Negligence Liability Mandy Nick Doctor Max

This advice relates to the potential claims and liabilities of Mandy, Nick, the doctor, and Max under the principle of negligence. The issues that are involved in this advice in relation to Mandy concern the respective liability of Nick and the doctor. Nick’s liability is considered with respect to his possible negligence leading to Mandy’s injury. The doctor’s liability is considered with respect to his possible negligence in failure to diagnose Mandy’s punctured lung, which is relevant for those seeking law dissertation help. With relation to Max, the issue is whether he has an action for damages as secondary victim who was harmed by witnessing Mandy’s accident. This advice responds to these respective issues in detail after due consideration to authority on the law of negligence.

The law relating to negligence is applicable to the issues raised above with relation to Nick and the doctor’s possible liability. Negligence is defined as the failure of the defendant to take due and reasonable care for avoiding reasonably foreseeable harm to the plaintiff by his acts or omissions. As to who this duty is owed to, the neighbour’s principle lays down the duty to take care to not harm anyone by our negligent acts, where such harm may be reasonably foreseen; the word ‘neighbour’ signifies any person known or unknown who may be closely or directly affected by the act or omission. A person who may be harmed by the actions of the defendant, where the defendant could have reasonably foreseen such harm to a person, can have an action for negligence against the defendant.

A claimant who claims negligence of defendant, is required to prove that the defendant owed him a duty of care as without such a duty, negligence does not arise. The three-stage test laid down in Caparo plc, is applied to determine whether the defendant did owe a duty of care to the claimant: (a) reasonable foreseeability of harm by the defendant; (b) close relationship between claimant and defendant; and (c) fairness in imposing a duty of care on the defendant (which has to be determined by the court). If these three are satisfied, then the defendant’s duty of care can be established. The earlier broad scope of negligence as established in Merton London District Council is no longer applicable after the decision in Caparo plc.

Even if the defendant can be proved to have had duty of care to the claimant, three more elements are to be proved by the claimant for establishing negligence on the part of the defendant. Thus, once duty of care is established, the claimant has to prove breach of the duty, proximate cause and harm caused to him due to the breach of duty.

In order to prove breach of duty, the claimant will have to establish that the defendant’s act or omission fell below the standard of care that can be reasonably expected of a prudent or a reasonable person. In Daborn, the standard of care was defined by Asquith LJ as “the standard of reasonable care is that which is reasonably to be demanded in the circumstances.” If the defendant’s act or omission falls below that standard, then breach of duty can be determined. Harm refers to the damage caused to the claimant by the act or omission of the defendant.

Proximate cause or causation needs further clarification in this case because it is of particular relevance to both Nick and the doctor. Causation refers to the direct relationship between the breach of duty by the defendant and the harm caused to the claimant. Factual causation is related to the proximity between act or omission of the defendant and the harm caused to the claimant. In order to determine factual causation, the ‘but for’ test is employed to establish if the harm caused to the claimant would not have been caused but for the act or the omission of the defendant.

In case where there are multiple causes of the harm, as in the present case where Mandy suffered harm both due to the non-tightening of the wheel nuts by Nick and the misdiagnosis of the doctor, the ‘but for’ test has to be applied in order to understand whose act or omission in this case led to the harm to Mandy. It is also important to note that if there is any intervening act, it can cause a break in the chain of causation. In this case, it can be argued that Nick’s proximity to the Mandy’s injury is broken by the intervening act of the doctor in misdiagnosis. On the other hand, the ‘but for’ test may be used to argue that but for the negligence of Nick in not tightening the wheel nuts, Mandy would not have met with the accident and she would not have needed to go to the hospital.

