Unreasonable skill and care: do we expect too much in a soundbite world?

When I was at university each department produced a T-shirt with what we would now call a “corporate strap-line”, intended to convey the essence of their area of expertise. I have to confess that I can’t remember what the law department’s T-shirt said; we are talking over 30 years ago.

The best of all the T-shirts was from the psychology department which featured a pair of piercing blue eyes with the words “we understand you” printed below…

…People get quite nervous around psychologists, because they worry that they only need to talk to one for a few seconds for the psychologist to understand the inner secrets of their soul. In fact, the truth is that several hours are needed and, even then, there are some people who remain a bit of a mystery.

Expectation of immediate opinion

This is not something confined to psychology. The pace of modern life brings with it an expectation that people with expertise can provide answers quickly. This extends into public life and to people who are appointed to investigate something.

You will hear on the news that there is to be a “full inquiry”. The members of the inquiry team are appointed and immediately asked by the media for their opinion. The most sensible answer: “Well, this has only just happened.  I’m going to look into it carefully, consult widely and then, after mature reflection, decide upon the most appropriate action” does not seem to satisfy the media tiger.

If things go wrong

If things go wrong, people are criticised for not thinking enough. The banks, having been criticised for being too eager to lend, are now being criticised for being too reticent.

The law on professional negligence tries to find a middle way. In Eckersley v Binnie and Partners 1988 18 Con LR 1 the Judge said:

“…a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinarily assiduous and intelligent members of his profession in knowledge of new advances, discoveries and developments in his field. He should have such awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks inherent in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon, combining the qualities of polymath and prophet.”

But how careful is careful? Can you be so thorough and methodical that you are actually doing a disservice? Surely sometimes you can be so thorough and take so long that you defeat the object of what you are doing.

Can a judge go too far?

The issue of whether you can be so thorough that you actually do a disservice was recently canvassed in a novel context. A party appealed against the decision of a judge, who was asked to decide whether a doctor had been negligent.

In Manning v  Kings College Hospital NHS Trust the first-instance decision was appealed partly on the ground that:

“…the Judge’s prolonged and excessive questions of witnesses and his repeated interruptions…

(i) made it difficult for Counsel to maintain the flow of examination and cross-examination or properly and effectively to elicit the relevant evidence;

(ii) deprived the Judge of the advantages of calm and dispassionate observation and assessment of the witnesses;

(iii) unnecessarily increased and prolonged very substantially the length of the trial and thereby obfuscated the task of assessing the evidence and focusing on and determining the material issues and was unjust.”

Another ground was that the judge:

“…did not give his decision on the issues of breach of duty and causation for over eight months after the conclusion of the evidence, having informed the parties in the meantime that he had not made up his mind… “

The question here is just how careful should you be in an investigation. And once you have investigated how long can you spend deciding upon your answer? The unfortunate aspect of this case is that the claimant died before the judgment was delivered.

The Court of Appeal said:

“I would not encourage judges to think that questioning of the sort that went on in this case by the judge should be common place, but it is clear that what the judge was trying to do was to make sure he understood and could get an accurate note of the expert evidence that was being given in a case involving extremely complex medical science. …his questioning was not antagonistic… and, if sometimes searching, was no more so to the experts for the defendants than for the experts for the claimant. We were not referred to any occasion when counsel was prevented from putting their point or indeed any occasion on which counsel protested at the way the judge was asking questions. It may be with the benefit of hindsight it can be said the judge was making some unnecessary enquiries but it is clear that what he was doing was… to understand completely what he was being told and making sure he had an accurate note of what the witness was saying.

… it was true that the judge had taken nearly eight months to deliver his judgment. If this were an action involving findings of fact based on the evidence of witnesses of fact, or indeed a normal medical negligence action, that would seem an unacceptably long time. But, having been shown extensive sections of the transcript, and having read more than once the 256 pages of judgment, it is absolutely clear that this was not a normal case. It was being tried by a judge without great experience of medical negligence cases but, even an experienced judge, if he or she was to decide in particular the causation issue, would have had to steep himself in the detailed medical evidence and make sure he understood it. The fact that the judge could not give an indication of the result when he knew that [the claimant] would wish to know it, is actually an indication of the very great care he was taking to resolve a highly complex case. He ultimately wrote an absolutely comprehensive judgment dealing with each and every point in the most rigorous way. Some judges might have written a shorter judgment and not dealt with matters at such length but no-one could suggest that the judge did not face up to the difficult issues and exercise the greatest care in dealing with them.”

Right on time?

We are all familiar with the saying that “justice delayed is justice denied”.  But should justice be delivered “on time”, even if the judge is not confident that he has found the right answer?

As professional people we need to strike a balance between giving our advice in the timescale required and taking long enough to be as confident as we can be that our advice is correct.

Although the Court of Appeal supported the judge in this instance, it must be right that each case needs to be decided on its own merits.

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