061-NLR-NLR-V-07-PERERA-v.-CHINNAIAH.pdf
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PEBEBA v. CHINNIAH.G. &., Colombo, 22,779.
1904.Jim* IS.
Professional opinion—Advice of veterinary surgeon—Exercise of reasonableprofessional s kill—Purchase of unsound horse—Liability of veterinarysurgeon.
A professional adviser does not guarantee the soundness of his advice.His duty is to bring to the exercise of his profession only a reasonabledegree of care and skill, but not the highest degree of skill.
If his honesty and good faith are admitted, a properly qualified veteri-nary surgeon would not be liable for the-consequence of an opinion givenafter careful diagnosis.
Gross ignorance or crass negligence alone would justify an action fordamages against him.
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HE plaintiff sued the defendant to recover the sum of Bs. 300as damages, alleging that by the negligence and incompe-
tence of the defendant, who was a veterinary surgeon, in givinghis opinion for reward, the plaintiff was induced to purchase an^unsound horse for Bs. 600 (with its harness). The defendantdenied that at the time he gave his opinion the horse was unsound,and he pleaded that his opinion was given honestly, faithfullyand after due exercise of reasonable skill.
The Commissioner (Mr. A. de A. Seneviratna) found that defend-ant’s opinion, though honestly delivered, did not rest on a dueexercise of reasonable professional skill.
“ His failing to notice lameness at any time, his omission torefer in his certificate to the defects which he observed in thehorse at the time he examined it, his imputing the peculiarity ofits gait first to the hardness of the skin at the fetlocks and after-wards to bad training, force me to the conclusion that his opinion,honest as it was, is not founded upon a due exercise of reasonable
professional skillMr. Sturgess (who examined the horse)
Bays that there was no difficulty in seeing that the horse wassuffering from osteoporosis, and that the splint under the knee of
the near foreleg was such at? to render him lameI find that
at the time the defendant examined the horse it was not sound byreason of weakness in the spine, a isplint in the foreleg, enlarge-ment of the right side of the lower jaw bone, and other defects.I find that the horse is not^ worth more than Bs. §50 owing to itsunsoundness,- and I assess the plaintiff’s d’amages at Bs. 250. Igive him judgment for that amount with costs.”'
The defendant appealed.•'
The case came on for argument before Wendt and Middleton,J.J., on 23rd May, 1904.
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1904. Domhorat, K. C. (with Elliott), for appellant.—Lord CampbellJune IS. Baid: “ When I had the honour of practising at the Bar of England,though I was tolerably cautious in giving opinions, I have nodoubt I have repeatedly given erroneous opinions, and I think itwas Mr. Justice' Heath who said that it was a very difficult thingfor a gentleman at the Bar to be called upon to give his opinion,because it was calling upon him to conjecture what twelve otherpersons would say upon some point that had never before beendetermined.” Purves v. Landell, 12 Cl. & Fin. 102. A pro-fessional man does not guarantee' that his opinion is right. Thatwould make him an insurer. Here Mr. Sturgess, the adverseexpert,‘says it is very difficult to give an opinion on such a question.The horse was not bought because of the opinion given, but ofthe exercise of the plaintiff’s own choice. He was not bound toact on the opinion given. That opinion was not given ignorantly.Every professional man is presumed to be competent to advise, butthe person who seeks it may act on it or not, as he likes. Plaintiffsays that the defendant is liable because .of the unsoundness of thehorse. If osteoporosis made the horse unsound, it may have beena development after the defendant had examined the horse.Doctors disagree, and who can be sure whether defendant or Mr.Sturgess is right? Defendant used his best skill, and no negligenceis proved. According to Vanderlinden, a professional man is notresponsible unless his advice has been given maid fide. Vander-linden’s Institutes, p. 242; Swinfen v. Lord Chelmsford, 5 Hurls.& Norm., 916; Williams v. Ceylon Company, Ltd., 3 Browne, 127.
