A will be advised that she is able

A claimant who wishes to sue in negligence must have fulfilled
four elements to be successful. The defendant must owe a duty of care to the claimant,
there must be a breach of that duty, there is consequently actionable damage which
was not too remote. Using the problem question, Hettie will be advised that she
is able to claim or negligence against Andy’s conduct for property damage. Andy
will also be advised that his negligence claims Dr Salt falling under the
expected standard of care of a medical professional. The question is mainly
concerned with how the breach of duty has occured and whether the defendant can
be held fully liable for the claimant’s loss. The issues raised in the question
are primarily concerned with the duty of care an inexperienced apprentice holds
when carrying out work and the standard of care that is expected from a doctor
to their patient.

 

Hettie v Andy

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Firstly, it must be shown that the defendant Andy, owes a
duty of care to Hettie in order to determine the tort of negligence. In Spartan
Steel & Alloys Ltd v Martin & Co (Contractors) Ltd1,
it was established that the defendant owed the plaintiffs a duty not to damage the
cable which supplied power to the plaintiff’s factory. Using this, it can be
accepted that Andy owed Hettie a duty of care not to damage her property thus, there
is no need to apply the Caparo test.

 

Furthermore, as a general rule, the conduct of the defendant
must be judged by the standard of the hypothetical “reasonable person”, in
order for there to be a breach of duty. Andy is an inexperienced apprentice trying
to qualify as a plumber hence raising the issue of whether he should be held to
the same standard as a fully qualified plumber. In Nettleship v Weston2,
it is illustrated that one’s conduct should not be judged by the standard of
learner but by the standard of a reasonably competent and experienced professional.
Yet, it was held in Wells v Cooper3 that
the defendant had discharged the duty of care has he had not fallen below the
standard of care expected of him as a reasonably competent amateur carpenter.
Andy, however, attempted to remove radiators and clean them, based on what he
thought he knew from the week before. Therefore, the defendant has attempted a
job which exceeds his capabilities and would usually require professional work.
 Although, Andy has seen Drew deal with a
similar problem, Andy suggests that he knows how to carry out the work thus, he
does not fulfil the proper standard of care and is in breach of his duty.

 

It must also be proved that the breach of duty has caused actionable
damage to Hettie. Using Spartan Steel & Alloys Ltd v Martin & Co
(Contractors) Ltd, which illustrates the physical damage to property, due to
the damage to the melt that was in the furnace at the time of the power cut. In
Hettie’s case, it can be established that property damage to the lounge is
recoverable and thus, can be compensated.

 

Additionally, in order to determine causation, it must be
proven that it was the defendant’s action that caused that plaintiff’s loss. This
can be achieved by applying the ‘but for’ test by asking whether if it was not
for Andy’s conduct, would Hettie’s loss still have occurred in any event? In
this case, if Andy had not attempted to remove the radiator and clean them,
there would not have been damage to Hettie’s property. It must also be proven
that the damage was not too remote. The decision in The Wagon Mound (No1)4
established that if a reasonable person would not have foreseen the damage, it
cannot be recovered. This test was applied in Hughes v Lord Advocate5,
where the plaintiff suffered serious burns when he tripped with a lamp in a
manhole, which had been left unattended. It was held that the defendant was
liable because the accident was caused by a known source of danger, thus, the
injury was foreseeable. Lord Morris pointed out that defenders are not absolve
from liability because they “did not envisage the precise concatenation of
circumstances which led up to the accident…”6  In this case, Andy was aware of the damage he
may inflict on Hettie because he would have been aware that not carrying out
the correct steps as a plumber, would lead to property damage. Therefore, Andy
is liable for the plaintiff’s loss.

 

Andy v Dr Salt

 

It should firstly be determined whether Dr Salt owed Andy a
duty of care. Under the European Convention of Human Rights, Article 2 requires
a state to have a structure which will help to protect life7.
Consequently, pubic bodies including hospitals, can be held liable for
violation of Article 2 for failing to prevent the infliction of harm by others.
Thus, Dr Salt is potentially liable in negligence so the Caparo test is thus not necessary in this case.

