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Published: Fri, 02 Feb 2018
Legal action on behalf of tom
Tom was knocked down by Jim and subsequently has died later. Hence, Tania (Tom’s wife) (or his Estate) may bring a legal action on behalf of Tom against Jim under the tort of negligence. According to Lord Wright in Lochgelly Iron and Coal Company v M’Mullan, in order for the defendant to be liable in negligence, there must be a duty of care to the claimant and breach of that duty by the defendant, and such breach caused damage to the claimant.
Tania must firstly show that Jim owes a duty of care to Tom as the ‘duty’ is the core ingredient of the tort. Thus, if there is no duty owe to Tom by Jim, there will be no liability under the tort of negligence for Tom even if Jim has carelessly caused the damage. By applying the singular composite test in Caparo Industries plc v Dickman, a duty will arise if it was reasonably foreseeable that the conduct of the defendant will cause damage to the claimant; there must also be sufficient of “proximity” between the parties; and, the situation must be one in which the court considers it fair, just and reasonable that the law should impose a duty of care of a given scope on the one party for the benefit of other. Lord Bridge stated that the foreseeability, proximity and fair, just and reasonable were nothing more than convenient labels. It is necessary to look at the traditional categories first, where the duty relationship is well-established. Such singular composite test is only relevant in novel situation where it is doubtful whether there should be a duty relationship. In Fardon v Harcourt-Rivington, Lord MacMillan stated that users of the highway owed a duty to each other that they do not injure each other. The mere circumstance of their being on highway brings them into a relationship with each other from which relationship arises the duty to have regard for each other’s safety. Thus, it can be said that there is a duty of care between Jim (lorry driver) and Tom (cyclist).
Having established that Jim owes a duty to Tom above, Tania must now then show that Jim has breach such duty. The test for deciding whether there has been a breach of duty is laid down in Alderson B. in Blyth v Birmingham Waterworks Co., where “negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” In other words, the test is objective and the question is not “did the defendant do his best?” but “did he come up to the standard of the reasonable man?” In Nettleship v Weston, the claimant was injured while teaching the defendant (a driving learner) to drive a car. The Court of Appeal held that the defendant was negligent. Lord Denning MR stated that the learner driver may be doing his best, but his incompetent best is not good enough. He must drive in as good a manner as a driver of skill, experience and care. Even a driving learner is expected to come up to the same standard as experienced driver, logically, Jim a lorry driver who has a driving license must also come up to the standard as experienced lorry driver too.
In order to determine whether Jim has come up to the reasonable man’s standard of care, as identified by Mr. Rogers, the courts will generally take into account the magnitude of risk; the importance of the object to be attained and practicability of precautions.
There are two elements to make up the magnitude of the risk, the likelihood that injury will be incurred and the seriousness of the injury that is risked. In Bolton v Stone, Lord Reid stated that a reasonable man do in fact take into account the degree of risk and do not act upon a bare possibility as they would if the risk were more substantial. This can be clearly seen in Hilder v Associated Portland Cement Manufacturer Ltd, the defendant has permitted the children play football on his open land which is close to the road. One of the boys kicked the ball onto the road and caused the claimant’s husband to have an accident in which he was killed. The court held that the defendant was negligent as the risk of injury to the road user was so high and without having taken any additional precautions. In Paris v Stepney Borough Council, the court held that even if the likelihood of the harm occurring is small, but the event of it materializes it would give rise to serious injury, the defendant must take additional precaution because that is what a reasonable man would do. Based on the facts given, it can be argued that by Jim driving the lorry too fast, especially when reaching the bend, the likelihood of injury the other road user will be greater than driving a normal speed. Besides, a reasonable person who drives so fast will also slow down his driving speed when reaching a bend as to prevent such great magnitude of risk of injury the other road user occurs.
As a matter of the importance of the objects to be attained, Asquith L.J stated that the purpose to be served, if sufficiently important, justifies and assumption of abnormal risk. In Watt v Hertfordshire CC, the court held that where the defendant took a course of action in a state of emergency the standard of care required must be judged in the light of the emergency. He would not be liable if he made a reasonable decision although in hindsight he could have taken a different course of action which might have prevented the harm. Although Jim was in a hurry of sending a consignment, he is not able to rely on Watt’s case as the facts do not seem to suggest that Jim was sending it in the state of emergency. Moreover, Lord Denning LJ makes clear that such situation is not applicable for commercial purpose as commercial end to make profit is very different from the human end to save life or limb.
