A duty of care for the actions of a third party may arise if the claimant and defendant have a relationship of proximity from a contract between the parties Stansbie v Troman[7] or by things said and done by the parties such as in Swinney v Chief Constable of Northumbria Police[8]. You may also owe a duty to a third party if you have created a risk of danger, such as in Haynes v Harwood[9].
In the case of Stansbie v Troman[10] it was established that if the claimant and defendant have a relationship of proximity from a contract between the parties then a duty of care for the actions of a third party may arise. a duty to a third party may also be owed if there is a creation of a risk of danger, such as in Haynes v Harwood[11]. Further more a duty of care may be owed if assumed responsibility is given, as in Costello V Chief Constable of Northumbria Police[12] which found that a police inspector has an assumed responsibility to help fellow officers.
It may be seen likely that the courts will find that Northwood CC owed Jenny a duty of care for Sophie’s dad’s actions because they have a relationship through a contract of employment, and they also in control over Jenny as she is their employee, therefore this duty is reinforced. Jenny’s case is very similar to that of Selwood v Durham CC[13], therefore the precedent set in this case should be followed, thus finding that Northwood County Council owed a duty of care to Jenny in regards to the actions of Sophie’s dad. Although defence may try to distinguish this case from Selwood through the fact that in that case the third party had a history of violence, however the courts should most likely to find that both Northwood CC and the NHS Trusts owed a duty of care towards Jenny.
When looking at whether the duty had been breached it must be found that defendants have in order for them to be liable. The courts have said that you should look at the standard of care objectively by looking at what a ‘prudent and reasonable man would do’ Alderson in Blyth v Birmingham Waterworks[14], and then asses the conduct of the defendant against this set standard of care.
The courts will take into account the practicality of the defendants required actions. For example in Al-Kandari v JR Brown & Co[15] the courts found the solicitor in breach of his duty as minimal time would have been needed to warn the claimant. The courts will be more likely to find you in breach if the damage was foreseeable Bolton v Stone[16], and if the damage is likely to be of a serious nature, as in Paris v Stepney Borough Council[17].
In this case it must be decided whether a ‘reasonable person’ would have informed Jenny on Sophie’s fathers plan to kill her, because of the fact that it would have been done quickly and simply cost nothing to warn her then it should have been done. Due to this reasoning it is possible in that the courts would find the defendants in breach of their duty.
A defendant will only be liable for their carelessness if they owe the claimant a legal duty to take care. Lord Macmillion stated in that; “carelessness alone is not enough. The law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage.
When looking at negligence both factual and legal causation must also be taken into account. Factual causation is the ‘but for test’ in that the harm would not have occurred ‘but for’ the defendants actions.
In the case of McGhee v National Coal Board[18] it was found that factual causation may be when the defendant materially contributed to the risk of harm. In indeterminate causes, where there is more than one defendant responsible for the harm, the courts will apply the material increase in risk idea which was found in McGhee, therefore being able to find both defendants liable. Legal causation must also be proved, it must be found that there were no intervening acts which broke the chain of causation, and whether the damage caused was not too remote. The Wagon Mound (No 1)[19] set that the claimants harm will be too remote if the type of damage suffered by the claimant was reasonably foreseeable at the time of the breach.
When trying to apply the ‘but for’ test the courts could apply the principle of Fitzgerald v Lane[20], due to the fact that it maybe difficult to find either NHS trust or Northwood County Council liable due to the fact that they both contributed to the harm caused to Jenny. If this is implemented then it should be found that they both contributed to the risk of Jenny getting harmed, and therefore both have factual causation.
In relation to Sophie’s farther he may be liable for battery in trespass to the person. Battery is ‘the application of unlawful force to another person[21].’ To be found liable, there must be an intentional application of force, the force must be direct and immediate, and the contact must be unlawful but does not need to be ‘hostile’. Due to the fact that Sophie’s dad told others that he wanted to kill Jenny prior to the attack, the courts should find that ‘on the balance of probabilities’, he intended to attack her. It is not necessary to find whether the defendant intended to cause any harm. There was a direct and immediate application of force as there was contact between the knife which he was holding, and Jenny. Based on this, it is very likely that Sophie’s dad would have to pay compensation.
In regards to the doctor he could be found liable of negligence because, a doctor has a duty to care for patients present in a hospital emergency room. This was found in Barnett v Chelsea and Kensington hospital Management Committee[22]. This precedent would be used to find that the doctor owed a duty of care towards Jenny.
When looking at breaching your duty, if you are exercising an expert skill, the standard of care is then increased to that of a reasonable man who possesses the same expert skill as you.[23] The courts may accept a lower standard of care if the defendant was acting in an emergency situation Wilsher v Essex Area Health Authority[24]. However, if it is a mistake that a reasonably competent doctor would not have made whilst in an emergency, the defendant is likely to be liable for negligence.
