubts raised byDr. Foenander’s clinical examination.
Having regard to the evidence of Dr. Gunawardene, as well, as thooarlior evidonce of Dr. Foonander, my considered opinion is that, evenif text writers have condemned percussion as a means of mapping outtho heart and thus of estimating the size of the heart, there was noground for holding that the employment of percussion by the defendantconstituted either negligence or incompetence.
FERNANDO A.J.—Ohiasel t>. Chapman
Even on the assumption that ignorance or disregard of the opinionsof recognised authorities would constitute negligence, the opinionswhich were put to the defendant in cross-examination do not justify theinference that it was palpably incorrect in a case like the prosont oneto rely on palpation and percussion in finding cardiac enlargement.One passage roads “ the position of the apex beat is the best clinicalindex, but cardioscopy must ultimately decide the extent and directionof the enlargement for it is important to delineate the right and posteriorborders of the heart as well as the left border Again “ Inspection, pal-pation and percussion are methods adequate on many occasions, butsometimes inaccurate and sometimes not applicable Thirdly, “ Thismethod of measuring the heart has much value if used reasonably…. Very fantastic ideas have been and still are held of the accuracy
that can be obtained by percussion Fourthly, “ Adherence to thistraditional method of examination can never advance our knowledge ofcardiology and since it inevitably deceives both teacher and studentof clinical methods, it may produce harmful effects When these opinionsare carefully examined it becomes evident firstly that they do notcondemn the employment of the method of percussion in clinical examin-ations, secondly that they acknowledge the widespread use of the methodby practitioners, andthirdly thattheyare in the naturo of acrusade to
correct the views ofthe manywho(it is alleged erroneously)have
confidence in the method.
The next point considered by the learned Judge is the failure of thedefendant to have the plaintiff X-rayed in order to test or confirm theabnormality of the heart found by the defendant. He finds that thedefendant was guilty of negligence of an aggravating character andalmost of perversity by reason of his failure to order X-ray or screeningeven though he (thedefendant)hadpositive evidence thatanX-ray
(Dr. Gunawardene’s)revealed noabnormality. This findingandmany
of the Judge’s more severe criticisms of the defendant refer to the secondexamination by the defendant and not to that of 14th July 1949 ; it isnot a finding of negligence at the examination which preceded thereport P5. Nowhere in the judgment is there a finding of negligenceon the ground of making the report P5 without the confirmation by anX-ray or electro cardiograph. Even if there had been such a finding,it is doubtful whether such a finding would have been justifiable, becauseall that the defendant was required to do on 14th July, 1949, was to makea clinical examination of the plaintiff and furnish his report on the resultsof that examination—-a task which he carried out to the letter. TheCompany was well aware, when notice of discontinuance was givento the plaintiff, that their decision to discontinue was upon a reportbased solely on a clinical examination. I
I have dealt thus far with the findings of negligence or incompetenceon the grounds of the employment of an invalid test and of the failureto employ a proper one. Counsel for the respondent also relied on themaxim res ipsa loquitur, not expressly referred to as such by the learnedJudge. He holds that the defendant’s diagnosis was wrong becauseho was guilty of a palpable error in locating the apox beat of the heart.
FERNANDO A.J.—Chiaael v. Chapman
The finding of “ palpable error ” appears to have been reached on thereasoning that Dr. Foenander on 18th July correctly diagnosed theapex beat to be normal and within the nipple line and that the X-rayand cardiograph correctly indicated absence of heart enlargement:that it was impossible for the apex beat to have actually been outsidethe nipple line on 14th July : that the defendant’s observation on 14thJuly of a condition which was medically impossible was thereforepalpably erroneous and must be held to have been attributable tonegligence and/or incompetence.
The difficulty and indeed the danger in a case where the opinion ofa defendant who is a professional man is contradicted by the evidenceof professional colleagues is that a determination that the defendant’sopinion was wrong comes to be regarded as decisive of the issue of negli-gence. But even on the assumption that the proposition error =negligence is a sound one to apply in the present case, thequestion to be first decided is whether the condition of theheart as found by the defendant on July 14th was a medicalimpossibility,e
Dr. Foenander on the first occasion stated “ there is the possibilityof a reduction of a human being’s heart within the space of three orfour days. On one examination it will be found that there is an en-largement and on a subsequent examination a few days later it will befound that there is no enlargement ”, and again “ Q. In the case of aheart which is only slightly enlarged it is quite possible that it couldbe slightly enlarged on one day and three or four days later there was areduction in the size ? A. Yes But on the second occasion he saidthat his former statement was not correct, and he also modified theformer evidence by saying that the reduction in three or four days ofthe sizo of the heart “would only apply in the case of disease and not in anormal person ”. Again, he said that the size of the heart could boreduced in three or four days, but the amount of the reduction can boappreciated only in a week.
