Negligence claimant for duty of care to be

  Negligence often refers to behaviour that falls below the established standard which as a result inflicts harm to others. For liability in negligence, certain requirements have to be met before the courts which include: a duty of care is owed, that duty of care is breached, negligent behaviour resulted in actionable damage. This means that Hettie, as a result, has to fulfil this requirement to have a successful claim against Andy in negligence. Each of these stages has to be addressed individually, however, the main issue raised here is Andy’s breach of professional duty. The first element of negligence is actionable damage.  The most important aspect of the claim is to prove that Andy owed Hettie a duty of care. The principle for duty of care was first established in the Donoghue v Stevenson1 case where Lord Atkins developed the neighbourhood principle. This principle states that every individual is obliged to take reasonable care to “avoid acts or omissions which you can reasonably foresee would likely to injure your neighbour”. The concept of neighbour is the person who is “closely and directly affected by my act”. This principle evolved over time in Anns v Merton Borough Council 2 in which Lord Wilberforce developed the two-stage test. The first stages states that there must be “sufficient relationship of proximity or neighbourhood” between the defendant and the claimant for duty of care to be owed. The second stage of this principle places emphasis on policy arguments as to why the duty of care should not exist. However, this test has been criticised on many levels as test there is a presumption that duty of care exists unless there are clear policy objections as to why it shouldn’t. Consequently, the modern Caparo three-stage test was established as a result. Adopting the modern approach, the courts first look at precedent related to a case and if no precedent is found they apply three criteria of: reasonable foreseeability, sufficient proximate relationship between claimant and defendant and it is fair, just and reasonable for the courts to apply the duty of care. Applying this test here: the relationship between Andy and Hettie is in close proximity as they were neighbours and Hettie trusted Andy asking him to have a look at the radiators. Also, Andy owed Hettie a duty of care when he agreed to perform the task. Andy could have reasonable foreseen that his negligence could result in damage. In Hughes v Lord Advocate 3 the courts emphasised that as long as damage is foreseeable regardless of the type the defendant could be held liable. Hence, this brings in the question of whether Andy breached that duty. The courts use the objective test to determine the standard of care which could be breached. The defendant is expected to meet the standard of behaviours of any reasonable person as Lord Macmillan explains in Glasgow Corporation v Muir 4″the standard of foresight of the reasonable man is in one sense an impartial test…eliminates the personal and independent of the idiosyncrasies of the particular person whose conduct is in question.”  The legal standard of however, does not always correspond to the appropriate behaviour due to policy reasons. Within the context of driving in Nettleship v Weston, a learner driver was held to the same standards as a professional one. Lord Denning argued that the defendant was legally at fault as she was required to be insured which makes it only reasonable that she should bear the risks of the driving. However, the courts hold physical damage much more serious in terms of driving there is much more risk of physically injuring someone so perhaps that’s why the standard of care is high (Wagon mound no1).     Within a professional context, the standard of care is elevated the courts use the Bolam test to decide if the duty of care is breached. The first element of this principle is the defendant is expected to live up to the standards of an ordinary skilled member of the profession. In Wells v Cooper5 the defendant fixed the door handle of his back door, the claimant visiting defendant was injured while shutting the door as the handle fell off. The courts held that householders doing their own repairs will be held to the standard of a reasonable amateur carpenter. Andy, although he is an apprentice, is doing a task of a professional plumber, so therefore, will be held to the same standard of care as a professional plumber.  However, in Wells V Cooper the damage is physical and the courts see physical injury in a much more serious light than property damage.  So, arguably the court could adopt slightly lenient approach in this case as the damage Andy caused is property damage.  The second part of Bolam’s test is that the courts will not hold a person responsible if their conduct is regarded as proper by professionals in that field. In Bolam Lord Mcnair stated that the defendant will not be held liable if “he acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in a particular art.” Andy’s conduct is below the standard of a reasonable person in this field as it is not considered as “proper” by other professionals. Failing to meet this standard Andy breached the professional duty of care making him liable for the damage.  