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.
Appeal alUnced.