Essay: Law of negligence – problem question/scenario

The contemporary law of negligence law was established in the case of Donoghue v Stevenson by the House of Lords. Lord Atkin stated that “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.” The tort of negligence consists of three fundamentals; duty of care, breach of duty, causation and remoteness of the damage.
Mike
In the case in question, Mike fell down the stairs due to the negligence of the pub. The Compensation Act 2006 section 1, states that “considering a claim in negligence or breach of statutory duty, a court may determine whether the defendant should have taken particular steps to meet a standard of care (whether by taking precautions or otherwise).” This act imposes obligations on the Grumpy Badger Pub in terms of taking precautions of their safety measures, as well as, preventing slips and trips. The management at the pub are liable as they have failed to provide a safe environment nor, had adequate warning signs to prevent harm from the stairs. Hence, there has a been a breach of negligence. However, the Occupier’s Liability Act (1957) also outlines the duty of care that provides a safe environment for the staff and customers at the premises. Therefore, the pub’s negligence was the underlying cause of Mike’s injuries.
The junior doctor Wally believed his injuries were merely external but, had serious internal injuries to his kidney and liver. The standard duty of care of a doctor towards the patients is an established duty. As a doctor Wally advised Mike to go home and rest. There is exposure that Wally is in breach of liability. In the case of Bolam v Friern , the House of Lords stated, “a medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.” According to medical negligence, he failed to take medical history of Mike knowing he suffers from liver and kidney damage. He also, failed to carry out medical investigation in terms of scans, blood tests despite knowing the severity of his internal injuries. Most importantly, Mike was not admitted for medical attention but, Wally sent him home. This imposes negligent measures on Wally as he did not act according to the medical practice.
In addition, to the case of Bolam v Friern , the standard of professional is judged by the standard of the ordinary skilled person professing to have that special skill. However, the House of Lords highlighted that it was for the court, and not for medical opinion, to decide the standard of care required in each case not only by having of special skills. As a junior doctor he practically failed to carry out medical examination of Mike appropriately, as his judgement of the injuries led him to believe it was merely external but, failed to distinguish the seriousness of his internal harm. Therefore, in the case in question, as this is the exception of the objective standard, the courts could decide the standard of care requisite. Mike could be held guilty of negligence as the standard of his profession could be considered equally as a fully qualified doctor.
Moreover, in the case of Nettleship v Weston , it was held that a learner driver is expected to meet the same standard as a reasonable qualified competent driver. Likewise, according to the judgement of the House of Lords in the case of Wilsher v Essex , “a doctor occupying a particular role was obliged to meet the standards of the role. The personal inexperience, or covering for a more senior clinician, was irrelevant.” This implies that junior doctors owed the same duty of care as a qualified doctor. Mike could potentially establish causation due to the lack of medical supervision and breach of standard of care owed by Wally.
Most importantly according to, Cassidy v Minister of Health, the hospital authorities are also responsible for ensuring that they have a suitable team of professionals in place. The A&E service at the Bogside hospital, had only one doctor on duty; that implies they can be held responsible. According to the judgement in Cassidy , the conduct of the hospital has failed to ensure they have doctors available to their patients for emergency services. Therefore, Mike satisfies the test for causation in negligence.
On the other hand, his unreasonable conduct was a novus actus interveniens that led to the chain of causation being broken. It is demonstrated in the case of McKew v Holland, that the claimant had taken a risk that could not be foreseen, and the defendant was not held liable for the injury of his ankle. Lord Reid defined that an injured person should act reasonably and carefully in his recovery. It could be reasoned that Mike was advised to go home, and rest yet, acted unreasonably.
Under the Law reform (Contributory Negligence) Act 1945 section 1, it is stated that “where any person suffers damage as the result partly of his own fault and partly of the fault of any other person, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable shall be reduced.”
In relation to the case in question, Mike contributed to his injuries as he failed to take care of his safety due to falling off the bike; severely injured his liver. Although, he was sent home to take rest, he was heedless. Thus, in order to determine contributory negligence, it is required by the defendant to demonstrate that the claimant failed to take safety precautions and the failure to take care was a contributory cause of the injuries suffered. It is illustrated by Bucknill J, “when one is considering the question of contributory negligence, it is not necessary to show that the negligence constituted a breach of duty to the Defendant. It is sufficient to show lack of reasonable care by the Plaintiff for his own safety.” Furthermore, Lord Denning stated, “a person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man…” Thus, Wally could dispute that Mike failed to take safety precautions, and the failure to take care was a contributory cause of the injuries suffered.
