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MARA University of Technology

LAW037 INTRODUCTION TO LAW II


Lecturer: Madam Nurezan
Group Assignment
ADVERSARIAL SYSTEM
CLASS: LWP02A
Group Members:
SABREENA BINTI MOHD SAB (2015890442)
SHAHEERA AQIELA BT MOHD SUHAIMI (2015838114)

TABLE OF CONTENT

NO.
1.
2.

CONTENT
Historical background and definition of Adversarial System
Elements of Adversarial System
2.1 Role of Individual
2.2 Role of Legal Representation

PAGE
3

4
5

2.3 Role of The Judge and The Burden of Standard of Proof


6
3.

The need for rules of evidence and procedure


3.1 Rules of procedure
3.2 Rules of evidence

4.

7
8

The advantages and disadvantages of Adversarial system


4.1 Advantages of Adversarial System

5.

The differences between Adversarial system and Inquisitorial

9
10
11-14

6.
7.
8.

system
Examples of cases in Adversarial System
Bibliography
Appendices

15-16
17-18
19-22

4.2 Disadvantages of Adversarial System

1. HISTORICAL BACKGROUND AND DEFINITION OF ADVERSARIAL SYSTEM

The laws aim to provide society with peaceful ways to resolve conflicts between individuals. Conflicts
may be dissolved in various methods, but only the most serious case will be heard in the court. The
Adversary system was established in England and has developed over most of the countries in the world.
It is used in most countries that were settled by British. These countries are known as common law
countries and include Australia, New Zealand, Canada and India. It is also being adopted in other
Common law countries including England, United State and also Malaysia. 1
The word `Adversary refers to an opponent. The concept is that two opposing parties fighting for the
truth in the court. It resolves dispute in the same way as how a debate is being conducted as it relies on
the skills of different lawyers representing their partys position. Each lawyer prepares and presents a
case for or against a point in issues. The Adversary system also known as the accusatorial system, as it
involves one party accusing another party. In Malaysia, the core concept of litigation is the adversarial
system, whether in civil or criminal case. For example, in a criminal case, it involves public prosecutor
and an accused person while in a civil case, it involves a plaintiff and a defendant.
In Malaysia, the use of Bahasa Malaysia in courts is a requirement under section.8 of the National
Language Act 1963/67. The use of Bahasa Malaysia also has impact on the adversarial system. The use of
this language will be good in the examination of witnesses who in most instances may not understand
English. The use of Bahasa Malaysia will help the public to understand the trial as the presence of the
public in the court showcase the scrutiny of the court system by the people. 2

1 Theodore F.T.Plucknett, A Concise History Of The Common Law (1956)


2 Abdullah, N. C. (2004). Questions & Answer on MALAYSIAN COURTS,STATUES,
CASES & CONTRACT. TORT AND CRIMINAL LAW (REVISED ed.). Selangor, Batu
Caves: SS Graphic Printer.

2. ELEMENTS OF ADVERSARIAL SYSTEM


2.1 Role of Individual
In the adversary system, the individuals or the parties are the one who determine the issue and
provide evidence to prove their claims. The parties are responsible in initiating the case. In a criminal
case, the prosecution will initiate a case against the defendant. The decision is based on the evidence
presented to them by a law enforcement office such as police officer and transit officer. In a civil case, it
is up to the plaintiff whether to bring the case to the court or not. The plaintiff will initiate the case based
on the writ or summons.
The parties will also have prepare and present the case to the court. In criminal case, the defendant
will have a choice of pleading guilty or not guilty. If the defendant plead for not guilty, the defendant will
have a chance to presence the case in their defence. They may rebut to the evidence presented, or plead
guilty to some charges and not others. In civil case, the plaintiff will decide the relevant points of
common law to be decided by the court and the relevant facts related to the issue.
The parties also play a role in deciding the time and place for the trial. For instance, in civil case the
plaintiff may elect to have the case heard by a judge or a jury if the case is to be heard by the Country
Court or by the Supreme Court.
By giving the parties to a dispute a complete control of their own cases is to protect the rights of the
individual. This is because, if the State were give a complete control over the court case, the rights of the
individuals might not be fully protected because the State might not consider the matter to be much
importance and not pursue the case to the extent as the individuals would. 3

3 Halen Stacey and Michael Lavarch, Beyond The Adversarial System ( 1999)

2.2

Role of Legal Representation.

