Tort Coursework Cases -traffic accident and medical cases

by funkymonkey88 (student)

University Degree Law

Tort Assessed Coursework

Bethany Norris

N0382496

Submission Date: 24/02/2012

Word Count: 1500

Tutor: Lynne Shone

Introduction

To bring a claim for negligence in tort a claimant must prove that a.) the defendant owed them a duty of care, b.) the defendant did not meet the standard of care required, c.) the breach of duty by the defendant caused the harm suffered by the claimant and d.) the loss was not too remote. If one of these elements fails then there can be no claim.

Andrea v Bernice

A road user owes other road users a duty of care[1]; other road users include pedestrians, motorists and cyclists.

A duty is breached when the required standard is not met; in this case the standard is that of a competent driver[2]. Bernice would not be able to use the case of Quinn v Scott [1965] [3] which held that speeding is not necessarily negligent; however, this judgement was made before the introduction of speed limits and so Bernice breached the standard by travelling above the speed limit thereby hindering her ability to stop before hitting Andrea.

To establish causation we must look at the facts more closely. To determine whether the defendant caused the harm the “but for” test[4] must be applied. But for Bernice’s negligent driving would Andrea have suffered two broken legs? The answer is no, however, Bernice will be able to use the defence of contributory negligence under s.1 (1) of the Law Reform (Contributory Negligence) Act 1945[5] which states that “Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated...but the damages recoverable in respect thereof shall be reduced...” Andrea had failed to stop at a red light and failed to slow down in time to avoid collision with Bernice’s car therefore she contributed to the negligence.

In the case of Malasi v Attmed [2011][6], a taxi driver was speeding and collided with a cyclist who had gone through a red light the judge held that both were negligent but that the majority of the negligence lay with the cyclist as he had gone through a red light, had not been wearing high visibility clothing and had failed to break whereas the driver had only been speeding. The claimant’s damages were reduced to 20%.

As we are not told how fast Bernice was travelling or whether Andrea was wearing any high visibility clothing it is difficult to assess whether one individual was more negligent than the other. However, as the facts of the case are very similar to those of Malasi v Attmed [2011][7], we can assume that, although Bernice has acted negligently and caused Andreas injuries, Andrea has also acted negligently and will therefore have her damages reduced.

As a causal link has been established we must now show that the harm was not too remote. The test for remoteness is whether ...

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As a causal link has been established we must now show that the harm was not too remote. The test for remoteness is whether the defendant is liable for damage, only if it was a foreseeable consequence of the breach of duty. Foreseeable consequence was established by the Privy Council in The Wagon Mound (No1) [1961][8]. The Privy Council decided that the defendants should only be liable for what could reasonably have been foreseen. In contrast in Hughes[9] it was held that if the injury or damage is of a type that could be foreseen, even if it happened in an unexpected way or was more severe than expected then it is established that the damage is not too remote. It is reasonably foreseeable that if a motorist collides with a cyclist at speed, the cyclist will suffer some form of injury.

Andrea v Dr Coles

A duty of care is owed by a doctor to their patients[10].

A doctor is in breach of their duty if they do not meet the standard of a competent and reasonable doctor[11]. To determine whether or not a doctor has met the standard we must apply the Bolam Test[12]. The Bolam principle states that ‘a doctor is not guilty of negligence if he acts in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art . .’[13].

In Sidaway v Bethlem Royal Hospital [1985] [14] it was established that the Bolam test can be used in issues regarding consent. If a doctor provides a patient with enough information so that he conforms to accepted medical practice then the doctor has not acted negligently; provided that a responsible body of medical opinion would have acted in the same manner. In Andrea’s case we are told the risk is small but recognised, so some doctors may not have told her of the risks. The courts may also consider Bolitho[15] to determine whether it was logical to withhold the information.

In contrast, Chester v Afshar [2004] [16] found that a doctor is under a duty to disclose information about the risk carried in the surgery. The fundamental difference between the two cases is that Miss Chester asked about the risks involved in the surgery.

We are not told whether Andrea did ask Dr Cole if there were any inherent risks in having the surgery, however, if she did and Dr Cole did not disclose the information then Dr Cole is in breach of duty. Also recent developments such as “Consent: patients and doctors making decisions together[17]” inform doctors that they will be liable if they do not inform patients of risks of surgery.

