Hunter v Hanley [1955] ScotCS CSIH_2 (04 February 1955)

Hunter v Hanley [1955] ScotCS CSIH_2 (04 February 1955)

In cases of alleged professional negligence by a doctor, liability is established only if it is proved that (1) there is a usual and normal practice, (2) the defender has not adopted that practice, and (3) the course adopted is one which no professional of ordinary skill would have taken if acting with ordinary care. The test is not 'gross negligence' but failure to exercise ordinary care and skill.

Citation
[1955] ScotCS CSIH_2
Parties
Pursuer: Hunter; Defender: Hanley
Jurisdiction
Scotland
Judgment Date
04 February 1955
Procedural Posture
Civil Appeal (note of Exceptions) / Appeal From Jury Verdict
Outcome
jury verdict set aside; new trial ordered
Legal Topics
Standard of Care, Gross Negligence, Duty of Care, Deviation From Normal Practice
Medical Negligence Professional Negligence Delict Standard of Care Gross Negligence Duty of Care Deviation From Normal Practice

Case Brief

Summary, issues, holding and outcome

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Parties

Hunter

Pursuer

Hanley

Defender

Procedural Posture

Civil Appeal (note of Exceptions) / Appeal From Jury Verdict

Legal Issues

  1. 1 What is the correct legal standard for establishing professional negligence by a doctor?
  2. 2 Is 'gross negligence' required to establish liability, or is ordinary negligence sufficient?
  3. 3 What must a pursuer prove to succeed in a claim of medical negligence based on deviation from normal practice?

Ratio Decidendi

In cases of alleged professional negligence by a doctor, liability is established only if it is proved that (1) there is a usual and normal practice, (2) the defender has not adopted that practice, and (3) the course adopted is one which no professional of ordinary skill would have taken if acting with ordinary care. The test is not 'gross negligence' but failure to exercise ordinary care and skill.

Court Disposition

jury verdict set aside; new trial ordered

Orders

  • Jury's verdict in favour of defender set aside
  • Case remitted for new trial