Under the English `cab rank rule, the legal profession should comprise independent lawyers.
Otherwise, the case would not be presented effectively in the court. In both civil and criminal cases, it is a
responsibility of the individual to employ a legal representative. The council will play a dominant role in
the court. If a person does not hire a lawyer for his case, he may be at disadvantaged because the lawyers
they are the expert of the law retained by the parties in dispute.
The counsels should be able to present a more persuasive argument than an individual who does not have
a representative and prior experience with the court processes. The counsels should not have any other
objectives such as having interest in the case, except to win the case ethically and fairly. Counsels should
not tamper with the witnesses or admit false evidence.
The counsels must also not be controlled by any organization or association. This rule has been adopted
in Malaysian Legal Profession Act 1976 but has not been wholly accepted by the government. However,
in Malaysia, this rule is observed in the sense that a lawyer is not permitted to work in a company or with
anybody except a law firm in order to prevent the lawyer from being controlled by the client.
On the other hand, as compared to Malaysia, independence in the adversarial system in England is
greater. A barrister is not allowed to perform a partnership so that he not need to worry about the financial
performance of the rim which might lure him in doing acts unprofessionally in order to gain profit.

4 Nuraisyah Chua Abdullah, Questions & Answers on Malaysian Courts, Statutes,


Cases & Contract, Tort and Criminal Law ( 2004) .

2.3 Role of The Judge and The Burden of Standard of Proof


In adversarial system, the function of the judge is to play a passive role and his duty is to conduct the
trial, to observe the relevancy of evidence and its discovery. The truth from civil or criminal case can be
derived from the facts. The judge is not to say anything which might suggest bias to a party.5
The judge is also responsible in ensuring that the both parties obey the rules of court procedures. The
most important rules are the rule of burden of proof. In criminal case, the burden of proof to proof on the
truth of something is on the prosecutor, where he must proof that the accused has committed and offence.
while in civil cases, the burden of proof is on the plaintiff to proof their claims towards the defendant.
The burden of proof requires the accuser to fulfill two responsibilities, first is to prove that the facts
giving rise to the offence actually occurred and second is the present evidence that substantiates the
existence of the facts in issue and fulfill the onus of proof. Therefore, the judge has to ensure that the
parties who bears the burden of proving the case has legally satisfied the two responsibilities stated.
However, the judge must ensure that the standard of burden of proof has been discharged before the facts
of the case are decided. 6
In the case of Miller v. Minister of Pensions [1947] 2 A11 ER 372, Lord Denning held that the proof
beyond reasonable doubt need not reach certainty, but it must carry a high degree of probability. It does
not mean proof beyond the shadow of doubt. If the evidence is so strong as against a man as to leave only

5 Abdullah, N. C. (2004). Questions & Answer on MALAYSIAN COURTS,STATUES,


CASES & CONTRACT. TORT AND CRIMINAL LAW (REVISED ed.). Selangor, Batu
Caves: SS Graphic Printer.
6 Scott Turow, The Burden of Proof (April 5,2011)

a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but
not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will
suffice.

THE NEED FOR RULES OF EVIDENCE AND PROCEDURE

3.1 Rules of Procedure


This rule provides a framework for the presentation of the case. They established guidelines for the
presentation of arguments and evidence. The rules are important in order to make sure that individuals
are treated consistently and without bias. There are three processes in adversarial system. First is
examination in chief, second is cross examination and third is re-examination.
In examination in chief, the witness will be asked to give testimony in support of a particular facts alleged
by the party calling the witness. The purpose of asking the examination in chief is to get or to establish
the case theory such as the matters involved and the nature that is related to the case. In the second stage
of questioning, cross-examination seeks to nullify any damaging testimony given by an opponents
witness and to gain supporting material for the cross examiners case. The lading question (question that
suggest a particular answer directly or indirectly) can be asked in this stage. While in the re- examine
process questions are aimed at the clarification of any points that may have become obscured by the
cross-examination. As a rule, new matters cannot be introduced in the re-examination unless by special
leaves granted by the judge.
During an adversarial trial, a judge may be asked to give a ruling on matters of procedure or evidence. If
such questions arise after the trial has started, the judge will need to hear the submission from both party
and then only making a ruling. These submission are heard by the judge and , in the case of a jury trial,