If Dr Cole did breach his duty, we must show that the breach materially increased the risk of nerve damage suffered by Andrea. To establish causation Andrea must prove that but for Dr Cole’s failure to warn her of the risks, the nerve damage would never have occurred. If Andrea can prove that she would never have had the surgery had she known the risks involved then the “but for” test[18] is satisfied. However, this can be difficult to prove and was the issue which faced the House of Lords in Chester v Afshar [2004][19]. In this case the claimant could not prove that she would never have had the surgery, she could only say that she would have taken more time to decide. The House of Lords decided that it could not take a strict approach with causation as it would leave the claimant without remedy even though the doctor had breached their duty, so they held that “a doctor who negligently fails to warn a patient about a complication from treatment must compensate the patient...”[20]

We are told that the operation carried out was not performed negligently therefore Dr Cole did not increase Andrea’s risk of nerve damage, however Dr Cole’s failure to warn her of the risk denied Andrea the right to make an informed decision about her treatment options. Therefore it could be said that even though the risk of nerve damage was not increased by Dr Cole his failure to warn did cause the damage because if Andrea decided to delay treatment or try an alternative the nerve damage may never have occurred. It is reasonably foreseeable that if a surgery carries a recognised risk that the risk could arise even if the surgery is carried out competently.

Concerning Andrea’s broken arm, in Baker v Willoughby [1969][21], it was held that if a second tortious act includes damage from the first negligent act, then the first tortfeasor is liable for all damage. This would mean that Bernice is liable for all the damage suffered by Andrea including the broken arm.

Conclusion

Andrea can bring a claim against Bernice but will face reduced damages due to contributory negligence. Andrea may be able to bring a claim against Dr Cole if she can prove that she asked Dr Cole to disclose information about the risk and that given this information she would have at the very least delayed surgery until a later date.

Bibliography

Nettleship v Weston [1971] 2 Q.B. 691
Quinn v Scott [1965] 1 W.L.R 1004~
Barnett v Chelsea and Kensington Hospital [1969] 1 QB 428
Malasi v Attmed [2011] QBD (Judge Seymour QC) 5/12/2011; LTL 6/12/2011 EXTEMPORE Document No.: AC9300999
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] UKPC 1
Hughes v Lord Advocate [1963] UKHL 8
Bolitho v City and Hackney HA [1998] A.C. 232
Wilsher v Essex AHA [1988] A.C. 1074
Bolam v Friern Hospital [1957] 1 WLR 582
Sidaway v. Board of Governors of the Bethlem Royal Hospital Governors [1985] AC 871
Chester v Afshar [2004] UKHL 41
GMC. (2008). Consent guidance: patients and doctors making decisions together. Available: http://www.gmcuk.org/guidance/ethical_guidance/consent_guidance_index.asp. Last accessed 01/02/2012.
Barnett v Chelsea and Kensington Hospital [1969] 1 QB 428
Gilikier, P and Beckwith, S (2011). Tort. 4th ed. London: Sweet & Maxwell. P156-157 and p177-178.
Baker v Willoughby [1969] 3 All ER 1528

Law Reform (Contributory Negligence) Act 1945 s.1(1)

[1] Nettleship v Weston [1971] 2 Q.B. 691

[2] Nettleship v Weston [1971] 2 Q.B. 691

[3] Quinn v Scott [1965] 1 W.L.R 1004

[4] Barnett v Chelsea and Kensington Hospital [1969] 1 QB 428

[5] Law Reform (Contributory Negligence) Act 1945 s.1

[6] Malasi v Attmed [2011] QBD (Judge Seymour QC) 5/12/2011

[7] Malasi v Attmed [2011] QBD (Judge Seymour QC) 5/12/2011

[8] Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] UKPC 1

[9] Hughes v Lord Advocate [1963] UKHL 8

[10] Bolitho v City and Hackney HA [1998] A.C. 232

[11] Wilsher v Essex AHA [1988] A.C. 1074

[12] Bolam v Friern Hospital [1957] 1 WLR 582

[13] Bolam v Friern Hospital [1957] 1 WLR 582

[14] Sidaway v. Board of Governors of the Bethlem Royal Hospital Governors [1985] AC 871

[15] Bolitho v City and Hackney Health Authority [1997] 4 All ER 771

[16] Chester v Afshar [2004] UKHL 41

[17] GMC: Consent guidance: patients and doctors making decisions together (2008): http://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_index.asp

[18] Barnett v Chelsea and Kensington Hospital [1969] 1 QB 428

[19] Chester v Afshar [2004] UKHL 41

[20] Gilikier & Beckwith (2011)

[21] Baker v Willoughby [1969] 3 All ER 1528