problem for nurses that a finding of liability would constitute a mark of personal
failure. Whatever the perception of a medical negligence claim, fault is judged by
an objective standard, and persons found liable may not actually be at fault. In
moving the standard towards gross negligence Browne-Wilkinson's formulation
would make it harder also for the patient to recover compensation for injury.
This, in part, may explain why the two other judges in the Court of Appeal
preferred a more traditional pronouncement of theBolamtest. In the view of Lord
Justice Mustill the duty ought not to be assessed in accordance with the actor
performing the duty, rather with the act performed. The standard should be set
according to the post occupied. In the words of the judge:
`the standard is not just that of the averagely competent and well informed
junior houseman... but of such a person who fills a post in a unit offering a
highly specialised service.'Lord Justice Glidewell substantially agrees with this, saying that:
`In my view, the law requires the trainee or learner to be judged by the same
standard as his more experienced colleagues. If it did not, inexperience would
frequently be urged as a defence to an action for professional negligence.'The wording of both of these formulations is a little loose, but both are clearly
intended to indicate that where a person holds out as possessing the requisite skill
to provide a particular service, then the standard will be set in accordance with the
reasonable skill of the average competent professional ordinarily providing that
service. The case ofDjemalv.Bexley HA/1995) followed the judgment inWilsherin
discounting the actual experience of a senior houseman in an A&E unit in setting
the required standard of care.
8.3 Risk and precautions
Although the standard itself is `objective and impersonal' /per Lord MacMillan in
Glasgow Corporationv.Muir/1943)), the circumstances in which it is exercised
will be highly relevant in determining breach. This is well illustrated by a Canadian
authority /Moorev.Large/1932)). The case concerned the alleged negligence of a
doctor who had failed to X-ray the shoulder of a patient following that patient's fall
so that a dislocation of the shoulder was overlooked. The court could find no
negligence:
`It has not surely come to this that if the cause of the trouble is not apparent to
the eye of the surgeon or physician he must advise an X-ray or take the con-
sequences to his reputation and to his pocket for not having done so. Is the X-ray
to be the only arbitrator in such a case and are years of study and experience to
be cast aside as negligible?' [9]This would probably not be so today, but what has changed is not the availability
of X-ray /it was available in 1932) but societal expectations of the use of this device
in checking against the risk of a particular disorder. To take an X-ray in such
circumstances would now be almost standard practice although interestingly, with
134 NursingLawandEthics