7 See Miller v. Minister of Pensions [1947] 2 A11 ER 372,

without the jury being present. During this time, the jury will be sent to the jury room or temporarily
excused.8

3.2 Rules of Evidence.


The rules of evidence are an essential feature for adversary system. This evidence consist of the sworn
testimony of witnesses. It may also include exhibits, such as documents or items of physical property. If
exhibits are to be used as evidence, a witness must authenticate them. The aim of the rule is to ensure the
evidence considered by the court is admissible and relevant.
The evidence should be relevant to the facts in issue, legally obtained and the most is reliable. Fot
witnesses, they can only give evidence about facts that they know to be true. A witness must provide a
factual account in answer to specific questions. They cannot give personal opinion unless if the court
recognize that the witness is an expert. Expert evidence consists of the educated inferences drawn by the
expert witness from a set of circumstances. Expert is only admissible when the questions asked are
within his field of expertise. Examples of expert witnesses are doctors, engineers, forensic scientists and
more. 9

8 Nuraisyah Chua Abdullah, Questions & Answers on Malaysian Courts, Statutes,


Cases & Contract, Tort and Criminal Law ( 2004) .
9 WESLEY M. OLIVER, Professor of Law and Associate Dean for Faculty Research and
Scholarship, Duquesne University School of Law, Evidence: Common Law and
Federal Rules of Evidence, Seventh Edition (2015) .

4. THE ADVANTAGES AND DISADVANTAGES OF ADVERSARIAL SYSTEM

4.1 Advantages of Adversarial System


In adversarial system, the parties, acting independently and in partisan fashion, are responsible for
uncovering and presenting evidence before a passive and neutral trial judge or jury. Other than that, the
actors in adversarial system are equal and opposing parties, while in an inquisitorial system, the accused
is thus not a party to proceedings to the same extent. 10
Besides, in the adversarial system, all the evidence will be brought into the court to be tested for its
accuracy by the examination-in-chief, cross examination and re examination of the evidence by
each party. The dispute is decided by an independent judge who gives the public confidence in the legal
system. The continuous trial helps to speed up the resolution of the dispute for what it is truly said justice
delayed is justice denied. The process of law mentioned above is regarded as the most appropriate
method to attain justice.11
In adversarial system, each party is empowered to discover the truth, acting out of self-interest to present
the best case and win. They have the power to control their own case, which gives individuals access to
the legal system and basic democratic right to defend oneself is upheld.
Last but not least, the dispute is decided by an independent judge. Court is regarded as an umpire as both
parties will contest and court will apply justice in fair and conducive manner. The accused may silent as
prosecution. Both lawyer for the parties may present in court. Any evidence brought to court is tested
accuracy. 12

10 See B De Smet [ The Inquisitorial method of investigation in the dock] (1995)


11 See eg in e Whitton, The Cartel, Lawyers and Their Nine Tricks (1998)
12 Nuraisyah Chua Abdullah, Questions & Answers on Malaysian Courts, Statutes,
Cases & Contract, Tort and Criminal Law ( 2004) .

4.2 DISADVANTAGES OF ADVERSARIAL SYSTEM


There are always two sides of coins. Similar to other systems, the adversarial system might as
well have its own disadvantages. The advantages are first, emphasize on legal arguments in court. As
much emphasis is placed on legal arguments in court, skilled lawyers are very influence and highly
regarded. The parties seek the best lawyers and they can in turn, charge high fees.
Next, the adversarial system is a burden the client. This is because, in order to proceed the case in
the court, the client must hire a legal representative to present the case in the court. The experienced
lawyers may have the upper hand in the litigation process but not for just reasons. Therefore,
successful court action is often expensive.
Sometimes, justice is out of the price range of those who cannot afford it. Not all evidence may be
brought to the court because the more the evidence, the longer it drags the time for the lawyers to
settle the case, therefore, the fees for the lawyer tend to be increased. When the evidence not fully
disclosed or shown, it will affect the judgment made by the court. The significant delay in courts
proceedings is due to the loss of evidence, and the non-availability of witnesses. Thse are the
problems faced in the adversarial system. 13

13 Nuraisyah Chua Abdullah, Questions & Answers on Malaysian Courts, Statutes, Cases &
Contract, Tort and Criminal Law ( 2004) .