Nick has acted voluntarily in this case and therefore the law related to volunteers and good Samaritans need to be considered here. In this context, the first point is that voluntary act or intervention alone does not lead to the formation of a relationship of proximity between the defendant and the claimant. Apart from the voluntary act, there must be reasonable reliance that the voluntary service provider should be aware of and that such reliance should be detrimental, that is, it should cause the recipient of the voluntary service to change her position on faith of the service provided. However, as Nick has voluntarily accepted responsibility, he may be held liable for omission as per the decision in Barett v Ministry of Defence. Moreover, costs of running the risks may also be considered with respect to Nick’s omission, as the failure to tighten the bolts ran the likelihood of injury. The nature of injury also being severe is also an important consideration here.

With reference to the misdiagnosis by the doctor and the possible liability arising from this misdiagnosis, the same principles of negligence are applicable as discussed above, although standard of care is different as standard of care will be as expected from reasonable members of the medical profession. The Bolam test is relevant here, as per which there is an objective standard of care based on the reasonable practices within the medical profession. If the doctor fails to give medical advice as per this objective standard of care, liability for negligence will arise. Moreover, a sufficiently close relationship between doctor and claimant is established if the doctor can reasonably foresee the damage by his failure to take care. Furthermore Bolitho establishes that causation must be evaluated on the balance of probabilities and the doctor’s liability does not arise if the patient is not left worse off than they otherwise were. Liability does arise in cases where the doctor does not act as per the practices of their profession.

Nick’s liability will arise only if Mandy placed reliance on the service he provided voluntarily to her and it was to her detriment. In this case, Mandy was stuck on the road with a punctured tyre at night. Nick voluntarily offered his assistance. Although there is voluntary service provided, the issue of reliance is not made out. The tightening of nuts can be reasonably expected by anyone who is changing tyres. Even if Nick voluntarily helped Mandy, duty of care can arise if Mandy can prove that she relied on this help to her detriment. It is not clear whether the court would rule in favour of Mandy. Had Nick been an AA (Automobile Association) patrolman, whom Mandy had summoned to help her, then the answer would be clearer. In that case, Nick would have definitely owed duty of care to Mandy due to proximity.

The doctor in this case is liable because the objective standard of care would demand that the diagnosis of the patient is based on relevant tests. In this case, Mandy was attended to by a senior doctor on call. As a senior doctor a higher standard of care is applicable to him even if he was new to Accident and Emergency. He advised that Mandy had bruising to her left lung and some swelling, but assured her it was not punctured. This assurance does not appear to have been based on objective tests or reasonable practices within the medical profession. Due to the punctured lung not being properly diagnosed until 1 month later, Mandy is now faced to live with a life-long condition of collapsed lung. However, Mandy cannot claim loss of chance of recovery unless there is more than 50 percent chance of cure. Moreover, causation in medical negligence has to be proved on balance of probabilities.

With relation to Max, the issue is whether he can claim secondary victimisation. The law related to secondary victims of psychiatric injury is applicable in this situation. Secondary victims are entitled to claim damages for psychiatric injury from the defendant in primary victim case, where the secondary victim can claim such damages on the basis of the psychiatric injury caused by witnessing death or harm to the primary victim. However, secondary victims have to prove the following for a successful claim. First, there should be a close relationship between secondary and primary victims. Second, there should be physical and temporal proximity between the secondary victim and the accident site. Third, the secondary victim must have on his own perceived the death, or injury to the primary victim. Fourth, the secondary victim should have an identified psychiatric injury. Finally, the psychiatric injury should have been caused due to ‘shock’.

The first element, that is the close relationship between the secondary and primary victims, is an important element in the determination of secondary victimisation for the purpose of action for damages. In Alcock, the court held that there must be ties of love and affection between the primary and secondary victims in order for the close relationship to exist for the purpose of secondary victimisation.

From the perspective of the defendant Nick, the difficulty arises as to the enlarging the scope of his liability beyond what he owes to Mandy unless there is a link between his negligent act and the damage to Max. For this, the neighbour principle becomes applicable. In Bourhill, the defendant’s negligence led to a motor accident, which led to the death of the defendant; leading to shock and psychiatric injury to an eight-month pregnant woman and her baby was a still born. In the case, the court applied the neighbour principle, and held that the duty of care would arise only in case of close proximity between the act of the defendant and the reasonable foreseeability by the defendant; which the House of Lords held was not present. Therefore, there is a requirement of foreseeability on the part of Nick with respect to causing injury to Max for an action for damages to be established.

