TORT ESSAY - PROBLEM QUESTION Economic loss and duty of care
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TORT ESSAY - PROBLEM QUESTION Economic loss and duty of care Isabelle Richard As a result of a car accident caused by Rahul's negligence Sunita is transported to the Accident and Emergency Department of Milton Hospital where unfortunately it soon transpires that nothing can be done to save her. However her parents convince the doctors to keep her artificially biologically alive so as to carry her baby to term. Three months later her son Ashok is born with severe disabilities consequential upon the physical trauma suffered by his mother, and by repercussion, himself, during the accident. Sunita's husband seeks to sue the Milton Hospital Trust in negligence for the birth of his disabled son. The Milton Hospital Trust will be held vicariously liable for the torts committed by its employees during the course of their employment. The issue is therefore as to whether the doctors committed a tort in relation to Sunita's husband when they took the decision to keep her artificially alive for the sake of her unborn baby. The claimant will wish to establish that had they properly diagnosed the risks involved (i.e. the likelihood of the child to be severely disabled) and informed him accordingly he would have certainly exercised his right to terminate the pregnancy (and not keep Sunita on life-support)
a result of it, Lord Steyn applying principles of distributive justice; it would seem normal, logical to anyone that the 'burden' of bringing up an healthy child should fall on the parents, and Lord Clyde considering the expenses the defendant would have to incur if a duty was found would be out of proportion with his culpability. The issue as to when the baby born is disabled was not directly addressed. Judge Henriques in Hardman v Amin reviewed the case concluding it should not and did not apply to the situation where the child is disabled as a result of such clinical negligence. The subsequent Court of Appeal's decisions in Parkinson v St James and Seacroft University Hospital NHS Trust (2001) EWCA Civ 530 and Rees v Darlington Memorial Hospital NHS Trust (2002) EWCA Civ 88 seemed to confirm the view that damages for the cost and maintenance of a disabled child born because of the negligence of the defendant. In such cases therefore it would be fair, just and reasonable to hold the doctors liable in negligence for the (unwanted) birth of a disabled child; it would meet the principles of distributive justice and liability would not be out of proportion with the culpability since the doctors should be taken to have known the disastrous consequences such birth could have upon the parents.
The fact that the doctors' actions were not the sole reason for the disability of the child, that the child would not have been disabled if Rahul had not caused the accident in the first place, is mostly irrelevant. Recoverable damages Following the recent cases mentioned above will be awarded the extra cost associated with the disability of the child ; normal costs relating to the upbringing of a child (healthy or disabled) will not be included (following McFarlane). Sunita's husband should be able to recover the expenses that will be needed to accommodate the disabled child due to his disability, to provide for his special needs, the cost of any treatment needed ... Concluding comments on Rahul's liability We can note that Sunita's husband should be able to sue Rahul in negligence for the accident, which caused the death of his wife (considering a possible reduction in the damages awarded due to contributory negligence, by Sunita in not wearing her seat-belt). In relation to the disabled Ashok, if the doctors can escape liability by showing that their actions were not unreasonable then Rahul might be held liable instead since the chain of causation would not have been broken by the medical intervention (Knight v Jones  1 WLR 349 (CA)). WORD COUNT : 2190 MARK OBTAINED : 72
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