10

5. THE DIFFERENCES BETWEEN ADVERSARIAL SYSTEM AND INQUISITORIAL SYSTEM


NO
1

ADVERSARIAL SYSTEM

INQUISITORIAL SYSTEM

APPLICATION

Common law systems have


decided that the adversarial
system method is the way to
expose both sides of a dispute
and to get the truth

The judges take the lead in


France and other European
countries. For example, in
the civil law system

ROLES OF THE
PARTIES

The parties are the ones who


determine the issue and
evidence to prove their
claims. This indeed shows the
active role of the parties in a
trial and particularly the
counsels who play the
dominant roles. The counsels
control the court because they
are the experts of the law,
hired by the parties in
dispute. They do not have
any other objective such as
having interest in the case,
except to win it ethically and
fairly. Counsels should not
tamper with the witnesses or
admit false evidence.

The parties are not playing


an active role in the trial as
the judge controls the trial
and sets the agenda in the
courtroom

ROLES OF
LAWYERS

As much emphasis is placed


on legal arguments in court,
skilled lawyers are very
influential and highly
regarded. Thus, most of the
common law barristers
primary goals are not the
pursuit of the truth and

Lawyers and judges work


together, in order to achieve
a just result.

11

justice, but rather to put the


best arguments for their
clients in order to gain
influence over the litigation
process and win

FUNCTION OF
JUDGES

The function of the judge is


to play a passive role and his
duty is to conduct the trial the
trial, to observe the relevancy
of evidence and its discovery.
For example, he is merely an
adjudicator on the dispute.
The truth in a civil or
criminal case can be derived
from the facts. The judge is
not to say anything, which
might suggest bias to a party,
for example, by assisting one
party. However, judges are
severely restricted in their
capacity to ensure the
delivery of justice.

Much of the burden of


extracting the relevant facts
and controlling the conduct
of the parties fall upon the
career of the judge who is
specifically trained for that
purpose.They participate in
the process by crossexamining witnesses and
whenever necessary,
directing the calling of
witnesses themselves for
questioning, or experts for
opinions. Trained judges
supervise police
investigations. The role of
the judge is to discover

12

INVESTIGATIO
N

The responsibility for


gathering evidence rests with
the parties (the Police and the
defence).

The typical criminal


proceeding is divided into 3
phases, the investigate phase,
the examining phase, and the
trial.
In the investigative phase, a
government official
(generally the public
prosecutor) collects evidence
and decides whether to press
charges. Prosecutors carry
out investigations themselves
or request Police to do so.
The prosecution can give
general instructions to the
Police regarding how
particular cases are to be
handled and can set areas of
priority for investigations.
In some inquisitorial
systems, a Judge may carry
out or oversee the
investigative phase.

COSTS

As the parties themselves are


in the control of the case, the
case would the be subjected
to adjournaments, according
to the availability and
convenience of the parties ,
witnesses and others that
causing an increase in the
cost. Morever, the parties
seek the best lawyers and
they can turn, charge high
fees. The experienced
lawyers may have the upper
hand in the litigation process

The control of the court will


limit he costs, and the delay
of the judgement in the
court. This is particularly
important where a huge
volume of disputes about
relatively small sums has to
be decided.

13

but not for just reasons.


Therefore, successful court
action is often expensive.
Sometimes, justice is out of
the price range of those who
cannot afford it. Some people
refer to the adversarial
system as a contest of
advocates where justice is a
poor relative.
7

EXAMINATION
IN THE COURT
ROOM

Any evidence brought into


the court is tested for its
accuracy by the examinationin-chief, cross-examination
and re-examination of the
evidence by each party and
by the judge.

The evidence and witnesses


are not brought to the trial
for the processes of
examination as such. The
evidence is submitted and
analysed by the judge while
witnesses could not be
questioned in an adversarial
way by the opposite party.
All the stages of examination
involved in trial re handled
by the judge, who controls
the running of the trial.