The law does not expect that Jim have to take absolute precautions, but Jim must take the precautionary steps that the reasonable man would have taken to eliminate the risk. The facts given do not suggest that Jim has taken any reasonable steps to prevent the accident from happening. Therefore, it can be said that Jim does not meet the requirement of the reasonable man’s standard of care (as discussed above), hence he has breach the duty.
The third element required to be established by Tania in a negligence action is to prove that Jim’s breach of duty caused the death of Tom. The question of causation can be divided into two issues, causation in fact and causation in law (remoteness). As a matter of factual causation, by applying the “but for” test laid down in Barnett v Chelsea and Kensington Hospital Management Committee, but for Jim knocked down Tom from his bicycle, Tom would not have suffered a bleed in his brain and subsequently died. Jim might, however, argue that the doctor and nurse of the Quick Hospital have acted negligently and therefore break the chain of causation. In Rahman v Arearose Ltd, the Court of Appeal held that the negligent medical treatment which intervenes between the breach and the damage will be treated as novus actus if it is serious and amount to a completely inappropriate response to the patient’s condition. In The Oropesa, the court held that for a novus actus intervenient, the third party’s action must be so independent and does not relate to the defendant’s negligence. Lord Wright stated that if the third party has miscalculated in emergency situation, such actions would not break the chain of causation. Whether an act which amount to novus actus intervenient, Lord Wright stated that it must be something ultroneous, unwarrantable, a new cause in coming in disturbing the sequence of events which can be described as either unreasonable or extraneous or extrinsic. It is highly unlikely that the errors that the doctor and nurse made will break the chain of causation as they were acting in the emergency situation. In addition, the delayed and mistake made was not something so independent which the court will allow the break of chain of causation.
The next issue to be considered is the legal causation. Tania must show that the damage was not too remote. In The Wagon Mound (No.1), the Privy Council expressed its unqualified disapproval of Re Polemis, and held that the defendant will not be liable for the damage if it was reasonably foreseeable. It can be said that causing injury on a road accident is reasonably foreseeable and it is not too remote. But, Jim may argue that a bleed in a brain was unreasonable foreseeable as the Tom does not appear to have suffered any serious injury when the accident takes place and thus break the legal causation. However, in Smith v Leech Brain, there was a burn on claimant husband’s lip due to the splash of molten by the defendant’s inadequate protection. The cancer developed at the sight of the burn and the claimant’s husband died later. The court held that the defendant must take his victim as he picks, and the cancer need not be reasonably foreseeable. It is sufficient that the injury by burn is reasonable foreseeable, the defendant will be liable for the full extend of its consequences. By applying the “thin shell skull” rule above to the facts, it is sufficient that the slight injury on Tom is reasonable foreseeable, Jim has to bare the consequence of the bleed in brain which subsequently causes Jim’s death.
Since the elements of tort of negligence have been made out above, it is likely that Tania is able to bring an action against Jim on behalf of Tom under the tort of negligence. Jim has now the burden to plead one or more of the defences. If on balance of probability, a successful defence is established, Jim’s liability for the damage may be reduced or he may be totally absolved from the liability. Among others, there is a possibility of Jim raising a partial defence under the contributory negligence. In Jones v Livox Quarries Ltd, the court held that the defendant must prove that the claimant has failed to take reasonable care for his own safety and led to the damage. Under s.1(1) of the Law Reform (Contributory Negligence) Act 1945, for a successful defence of contributory negligence, the court will reduce the damages as it thinks just and equitable, having regard to the claimant’s share in the responsibility for the damages. The facts given did not state that there was any element of contributory negligence by Tom in the accident, and hence, it is unlikely that there will be any defences for Jim.