Walter Pereira (with him Wadsworth), for respondent.—Casesagainst barristers, such as Swinfen v. Lord Chelmsford, do notapply to cases like the present, because barristers cannot sue forfees. The defendant is liable because he did not exercise dueprofessional skill. Mr. Sturgess’s evidence proves the defendant tohave been negligent. Negligence is the absence of such care asit was the duty of the defendant to use. Grill v. General IronScrew Collier Coy., L. R. 1 C. P. 612. Tindal, C.J., said: “ Everyperson who enters into a learned profession undertakes to, bringto the exercise of it a reasonable degree of care and skill. Hedoes not undertake, if he is ap attorney, that at all events youshajd gain your cause; nor does a surgeon undertake that he willperform a cure, nor does he undertake to use the highest degreeof skill. There may bfe'persons who have higher education andgreater advantages thdn he has, but he undertakes to bring -a fair,reasonable, and competent degree of skill.” ‘ Lamphier v. Phipos, 8Car. & Payne, 479. When the plaintiff employed the defendant,he expected a fair, reasonable, aid competent degree of skill.
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Defendant may have done his work as well as he could, but if thatwork fell short of the standard of fair, reasonable, and competentdegree of skill, he would be liable. ' Holland’s Jurisprudence, p. 100.The Court has found that the defendant failed to note what evencommon farriers deteoted. Sturgess corroborates their diagnosis.The finding of the Commissioner, according to the evidence, and hisjudgment on the question of damages sustained, is right.
Domhorst, K.C., in reply.
Cur. adv. vult.
15th June, 1904. Middleton, J.—
This was an appeal against a judgment ordering a veterinarysurgeon to pay Rs. 250 damages and costs to the plaintiff, aproctor, for alleged negligence and incompetence on the part ofthe defendant in giving his opinion for reward as to the soundnessof a horse, by which the plaintiff was induced to purchase thehorse.
It is a curious fact in this case that the defendant’s certificateis as to a black horse eight years old, while Mr. Sturgess refers toa brown horse seven years old.
Neither counsel for the appellant nor for the respondent wereable to produce any authority bearing on the question as towhether and to what extent a properly qualified veterinarysurgeon was liable for the consequences of an opinion givenbond fide and after careful diagnosis. The learned Commissionerwho heard the case held that the defendant, when he gave hiscertificate, was honestly of opinion that the horse was sound;but his failing to note lameness at any time, his omission to referin his certificate to the defects which he says he observed at thetime, his imputing peculiarity of gait first to the hardness of theskin at the fetlock and afterwards to bad training, forced him tothe conclusion that the opinion of the defendant, honest as itwas, was not founded on a due exercise of reasonable and properskill, and found him guilty of and responsible for negligence.
It is difficult to see how the defendant has been negligentexcept as regards his diagnosis, but it >is proved he examined thehorse carefully; he states that he observed both the splint 'andthe growth of the lower jaw and noticed no lameness, but anawkward hind gait, and he does not regard any of thesesymptoms as indicative of unsoundness. He also looked at theback and loins, which he sayg are not,weak. ,
~ if anything is to be charged agsunst the defendant, it must beignorance or incompetence.
1904.
June 15.
1904.
June IS.
Middleton,
J.
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It is submitted to us by tbe respondent's counsel that, even ifthe evidence of Walles and De Silva is not taken into considera-tion, the evidence of Mr. Sturgess shows that the defendantdisplayed gross negligence and incompetence.
I feel that I cannot accede to this, as, even if I prefer the opinionof Mr. Sturgess to that of the defendant, I am not prepared tosay upon it that defendant has no knowledge of his profession.
There does not appear to be authority in the Boman-DutchLaw bearing on the question, that the learned counsel for theappellant can point out to us, but he has called our attention top. 1Q3 of M. de Villier’s Translation of and Annotations to Booh47 of Voet.
The observations there set out appear to apply to the case of an,injury arising from a statement made by a doctor as regards a,patient’s condition of health in respect of its defamatory character.
The first requisite under the Roman-Dutch Law appearsto be the animus injuriandi, which apparently may be eitherexpressed or implied; but. if that is so, where is that element tobe found in this case? Can it be held, if a professional person isconsulted by one of the public, who tells him he purposes to acton the advice given in a matter of business, and the advice isgiven in absolute and unheeding ignorance of the subject uponwhich it is asked, that so entire a disregard of professional obliga-tion may amount to such complete recklessness, as to whether heinjures or not, as to imply an intention to injure. I doubt it.
It would be extending the doctrine of implied intention toofar. The Roman-Dutch Law, which I presume should govern thiscase, seems to be against the Commissioner’s ruling. I will nowexamine the English cases to which our attention has been called.