RULES OF
EVIDENCE

Evidence which is prejudicial


or of little probative value, is
more likely to be withheld
from juries (who dont have
training on the weight that
should be given to certain
evidence). However, hearsay
evidence is more readily
allowable if it is reliable.
A significant category of
inadmissible evidence is
hearsay evidence (with
numerous exceptions). In
New Zealand, a hearsay
statement is defined in the
Evidence Act 2006 as a

The rules around


admissibility of evidence are
significantly more lenient.
The absence of juries in
many cases alleviates the
need for many formal rules
of evidence. More evidence
is likely to be admitted,
regardless of its reliability or
prejudicial effect. Evidence
is admitted if the Judge
decides it is relevant.
In many inquisitorial
systems, there is no hearsay
rule (eg, France, Belgium
14

statement that was made by a and Germany). It is up to the


person other than a witness
Judge to decide the value of
and is offered in evidence at
such testimony.
the proceedings to prove the
truth of its contents.
At the heart of the hearsay
rule is the idea that, if the
court is to discover the truth,
it is essential that parties have
the opportunity to verify the
information provided by the
witnesses, which is difficult
to do if the court receives
evidence in writing or via a
third party (and are therefore
unable to cross-examine the
person).

10

BINDING
FORCE
CASE LAW

Previous decisions by higher

OF courts are binding on lower

courts.

ORGANISATIO
Adversarial systems have
N
OF
THE courts of general jurisdiction
COURTS
available to adjudicate a wide

range of cases

Traditionally, there is little


use of judicial precedent
(case law). This means
Judges are free to decide
each case independently of
previous decisions, by
applying the relevant
statutes. There is therefore
heavier reliance on
comprehensive
statutes/codes of law.
Civil law systems tend to
have specialist courts (and
specialist appeal courts) to
deal with constitutional law,
criminal law, administrative
law, commercial law, and
civil or private law.

15

14

6. EXAMPLES OF CASES IN ADVERSARIAL SYSTEM


Case. 1

WONG THIAM PHIN v. LABUAN FERRY CORPORATION SDN BHD & ANOTHER
CASE
Breach of Contract
Issue :
Breach of Performance of contract. Allegation of inducement by defendant to breach contract between
plaintiff and another company - Claim for damages - Plaintiff owned and operated lorries or trailers that
transport goods - Third party provided ferry services - Charges for use of ferry services unilaterally and
unlawfully increased - Plaintiff complained about increase of charges and later denied from ferry services
- Plaintiff could not transport goods - Whether defendant abused power as sole operator and sole
monopoly of ferry services - Whether defendant induced breach of contract between plaintiff with goods
company
The issues highlighted for the court's adjudication were (i) whether the common law of prime necessity
applies in Malaysia; (ii) whether the defendant was the sole provider of the essential services and if yes,
whether the defendant was required to charge a reasonable price for the service provided; and (iii)
whether the defendant had interfered with the performance of the plaintiff's contract with Gold Coin.
JUDGMENT :
The parties have agreed that Suit LBN-22-7-4-2013 (referred to as the first suit) and Suit LBN-22-15-62013 (referred to as the second suit) be set down for joint trial. The plaintiff in the first suit has applied to
withdraw as the first plaintiff in the second suit and is the only plaintiff in the first suit against the
defendant. There are six remaining plaintiffs in the second suit against the defendant. The plaintiff in the
first suit shall be referred to as the plaintiff whereas the plaintiffs in the second suit shall be referred to as
the first, second, third, fourth, fifth and sixth plaintiff respectively. The same defendant in both suits shall
be referred to as the defendant.
The parties did not submit any bill of costs or any document in support of the disbursements incurred or
on the costs to be awarded at the end of the trial. Based on the issues raised in the two suits, the number of
witnesses who testified and on documents exhibited in the bundles of documents, it was not a complicated
case. Although the doctrine of prime necessity has not been decided in the country, the facts and the law
are straight forward. The trial lasted three days although parties requested four or five days to be set aside
for the trial. Based on these considerations, the plaintiff in the first suit is awarded costs of RM25,000
14 Nuraisyah Chua Abdullah, Questions & Answers on Malaysian Courts, Statutes,
Cases & Contract, Tort and Criminal Law ( 2004) .