Dr. Giinawartlene on the first occasion said that apart from illnessthe condition of the heart as found by the defendant on 14th July“ is not likely in view of my findings on 22nd July. It is not usual toget a thing like that ”. Apart from illness he did not think the reductionwits possible. In re-examination however he did state that reductionin a few days without illness “ could not be possible ”. On the secondoccasion Dr. Clunawardene’s views are not expressed didactically ;the furthest he went was to say “ it can happen if a man has heartdisease or some illness but not in the case of a normal person. It is amatter of opinion as to whether an enlarged heart can come to normalwithin a week but in the case of a normal heart there can be no variationwithin a week
Upon this important question of the likelihood of a change in the sizoof the heart during the relevant period, the several views of the twodoctors called for the plaintiff, taken together, givo us “ possible ”twice, “ possible if there was some disease ” also twice, “ not likely ”,
FERNANDO A.J.—Chissel v. Chapman
“not usual”, “not possible without disease”, “not impossible”’“ certain medical men hold that opinion ” and “ it is a matter of opinion”-The nature of the disease which might account for the reduction is notmade clear in any of these opinions. On this evidenco, there is amplereason to reach a finding of fact that it was improbable or even veryunlikely that the condition found by the defendant on 14th July didactually exist on that day—but the evidence does not support a findingthat the existence of that condition was an impossibility. And in myopinion it is only a finding of impossibility which would justify theapplication, in this case, of reasoning akin to that upon which thomaxim of res ipsa loquitur is based. Obviously, if the condition wasonly improbable or very unlikely, the diagnosis of that condition cannotbo said to be necessarily and presumptively erroneous, and proof wouldbe required of the actual act or omission which constitutes the negligencecomplained of. Moreover, the learned Judge has held that the plaintiffwas subjected to an exhaustive clinical examination by the defendant;it is in evidence that the defendant does not normally take the 'bloodpressure when examining in cases like the present; he only did so becauseof his observation of a forcible impulse, and he did so a second time afteran interval to check on the first reading ; his observation as to thopressure confirmed his earlier observations ; he questioned the plaintiffas to whether he had taken violent exercise ; he tested the eyes, the teeth,the throat, the stomach, the groin, the arms and knees, the urine ; allthis is spoken to by the plaintiff himself. Given all these indicationsof a careful and conscientious examination, is it reasonable to supposethat the error, if error there was, in locating the border of the heart wasattributable to carelessness either in palpating or percussing within thenipple line and thinking that the area tested was outside or in detect-ing a beat outside the nipple line when there was no beat thereat all ?
Even on the assumption (which as just indicated has not been shownto be applicable in this case) that the finding of the apex beat to beoutside the nipple line on July 14th was a medical impossibility, thereremains the question whether such a finding has necessarily to be attri-buted to negligence. This was in fact the principal ground upon whichCounsel for th, respondent relied at the agrument in appeal. He referredto passages in the evidence of Drs. Foenander and Gunawardene inorder to show that in their opinion thiB question must be answeredagainst the defendant. It was in this connection clearly establishedthat the location of the apex beat is a simple matter for a person ofexperience, particularly in the case of a subject like the plaintiff who isproved to be thin. Dr. Foenander “ did not think that he himselfcould have made a mistake in finding the apex of the heart ” and “ couldnot think of any reason for coming to a wrong conclusion, other thaneither carelessness or incompetence Whon examined in chief,Dr. Gunawardene was asked “ is it a mistake that a doctor of experiencecould have made in the case of this boy The recorded answerwhich is “ likely ” is disputed by Mr. Wikramanayake who is certainthat the answer was “ not likely ”. Even the latter answer is notsufficiently definite to justify the presumption that the error in this
FERNANDO A.J.—Okissel v. Chapman
case Vas a negligent one. Dr. Gunawardene on this point said incross-examination “ by an error of judgment a doctor can fail sometimes,but he ought not to ”, and “ I agree that at the very most it may bean error of judgment ”, He also said that a failure to observe correctly“ is duo to inaccurate observation. It may also be due tocarelessness ”.