 

Moreover, it has to be determined that Dr Salt was in breach
of the standard of care. In Bolam v Friern Hospital Management Committee8 it
was established that a doctor will not be in breach of the duty of care if his
or her behaviour lies up to the standard of other responsible medical
professionals. This test was applied in Maynard v West Midlands HA9,
where it was held that in relation to a diagnosis and treatment of a certain condition, a
doctor is not necessarily negligent where one respectable body of professional
opinion is preferred to another. McNair J emphasises that a man cannot carry on with an
old technique if it has been proven “to be contrary to what is really
substantially the whole of informed medical opinion”.10 In the case of Dr Salt, he was one
of a minority of doctors who believed that x-rays were dangerous and thus did
not give Andy one. Thus, Dr Salt can discharge the duty of care if other
medical professionals agree with his reasoning. However, Bolam has been
modified by Boltho v City and Hackney Health Authority11.
Here, a doctor failed to put a tube down the throat of a child to assist his
breathing. There were five experts that believed the doctor to be negligent and
three that said she had not. It was made clear from Bolitho that a doctor
cannot escape liability for his or her conduct unless that conduct has rational
justification. Dr Salt lacks this logical justification as the deformation of
Andy’s arm could have been avoided if did the usual practice to x-ray and set
in a plaster and is thus, the defendant’s conduct is judged according to the
standard of a reasonable person in the medical profession. Therefore, Dr Salt
falls below the standard of care expected of him and is in breach of his duty.

 

Furthermore, it has to be established that defendant’s
conduct has caused the claimant’s loss to establish causation. This can be done
by applying the ‘but for’ test thus asking whether if it had not been for Dr
Salt’s conduct, would Adam still have suffered a personal injury? In Barnett v
Chelsea and Kensington Hospital Management Committee12,
the doctor was in breach of his duty for failing to examine a man who
subsequently died from arsenic poisoning. Expert evidence suggested, however,
that that the man would have died anyway hence, the doctor’s breach of duty had
not caused the man’s death. In this case, Dr Salt failed to examine Andy and
sent him home. As a result, Andy suffers from a permanently deformed arm which
would have been avoidable if the correct examination was carried out by the defendant.
Therefore, if it was not for the defendant’s negligence towards the claimant,
Andy’s loss would not have occurred; making Dr Salt liable. The claimant’s loss
must not have been too remote thus it must be of a foreseeable type.  In Roe v Ministry of Health13
no duty was owed by the nurse to the patient who because paralysed. It was not
known that contamination could occur when the patient was injected by ampoules containing
fluid. Thus, the defendant was not liable. Dr Salt should have been able to reasonably
foresee the claimant’s loss and a doctor would have been aware of the risks of
sending a patient home without full examination.  Therefore, Dr Salt is liable for the plaintiff’s
loss

 

Overall, Hettie is able to claim negligence against Andy as
he tried to carry out a task that was not within his capabilities and has
negligently caused property damage to Hettie’s lounge as a result. Such a loss
would not have occurred without Andy’s conduct, thus making him liable for any
damages. Andy would be advised that his claim against Dr Salt would also be
successful as he is owed a duty of care that has been breached when he was sent
home by Dr Salt and subsequently, suffered permanent deformation of his arm
which could have been avoided. If the claimant’s loss would have occurred even
with examination, then Dr Salt would not be held liable. However, his conduct
has caused Andy’s loss and so, he should be held negligible.

1 1973
Q.B 27

2 1971
2 Q.B 691

3 1958
2. Q.B. 265

4 1961
AC 388

5 1963
1 ALL ER 705

6 Hughes
v Lord Advocate 1963 1 ALL ER 705 (Morris, John)

7 Human
Rights Act 1998, Art 2 (1)

8 1957
1 W.L.R. 582

9 1985
1 All ER 635, HL

10 Bolam
v Friern Hospital Management Committee 1957 1 W.L.R. 582 (McNair, J)

11 1998
A.C. 850

12 1969
1 Q.B. 428

13 1954
2 Q.B 66