16

including disbursements. In the second suit, costs of RM30,000 to the first, second, third, fourth, fifth and
sixth defendants jointly including disbursements.
15

Case 2 :

MOHD SHAMSUL ABDUL AZIZ v. PP & ANOTHER APPEAL


CRIMINAL DIVISION
Issue:
The first appellant and the second appellant were both charged under s. 302 of the Penal Code ('the first
charge') and s. 395/397 of the same Code. On 27 February 2010, the deceased had just come home from
the Surau when he was approached by a Malay couple ('the appellants'). According to PW12, the wife of
the deceased, the second appellant had asked for a pencil to write down the phone number of the owner of
the house next door to the deceased's. The second appellant had then followed the deceased into the house
and later followed PW12 into her bedroom without being invited to do so. It was alleged that the second
appellant had then taken the jewelleries belonging to PW12 without her consent. At about the same time,
the first appellant had also entered the house and was seen standing behind the first appellant with a knife.
PW12 then saw blood oozing out from the deceased's abdomen. Both appellants then fled the scene. The
deceased was pronounced dead a day after the incident due to stab wound to the abdomen.

Judgment:
Mohd Shamsul bin Abdul Aziz @ Abdul Azis ("the first appellant") and his sister, Tuti
Adayu binti Abdul Aziz @ Abdul Azis ("the second appellant") were both initially
charged under s. 302 of the Penal Code ("the first charge") and s. 395/397 of the
same Code ("the second charge"). upon the upshot, the court had dismissed the
appeal of the first appellant against his conviction for murder. They had also allowed
the appeal of the second appellant against her conviction for murder on the basis
that the prosecution had failed to show evidence that she had done act(s), which
had the effect of furthering a common intention of them both, to commit the murder
of the deceased. They had therefore acquitted and discharged her of that murder
charge against her. They had affirmed the conviction for murder against the first
appellant. His death sentence by hanging by the learned trial judge was also
affirmed by us.
16

15 referred to:Allnutt v. Inglis (1810) 12 East 527 (refd)


British Industrial Plastics v. Ferguson [1940] 1 All ER 479 (refd)

17

7. BIBLIOGRAPHY
1. Caenegen, W. V. (1999). Advantages and disadvantages of the adversarial
system in criminal proceedings (1st ed., Vol. 1, Ser. 1999). Retrieved
February 31,2016,from
http://epublications.bond.edu.au/cgi/viewcontent.cgi?
article=1223&context=law_pubs

2. Whitehouse v Jordan [1980] 1All ER 650, at 658


3. P.N. Jahn Kassim, Mediating medical negligence claims in Malaysia: An
option for reform, Malayan Law Journal Articles, vol. 2008(4), pp. cixcxxvi, 2008.

4. T. Douglas, Medical Injury Compensation: Beyond No-Fault, Medical


Law Review, vol. 17, pp. 30-51, 2009.

5. A. Matta, Informed consent in medical treatment: The need to bring


about rationality, in Issues in Medical Law and Ethics, P.N Jahn Kassim
and A.H Mohamed Abdullah, Eds. Kuala Lumpur: IIUM, 2003, pp. 17-27.

6. Foo Fio Na v Hospital Assunta & Anor [1999] 6 MLJ.


16 Case(s) referred to:Duis Akim & Ors v. PP [2013] 9 CLJ 692 FC (refd)
Khairul Edam Adam & Anor v. PP [1999] 2 SLR 57 (refd)

18

7. H.R. Abdullah, Court awards RM870,000 to couple and son over


medical negligence, The Star Online, January 21, 2011. Retrieved from
http://thestar.com.my/news/story.asp?
file=/2011/1/21/nation/201101211 41028&sec=nation.

8. Robertson, G.. (1981). Whitehouse v. Jordan. Medical Negligence Retried. The Modern
Law Review, 44(4), 457461. Retrieved from http://www.jstor.org/stable/1095344

9. WESLEY M. OLIVER, Professor of Law and Associate Dean for Faculty Research and
Scholarship, Duquesne University School of Law, Evidence: Common Law and Federal
Rules of Evidence, Seventh Edition (2015) .
10. Abdullah, N. C. (2004). Questions & Answer on MALAYSIAN COURTS,STATUES,
CASES & CONTRACT. TORT AND CRIMINAL LAW (REVISED ed.). Selangor, Batu
Caves: SS Graphic Printer.
11. Halen Stacey and Michael Lavarch, Beyond The Avdersarial System ( 1999).
12. Scott Turow, The Burden of Proof (April 5,2011)
13. See Miller v. Minister of Pensions [1947] 2 A11 ER 372,