Hettie also has to prove that Andy’s conduct led to the damage caused to the property, both legally and factually. In terms of factual causation, the courts adopt the “but for” test. According to this test, on the balance of probability, Hettie has to prove that there was more than 50% chance of the damage not occurring “but for” the negligence of Andy. This principle was established in the case of Barnett v Chelsea and Kensington Hospital6 where the claimant had arsenic poisoning but the doctor at the emergency told him to see his GP the next day. The claimant died from the poisoning. The courts held that although the doctor was in breach of duty the claimant would have died anyway (expert opinions suggest that the poisoning was beyond repair), so, the doctor was not liable.  In conclusion, after satisfying these requirements of each stage Hettie can bring a claim against Andy for property damage. Andy suffering from the consequences of Dr Salt’s action Andy must establish that the doctor’s negligence has resulted in sustaining the damage. Therefore, each element of the negligent claim must be met which include: actionable damage, duty of care, breach of duty and causation. Due to the actions of Dr Salt Andy’s arm is now permanently deformed which is a form of personal injury. As established in Rothwell v Chemical & Insulating Co7 Lord Hoffman states “damage is an abstract concept of being worse off, physically…” As well as this it was emphasised that personal injury is actionable as long as the symptoms are visible. This is clearly the case here as Andy’s arm is permanently deformed resulting him in being physically worse off. Subsequently, Andy then has to prove that Dr Salt owed Andy a duty of care. Using the Caparo three-stage test of: reasonable foreseeability, sufficient proximate relationship between claimant and defendant and it is fair, just and reasonable for the courts to apply the duty of care. Holding a professional status Dr Salt should have reasonably foreseen the damage due to his expertise. in the Wagon Mound No1, it was established that as long as the damage is foreseeable regardless of what type the defendant is liable. Dr Salt should have foreseen there is a chance of the arm being broken (even if the chance is small) which means the X-ray test should have been performed. It is also said that the relationship of duty of care arises when the doctor agrees to see the patient (state the case) which means that the proximity of relationship between Andy and Dr Salt is close.  Once the duty of care Andy has to prove that this duty of care was breached. The courts apply the reasonableness test established in Blyth v Birmingham waterworks8 to establish the legal standard of care. The defendant’s conduct is judged against that of a reasonable person. However, the legal standard of care within professional setting is raised and therefore, the Bolam principle is used to establish professional standard of care. The essence of this principle is that “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…” However, the Bolam principle was overruled in Bolitho it was established that a doctor could be liable for negligence in regards of diagnosis and treatment despite a body of professional approving the action where the court believes opinion relied on was not reasonable or responsible. Adopting this here even if Dr Salt provides evidence that his action is in accepted “as proper by a reasonable body of professionals” in the medical field it could be regarded as illogical. This is due to the fact that he was aware that Andy fell hurting his hand, any reasonable doctor in Dr Salt’s position would have performed the x-ray test, to ensure that Andy’s arm is not broken. Dr Salt failed to meet this standard making him liable for the permanent deformation of Andy’s arm. As well as this, within the medical context Dr Salt had the duty to inform Andy of the danger of the X-ray and then it was up to Andy to give consent as he had the capacity to do so. In Montgomery v Lanarkshire Health Board9 the supreme courts emphasised that “the doctor is therefore under a duty to take reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments.” This means that no doctor of ordinary skills would fail to tell the Andy of the risks of the x-ray and perhaps the decision was not up to Dr Salt. Andy also has to provide evidence for the legal causation of his disability. The courts often adopt the “but for” test to establish causation: Andy has to prove on the balance of probability that there was 50% chance that the disability would not have occurred but for the negligence of Dr Salt. The authority for this principle comes from Barnett v Chelsea & Kensington hospital10. In case the courts held that the defendant would have still suffered the damage even if the doctor had taken all the precautions as the poisoning was so advanced. The facts of this case however, differs from Andy’s because if Dr Salt had taken all the precautions and performed the x-ray it would have been revealed that Andy’s arm was broken, therefore, could have prevented the loss. This, therefore, means that Dr Salt is legally liable for Andy’s disability, which means that Andy could sue him for breach of duty in negligence. 


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