As his liver was already in a terrible condition due to excessive drinking, this also imposes a contributing negligence on him. Mike’s excessive drinking has deteriorated the condition of his liver, although falling off the bike has made a severe impact on the overall condition of his liver. Hence, Mike is contributory negligent due to excessive drinking in reducing the probability of his life beyond the age of 30.
Therefore, it is sufficient to prove that Wally has been negligent towards Mike due to the standard of duty of care required by him. On the balance of likelihoods, the negligence of the pub’s stairs caused the injuries that had materially contributed to Mike’s injuries; thus, causation is established. Additionally, the misconduct of the hospital could also be attributed as they failed to have additional doctors available. However, due to Mike’s contributory negligence it does not defeat his claim entirely, although his damages are likely to be reduced.
Theresa
The duty of care is established as Wally owed care as a medical professional, that has the obligation of taking care of his patients. However, the breach duty of care does not exist as he attended Theresa’s arm professionally, although it was set incorrectly. A breach of duty would have occurred if Wally failed to fulfil his duties of care in a dominant approach under the law of medical negligence. The current law is the Caparo test which Lord Bridge’s developed for imposing a duty of care. That comprises of three stages; foreseeability, proximity, and fairness .
The first part of the Caparo test foreseeability can be established through special knowledge and experience. In this case, Wally is a medical specialist with special skills and qualifications, he has to conform to the standard of care expected and satisfy his duties towards his patients. In the case of Bolam v Friern , a patient was treated for psychiatric problems, but still had an electric shock. The court ruled in favour of the doctor as this was a practice that was in accordance with other professionals. It developed a test where a man did not need to possess the highest expert skills. This case applies to Theresa, as the medical opinion states that there would have been a 40% chance of a trapped nerve even if the arm had been set correctly. Furthermore, all the doctors agree that the cause of trapped nerves are difficult to determine, and a variety of factors could have been the reason.
It has been illustrated in the case of Hotson , that the delay had not deprived the plaintiff of a cure on the balance of probabilities; there was a 25% chance that he would have recovered if treated properly, but a 75% chance that he would not. Furthermore, in the case of Gregg v Scott the doctor reduced his chances of survival for more than 10 years from 42% to 25%. The rule of Hotson implied that the claimant would have died regardless as it was more likely than not; thus, did not satisfy the balance of probabilities.
The second stage of Caparo is established as proximity between Theresa and Wally exists. In Hedley Byrne v Heller , a duty of care arises where there is a “special relationship” between the two parties. In the case of Nettleship v Weston , the claimant was considered negligent as her own act resulted in damage. This relates to Wally as he could be held negligent due to acted below the expected expertise standard by setting Theresa’s arm incorrectly. Prior to the case of Caparo, in Anns v Merton, Lord Wilberforce developed the two-stage test that states “first one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity. Secondly, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise.”
The third stage of the Caparo test involves establishing whether it would be fair, just and reasonable to claim that Wally owed a duty of care to the Theresa. The second element of the test was satisfied on these facts. However, it would be unfair, unjust, and unreasonable to place a claim against the hospital on the basis that duty of care can be established. Wally cannot be held liable as all doctors agree that trapped nerves are challenging to determine, it could not have been the outcome of the fall. therefore, it could be challenging for Theresa to prove her claim in negligence against Wally/ the hospital.
To conclude, in Mike’s case, his claim in negligence is likely to succeed in an action against the pub and the hospital. Mike has the possibility of suing the pub and getting a compensation for his injuries due to their negligence they failed to provide protection from accidents and a safe environment at their premises. As well as, he could claim against the hospital’s conduct, as they failed to have qualified doctors/ more than one doctor on duty. Moreover, his claim for compensation for his injuries as well as, medical care aid or any medical treatment for instance; liver transplant that he may need is also likely to succeed. Although, his damages could be reduced due to his contributory negligence, he is entitled to a compensation claim.
On the other hand, Theresa’s claim in negligence against the hospital is unlikely to succeed due to the reasons established. Thus, she could claim damages as there was a chance of her nerve being trapped regardless of her arm being set correctly. She could be entitled to claim up to 40% of compensation based on the lost chance.