Chief Justice Tindal, in Lamphier v. Phipos (1838), 8 G. & P. 479,which was an action against a surgeon for negligent and un-skilful treatment, lays it down that every person who enters alearned profession undertakes to bring to the exercise of it areasonable degree of .care and skill, but does not undertake to usethe highest degree of skill.
Lord Campbell, ip PurvestV. Landell, 12 Cl. & Fin. 97 (1845),apprehending that . there is no distinction between the law inScotland and Jhat in England, says “ the professional adviser hasnever been supposed’to guarantee the soundness of his advice,”and Lord Brougham in the same case, which was an action in theScotch Courts against a Writer,to the Signet for compensation formismanagement of a case, held that the very essence of the action^was that there should be negligence of a crass description or grossignorance.
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A veterinary surgeon or the present day, if not strictly a1804-
member of the learned professions so-called, is at least a member ■f“ne U.of a profession which requires considerable learning and attain* MTnr>rrrn»,ments to acquire its higher professional qualifications; and it is J-admitted that Mr. Sturgess has acquired these in England and thedefendant has acquired them at the Government VeterinaryCollege at Bombay, which Mr. Sturgess admits is one of the bestin the East.
Mr. Sturgess’s opinion as to the unsoundness of the horse inquestion is supported by Mr. Walles and a farrier, and the weightof the opinion is distinctly in favour of the theory that the horsewas unsound when Mr. Sturgess saw it and gave his certificate onthe 8th January, 1903.
The evidence that I think is required under the English Lawto make the defendant responsible is to the effect that it wouldbe impossible for any person professing to be a veterinary surgeonto say in that capacity that he considered the horse was sound,unless he were quite ignorant of the A B C of his profession,and that a man would be quite ignorant of his profession if he didnot know the difference between a swelling on a bone and osteo-porosis, or between an injurious and a harmless splint.
I think it would be on the plaintiff to demonstrate that' thedefendant’s opinion arises from gross incompetence or ignorance,or from crass negligence in his diagnosis and examination of thehorse.
As the case at present stands, there is one qualified person’sopinion against another’s, coupled with the opinion of two practi-cal men. It is notorious that doctors or lawyers and experts ofevery kind are constantly differing in opinion on the same facts,and, although as a matter of opinion a reasonable man wouldprefer to accept what appears to be the weightiest and most value-able, yet that acceptance does not of necessity imply that theopinion of the defendant is the outcome of gross ignorance orcrass negligence, which I think alone would be a good ground forholding him responsible to the plaintiff. I feel, therefore, thatI cannot hold the defendant responsible in this case either underthe Roman-Dutch Law or English Law.
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I am of opinion that the appeal must be allowed with * costs^but I think the parties should pay their own costs yi the Court ofRequests.
Wendt, J.—
* Under the Lex Aquilia a surgeon was liable in damages forunskilfulness or negligence (Inetit. 4, 3, 6, 7; Dig. 9, 2, 7, 8), and
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1904. the principle was well recognized in the Roman-Dutch Law (Yoet,June is. Ad. Pand. 9, 2, 23), being founded on the maxim that “ no one ought—to affect that in which he knows or ought to know that his want .
of skill or of strength would be injurious to another.” If then aphysician or surgeon is liable for unskilfulness or negligence inprescribing for or operating upon a patient, I do not see why inprinciple he should not be equally liable for unskilfulness ornegligence in pronouncing as to the soundness of a horse whichhe is retained to examine and report upon in order that hisopinion may form the basis of a purchase by his employer. Inthe present case the defendant’s skilfulness is not impugned; heis a duly qualified veterinary surgeon. But the learned Commis-sioner has found him guilty of negligence, of not duly exercisingthe professional skill he possessed. His honesty and good faithare not questioned.For the reasons given at length by my
brother Middleton I agree with him in holding that plaintiff hasfailed to prove the negligence alleged, the proof establishing thatdefendant made a careful examination of the horse before formingan opinion as to its unsoundness.
Mr. Sturgess’s evidence, based on a subsequent examination, isnot conclusive proof that there must have been negligence ondefendant’s part.
The decree appealed from will therefore be reversed and theaction dismissed.
I agree with my brother in his order as to his costs.
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