19

8. APPENDICES
(1)

Maynard v West Midland Regional Health


Authority (1984) 1 WLR 634.
Clinical negligence
Doctors and other health professionals, of course, owe a duty of care to their patients.
This is well established. In most cases this duty arises in tort but can also arise in contract; for
instance if the patient is receiving private treatment from the doctor. In essence the duty is the
same whether it exists in tort or contract. This was decided in Thake v Maurice 1986 (1 AL ER
479).
Usually, however, claims are brought in tort as they originate from treatment provided by
the NHS and therefore do not involve contractual obligations between the parties.
The duty owed was determined in the case of Bolam v Frien Management Committee
1957 (1 WLR 582). In this case the Judge said, in addressing the issue of the standard of care
expected, The test is the standard of the ordinary skilled man exercising and professing to have
that special skill. He added, "A man need not possess the highest expert skills; it is now well
established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man
exercising that particular art.
Whilst on the face of it the above test is straightforward and says basically that in order to
be negligent or in breach of duty a doctors care must have fallen below the standard expected by
his peers; the test has caused confusion.
The client finds it difficult to understand the practicalities of the test and there are
different schools of thought among doctors as to what is appropriate treatment in a specific case.
This divergence complicates hearings because the Court is guided by medical opinion as
to the appropriate treatment and is not normally in a position to impose its own standard of care.
In the case of Maynard v West Midlands Regional Health Authority 1984 (1 WLR 634) the judge
said In the realms of diagnosis and treatment, there is ample scope for a genuine difference from
that of other professional men. The true test for establishing negligence in diagnosis or treatment
on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of
ordinary skill would be guilty if acting with ordinary care.
In essence this means that it would be possible for an expert to say that although he
would not have treated the patient in the way that the defendant did that treatment was in

20

accordance with a responsible body of medical opinion. The result would be that there was no
negligence or breach of duty; which would be quite unsatisfactory to the patient or his family.
Therefore, the decision in Bolitho v City & Hackney Health Authority 1997 (4 ALL ER
771) was a welcome development for the claimant. In this case the judge said, The Court is not
bound to hold that a defendant doctor escapes liability for negligent treatment or diagnoses just
because he receives evidence from a number of medical experts who are of the opinion that the
defendants treatment or diagnosis accorded with the current medical practice but rather the
Court has to be satisfied that the body of opinion relied upon can demonstrate that such opinion
was formed from a logical basis.
Once the hurdle of breach of duty has been overcome we must consider causation. This
can be particularly difficult in clinical negligence cases.
Firstly, an adverse outcome does not mean there was a breach of duty. There are risks
involved in medical procedures. For example, in cases where babies have been injured, there
may have been negligence during their birth or afterwards; but unless the link can be drawn
between breach of duty and the injury the claim will fail (see Wilsher v Essex Health Authoirty
1988 AC 1074 HL).
A claimant also needs to be able to establish causation on the basis that the breach of duty
materially contributed to the injuries sustained. In this context material means nonnegligible. This was decided in Bonnington Castings v Wardlaw 1956 (AC 613).
A claim in respect of reduced chances of recovery is likely to fail. To succeed the
claimant must show that a breach of duty caused the injury. Merely to establish that it reduced
the chance of a successful outcome is not enough (see Hotson v East Berkshire AHA 1987 [AC
750]). In this case there was a negligent delay of five days in diagnosing a fracture, which
resulted in a 25% reduction in the chance of a complete recovery and the claim failed. It was
hoped that the severity of the Hotson decision would be relaxed following the House of Lords
consideration of Gregg v Scott (2002)All ER (D). However, the Lords held in 2005 that the
principle should not be extended. Therefore, I conclude that causation remains one of the most
difficult aspects of all clinical negligence claims.
Limitation in clinical negligence matters is three years from the harm or knowledge of
harm (S14 Limitation Act 1980). The period begins to run from when the cause of action arose
but for some clinical negligence claims the period runs once the claimant has the knowledge of
the harm which will include an awareness that the injury was attributable in whole or part to the
act or omission which is alleged to constitute negligence or breach of duty and the claimant must
know the identity of the defendant. 17
17 Nuraisyah Chua Abdullah, Questions & Answers on Malaysian Courts, Statutes,
Cases & Contract, Tort and Criminal Law ( 2004) .