Tania may also bring an action against Fast Services Ltd. under the doctrine of vicarious liability for Jim’s negligence. A vicarious liability will not be imposed on an employer unless there are elements of employer-employee relationship; the employee must have committed a tort; and the tort must be committed while acting in the course of employment. In determining the ‘course of employment’, the House of Lords in Lister v Hesley Hall Ltd, held that the test is whether the employee’s act was so closely connected with what he was employed to do that it would be fair and just to hold the employer liable. Based on the facts given, it can be said that there is employer-employee relationship between Fast Services Ltd and Jim and he has committed a tort under the tort of negligence as shown above. The facts also showed that the accident happened when Jim was acting in the course of employment as he was in a hurry to send a consignment of goods for his company and it can be said that it is fair and just for the court to find the company to be liable under the doctrine of vicarious liability.
Besides bringing the legal action against Jim and Fast Services Ltd, Tania can also on behalf of Tom, bring a legal action under the tort of negligence against Quick Hospital as the facts have shown that the nurse has forgotten to do the CT Scan of Tom’s brain and the doctor did not realise that the CT Scan was not being done by the nurse. Since the costs of paying judgments and settlements in hospital cases are now paid entirely by the National Health Service Trusts, the courts are now willing to recognise the hospital will be liable for the negligence of its staffs for the purposes of vicarious liability. As mentioned above, Tania must also show first that the employees of the Quick Hospital have committed a tort, and in this situation, it is likely that the employees have committed a tort under the tort of negligence.
Under the tort of negligence, as above discussed, Tania must prove that there must be a duty between the doctor, nurse and Tom, and they have breach such duty as well as causes damage to Tom. As a matter of duty of care, it can be said that there is a duty of care for the doctor and nurse to Tom as it has been well established that doctor and nurse have a duty of care to their patient.
Tania must show that they have breach their duty of care towards Tom. According to McNair J in Bolam v Friern Hospital Management Committee, doctor is a professional and the standard of care is different the Clapham omnibus. It was held that it must judge by the ordinary skilled man and professing to have that special skill and it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. This test is also applied to nurse as nurse is a professional job too. The doctor and nurse have to put forward a school of thought that is reasonable, respectable and responsible which supports his conduct. McNair J in Bolam, stated that if a medical man conforms with one of those proper standards then he is not negligent. The Bolam test has received criticism, among others, professionals are in effect allowed to set their own standard of care in order to protect their profession. The House of Lords in Bolitho v City and Hackney Health Authority, Lord Browne-Wilkinson (Lords Slynn, Nolan, Hoffmann, and Clyde agreed) stated that the Bolam test is correct to apply but the court was not obliged to hold that a doctor was not liable for negligence simply because some medical experts had testified that the doctor’s action were in line with accepted practice. The court had to satisfy itself that the medical experts’ opinion was reasonable in that they weighed up the risks and benefits, and had a logical basis for their conclusion.
If the expert’s opinion is in the favour of the doctor and nurse, where it is reasonable for a nurse to forget to do the CT Scan for Tom due to the situation here she was swamped with so many patients, and the doctor did not realise that the nurse has not done the CT Scan after treating so many patients, then there will be no breach of duty and hence no liability of negligence. However, if, on the other hand, the court finds that such view as unreasonable, such actions by the doctor and nurse will be considered as breach of duty.
If the court finds the doctor and nurse have breach their duty, by applying the “but for” test, but for the doctor and nurse’s breach of their duty, would Tom have died anyway? In Barnett v Chelsea and Kensington Hospital Management Committee, even though the doctor was in breach of duty, the autopsy revealed that even if the doctor had attended to the patient when he first arrived at the hospital, the probability was that it would have been impossible to save his life by the time he arrived at the hospital. Tom’s situation is similar with Barnett’s situation, evidence has showed that even if the CT Scan was done earlier, a bleed in the brain would have been detected but it is unclear whether doctors would have been able to stop the bleed if they had detected it earlier and break the chain of factual causation and there will be no liability for the doctor, nurse as well as the hospital under the tort of negligence.
In conclusion, it is likely that Jim will be liable for Tom’s death under the tort of negligence as well as Fast Service Ltd. under the doctrine of vicarious liability and under s.11 of the Limitation Act 1980, Tania must bring the legal actions against them within three years. Besides claiming the damages that Tom has suffered, the Fatal Accidents Act 1976 also allow Tania to claim loss of dependency against Tom and Fast Services Ltd for herself as well as Tom’s son, Jason (a minor).
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