It was sought to explain that the expression “ error of judgment ”»when used by Dr. Gunawardene, did not carry with it the implicationordinarily attached to it that the error referred to was due to some causeother than negligence ; but Dr. Gunawardene’s other evidence on thisparticular matter does not lend much support to this explanation, noris there anything in his evidence to indicate that he uses commonEnglish expressions in senses unfamiliar to those who learned the languagein the pre Swabasha days.
Dr. Foonander unequivocally attributes the alleged error in this caseto negligence, but against this there are the much less stringent opinionsof Dr. Gunawardene who has functioned as specialist in heart diseasesfor 30 years and has published a book on the subject. There is no needto determine, and indeed no means of determining, which of them isright and which wrong, but in the face of the disagreement on thispoint between the plaintiff’s witnesses, it is obvious that for the purposesof a judicial decision on the question of negligence the opinions of thespecialist must be preferred. I am of opinion therefore, that evenassuming error in observation, the plaintiff has failed to provenegb’gence.
Dr. Foenaiuler on the second occasion appeared to bo somewhat morediductic in the expression of his views than was Dr. Gunawardene oneither occasion. The learned Judge thought that the latter “ wasinclined to be a little more generous towards a fellow practitioner ”,but the difference of attitude to my mind rests on a sounder basis.According to his evidence, Dr. Gunawardene appears to have hadconsiderable experience, not only of radiology and heart disease, butalso of cases of conflict of professional opinion ; and based on his latterexperience are his remarks :—“ If another medical man disagrees withmy opinion, I would say that I am right, but I would not blame theother man for taking a different view and I would not always say thatthe other man is wrong These remarks are in my view a reflectionrather of Dr. Gunawardene’s professional opinions, than of his kindlinessor generosity. 1 think therefore that more stress should have been laidon his evidence that the error was “ at the very most an error ofjudgment”.
For the reasons which I have tried to set out somewhat fully, I amof opinion that the finding of the learned Judge, that the defendant wasguilty of negligence or of incompetence, or of both, in his examinationof 14th July 1949 and in making his report P5 to the Company, cannotbe sustained on the evidence and must therefore be set aside.Mr. Wikrumanayuke did not in appeal rely on the correctness
FERNANDO A.J.—Chisatl v. Chapman
of the finding of negligence on the ground of the employment of thepercussion test, but I have referred to this matter in some detail becauseof the importance attached to it in the judgment.
The remaining ground relied on at the appeal in support of the findingof negligence was that the defendant, on the occasion of the secondexamination of the plaintiff either attempted again to locate the apexbeat and did so negligently, or omitted to make such an attempt, anomission which itself constituted negligence in view of the certificatesof the plaintiff's experts as to the condition of the heart. The firstground is not tenable, because there is nothing in the evidence to showthat the defendant did attempt on this second occasion to locate theapex beat; indeed the inference from the evidence both of the plaintiffand the defendant is that no such attempt was made. As for the secondground, the evidence is that the defendant took the blood pressure andfinding it to be 150S decided that he would not change his earlier opinionas to the fitness of the plaintiff for employment by the Company. Itwill bo remembered that on the first occasion also the defendant appearsto have regarded the blood pressure test as confirming the possibilityof an enlarged heart, and in addition there is his evidence that high bloodpressure by itself even if due to nervousness or excitement would renderthe plaintiff unsuitable and unfit for the employment. Apparentlyall that the defendant intended to do when he agreed to make the secondexamination was to take the blood pressure and test his conclusion(as to fitness) upon it—a course which is not shown by the opinions ofthe plaintiff's experts to be an unreasonable one. The only justificationtherefore for holding the defendant to have been negligent on the secondoccasion would be a finding that since Dr. Foenander had previouslyread the blood pressure as being 120S and Dr. Gunawardeno hadpronounced upon the soundness of the heart condition, the defendantshould have suspected some defect in his instrument and should haveverified its accuracy before relying upon it. If the instrument usedby tho defendant had in fact been proved defective, one can appreciatethe argument that ho was negligent in having used defective equipment.But in the absence of any such proof of inaccuracy, it was only aninference of inaccuracy (to be drawn by reason of the different resultsfound by the plaintiff’s experts) which remained available to the learnedJudge ; and this inference he was not entitled to draw, because bothDr. Foenander and Dr. Gunawardene did not definitely or even verystrongly exclude tho possibility of variations in blood pressure =aftershort intervals of time.
I am of opinion that even if it was open to the plaintiff to rely solelyupon negligence at the second examination as the basis of his presentaction, ho has failed to establish that the defendant was negligent onthat occasion.
I agreo that the appeal should be allowed and the plaintiff’s actiondismissed with costs.