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(2)

WHITEHOUSE V JORDAN [1981] 1 WLR 246


For many years doctors have enjoyed the protection in law that Bolam
has brought and it is important to consider some of those cases that best
illustrate the scope of its effect upon clinical negligence litigation. In
Whitehouse v Jordan the Court of Appeal reversed a trial judges decision
that found for the claimant who alleged negligence in the performance of an
attempted trial of forceps delivery which left him permanently brain
damaged. The case was heard on appeal to the House of Lords which
wrestled with the concept of the non- negligent error of judgment, and with
Lord Dennings sweeping statement that in a professional man, an error of
judgment is not negligent. Lord Fraser of Tullybeaton effectively re-set the
position in law in alignment with Bolam:
If (the error) is one that would not have been made by a reasonably
competent professional man professing to have the standard and
type of skill that the defendant held himself out as having, and
acting with ordinary care, then it is negligent. If, on the other hand,
it is an error that such a man, acting with ordinary care, might have
made, then it is not negligent.
Hence doctors are allowed to make mistakes, so long as they are
mistakes that might be made by a responsible body of doctors with
equivalent skills and experience, exercising a reasonable standard of care. In
Maynard v West Midlands Health Authority it was established that doctors
also benefit from protection under Bolam for decisions that flow from a
clinical error. In this case the decision to undertake an exploratory
mediastinoscopy was based upon a mis-diagnosis of possible Hodgkins
disease, but it was a decision which, under the circumstances, was
supported by medical evidence. Lord Scarman confirmed that the law holds
no licence to prefer one experts opinion over another:
...a judge's preference for one body of distinguished professional
opinion to another also professionally distinguished is not sufficient
to establish negligence in a practitioner whose actions have
received the seal of approval of those whose opinions, truthfully
expressed, honestly held, were not preferred. If this was the real
reason for the judge's finding, he erred in law even though
elsewhere in his judgment he stated the law correctly. For in the

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realm of diagnosis and treatment negligence is not established by


preferring one respectable body of professional opinion to another.
Failure to exercise the ordinary skill of a doctor (in the appropriate
speciality, if he be a specialist) is necessary.
What is not clear is what McNair J meant in his Bolam dicta by
responsible for the word itself, contrary to how it has been interpreted in
law, does not quite conjure up the notion of majority, or indeed significant
minority. It would appear that no matter how small a minority adopt a
particular opinion, if that opinion is responsibly held it confers a valid
defence to liability.
This was explored further in De Freitas v O'Brien. The claimant in this
case underwent orthopaedic surgery to fuse two lumbar vertebrae, and a
second operation to correct the resultant complication of nerve root
compression. It was the performance of the second operation that was at
issue, an operation which led to leakage of cerebrospinal fluid, infection and
chronic disabling pain. The defendant surgeon called upon expert opinion
that existed within a small body of only eleven so- called spinal surgeons
practising in the UK at that time; opinion within this group of specialists was
always likely to differ from the larger body of over a thousand orthopaedic or
neurosurgical non-specialists. Although a responsible body of opinion does
not have to be substantial one, Otton LJ recognised the potential inequity in
attaching disproportionate weight to the opinion of a very small minority and
a defence in Bolam to which it thereby gives effect:
It was submitted that the Bolam test was not designed to enable
small numbers of medical practitioners, intent on carrying out
otherwise unjustified exploratory surgery, to assert that their
practices are reasonable because they are accepted by more than
one doctor. If it appears from the evidence that the body of medical
opinion relied upon by the defendant is both very small and
diametrically opposed in its views to the conventional views of the
vast majority of medical practitioners, the court should be vigilant
in carrying out its duty to test whether the body of medical opinion
relied upon by the defendant is a responsible body.
Notwithstanding the apparent anomaly that in civil cases the standard
of proof is the balance of probabilities while the Bolam test permits a
minority view to be determinative, Otton LJ was reluctant to dismantle Bolam
further for fear that it would degenerate into a head count of opinion:

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The issue whether or not to operate could not be determined by counting


heads. It was open to him to find as a fact that a small number of specialists
constituted a responsible body and that the body would have considered the
first defendant's decision justified
Nevertheless, the effect of De Freitas was to restore some measure of
judicial discretion in the interpretation of witness testimony in cases where it
is the minority view that holds sway. 18

18 Nuraisyah Chua Abdullah, Questions & Answers on Malaysian Courts, Statutes,


Cases & Contract, Tort and Criminal Law ( 2004) .

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