In this situation with reference to the primary victimisation of Mandy and the secondary victimisation of Max, all the requirements noted above are satisfied, save the first one. Nick did witness the harm first hand, and must have perceived death or injury to Mandy and there was physical and temporal proximity to the accident. He has suffered psychiatric injury as he has not been able to work since the accident because of recurring nightmares about the accident and insomnia. At the time of the accident, Max was walking down the road and seeing the accident, he fainted and suffered shock. However, he does not have a close relationship with Mandy. Therefore, one of the important elements is not satisfied in this case. Moreover, there is lack of foreseeability on the part of Nick. Moreover, as per the decision in White, Frost and Others, there are significant differences to be drawn between primary and secondary victims and all secondary victims irrespective of their psychiatric injury cannot claim damages.

To conclude, we advice that Nick’s liability is not clearly made out. However, the court may rule in Mandy’s favour for part of the blame for her medical condition as but for Nick’s actions, she would not have met with the accident. Even so, the doctor’s intervening act may break that chain of causation to Nick’s advantage. The doctor is liable for negligence because as per established authority, he failed to take reasonable care in his diagnosis. The court may choose to apportion the damages for Mandy between Nick and the doctor as it did in the case of Webb, wherein the damages were apportioned between two defendants. In that case, the employer of the claimant was made to pay damages for failing to secure the work place against injury and the doctor was made to pay damages for negligence in treating the claimant. Similarly, it is possible that in this case, the court may decide to apportion the damages between Nick and the doctor. With relation to Max, we advice that Max cannot claim secondary victimisation in this case as there is no close relationship between him and Mandy. Moreover, Nick could not have foreseen that any accident of Mandy’s would also lead to harm to Max.

Table of cases

• Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5.
• Anns v Merton London District Council [1978] AC 728.
• Barnett v Chelsea and Kensington Hospital Management Committee (1969] 1 QB 428.
• Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781.
• Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
• Bourhill v Young [1943] AC 92.
• Caparo plc v Dickman [1990] AC 605.
• Daborn v Bath Tramways Motor Co Ltd [1946] 2 All ER 333.
• Donohue v Stevenson [1932] UKHL 100.
• Gregg v Scott [2005] 2 WLR 268.
• Hearne v Royal Marsden Hospital NHS Foundation Trust [2016] EWHC 117 (QB).
• Home Office v Dorset Yacht [1970] UKHL 2.
• Montgomery v Lanarkshire Health Board (Scotland) [2015] UKSC 11.
• Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd or "Wagon Mound (No. 1), [1961] UKPC 2.
• Palmer v Portsmouth Hospitals NHS Trust [2017] EWHC 2460 (QB)
• Paris v Stepney BC [1951] AC 36
• Roe v Minister of Health [1954] 2 QB 66.
• Sidway v Bethlem Hospital Royal Governors [1985] 1 All ER 643.
• Sparrow v Andr, [2016] EWHC 739 (QB) (QBD).
• Webb v Barclays Bank Plc and Portsmouth Hospitals NHS Trust [2001] Lloyd's Rep Med 500 Court of Appeal.
• White, Frost and Others v Chief Constable of South Yorkshire and Others [1998] UKHL 45.
• Wilsher v Essex AHA [1988] AC 1074.

Books

Deakin SF, Johnston A, Markesinis B, Markesinis and Deakin's Tort Law (Oxford: Oxford University Press 2012).

Herring J, Medical Law and Ethics (Oxford University Press 2016).

Journals

Hamer D, ‘‘Factual causation’ and ‘scope of liability’: What's the difference?’ (2014) 77(2) The Modern Law Review 155; Stapleton, ‘Cause in fact and the scope of the liability for consequences’ (2003) 119 LQR 388.