ABSTRACT
In Hunter v Hanley 1955 SC 22, a Scottish case, which preceded Bolam by two years and may well have been the source of the Bolam approach, the so called ‘customs test’ – whereby a defendant‘s conduct is tested against the normal usage of his profession or calling – was endorsed. There it was said that:
Mason and McCall Smith (1999) point out (p 224) that there is a problem with this definition, simple and attractive as it sounds. This is that, if there is ‘usual and normal practice’, for instance, where are there are guidelines covering a procedure, then the plaintiff and defendant may have recourse to these guidelines or circulars which will be examples of current best practice and compare them with the professional conduct in question in any given case. However, if there is more than one opinion (both being ‘expert’ or ‘authoritative’) on a procedure or technique that should be followed, the existence of more than one course of action available to the practitioner means that there is no single ‘established custom’ or ‘usual practice’. The question would then arise: what is the practitioner’s liability if she chooses a course of action which one responsible body of opinion would reject, but which another would support?