It must be found that it was the doctor’s actions which caused the harm to Jenny. Res ipsa loquitur may be applied in order to find causation in negligence. This is a Latin term which translates to mean “the thing speaks for itself”. This was used in the case of Mahon v Osbourne[25] where the courts said that the fact that a swab was left in the patient’s body is enough to prove that the doctor was negligent. When this principle is applied, the burden of proof is then reversed so that it will be on the defendant to prove that he was not negligent. Due to the facts of this case and Mahon being so similar it is likely that the courts will follow this precedent and also find the doctor liable through res ipsa loquitur.
In order for jenny to receive compensation it must be proved that the doctor breached his duty of care, and that the standard of care he was giving was not sufficient and in fact lower than the reasonable doctor. To any reasonable person it may seem obvious that a reasonable doctor should not be leaving a swab inside the body of a patient. Due to the fact that Jenny was treated immediately in Accident and Emergency in his defence it could be argued that he was rushing to see other patients also and that the standard of care could be lowered. However in a hospital standard must be kept and therefore the standard isn’t going to be lowered so much in that it would allow for mistakes and therefore it is more than likely that the courts will find the doctor has breached his duty of care. Furthermore the fact that the doctor is a junior doctor would not be used in his defence.[26]
Jenny may claim battery in trespass for the doctor’s actions. Lord Denning made it clear in Letang V Cooper[27] that for trespass the defendant needs to intend his actions. Smith LJ expanded this idea in Iqbal v Prison Officers Association[28] by saying that intention also includes being subjectively reckless, therefore if the defendant could foresee that there was a risk of the consequence occurring but carried on anyway, then you may claim through trespass. You will not be liable for trespass if the claimant gives valid consent for the force. It was said in Chatterton v Gerson[29] that as long as you have understood the ‘general nature of the operation’ your consent will be valid, you do not have to be fully informed of the risks.
Considering all the fact presented along with previous case history it is evident that Jenny would likely succeed in claiming compensation from Northwood County Council, the NHS trusts and the doctor, along with compensation from Sophie’s dad through battery. As the injuries sustained to Jenny are so grave, ‘on the balance of probabilities’ at least one party was negligence.
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Bibliography
Horsey and Rackley, Tort Law (2nd Edition, Oxford University Press,2011) 383
Steve Hedley, Tort (7th Edition, Oxford University Press, 2011)
Paula Giliker and Silas Beckwith, Tort (3rd Edition, Sweet and Maxwell Limited, 2012)
Articles
Percy H Winfield ‘The History of Negligence in the Law of Torts’ (1926a) 42 Law Quarterly Review 184
Tables of Cases
Al-Kandari v JR Brown & Co [1988] QB 665 (CA)
Blyth v Birmingham Waterworks [1856] 11 Ex 781
Bolton v Stone [1951] ALL ER 1078
Caparo Industries plc v Dickman
Chatterton v Gerson [1981] Q.B. 432
Costello V Chief Constable of Northumbria Police [1999] I.C.R. 752
Donoghue v Stevenson [1932] AC 562
Fitzgerald v Lane [1989] AC 328 (HL)
Haynes v Harwood [1935] 1 K.B. 146
Iqbal v Prison Officers Association [2010] Q.B. 732
Letang V Cooper [1965] 1 Q.B. 232
Mahon v Osbourne [1936] 2 KB 14
McGhee v National Coal Board [1973] 1 WLR 1(HL)
Nettleship V Weston [1971] 2 QB 691 (CA)
Paris v Stepney Borough Council [1951 AC 367
Selwood v Durham CC [2012] EWCA Civ 979
Smith V Chief Constable of Sussex [2009] 1 AC 225 (HL)
Stansbie v Troman [1948] 2 K.B. 48
Sutherland Shire Council v Heyman[1955-95] P.N.L.R. 238
Swinney v Chief Constable of Northumbria Police [1996] 3 W.L.R. 968
The Wagon Mound (No 1) [1961] A.C. 388
Wilsher v Essex Area Health Authority [1987] Q.B. 730
[1] Percy H Winfield ‘The History of Negligence in the Law of Torts’ (1926a) 42 Law Quarterly Review 184
[2] [1932] AC 562
[3] [1990] 1 ALL ER 568
[4] [1971] CA
[5] [1955-95] P.N.L.R. 238
[6] [2009] 1 AC 225 (HL)
[7] [1948] 2 K.B. 48
[8] [1996] 3 W.L.R. 968
[9] [1935] 1 K.B. 146
[10] [1948] 2 K.B. 48
[11] [1935] 1 K.B. 146
[12] [1999] I.C.R. 752
[13] [2012] EWCA Civ 979
[14] 1856, 11 Ex 781, p 784
[15] [1988] QB 665 (CA)
[16] [1951] ALL ER 1078
[17] [1951 AC 367
[18] [1973] 1 WLR 1(HL)
[19] [1961] A.C. 388
[20] [1989] AC 328 (HL)
[21] Horsey and Rackley, Tort Law (2nd Edition, Oxford University Press,2011) 383
[22] [1968] 1 ALL E.R. 1068
[23] Steve Hedley, Tort (7th Edition, Oxford University Press, 2011)
[24] [1987] Q.B. 730
[25] [1936] 2 KB 14
[26] Paula Giliker and Silas Beckwith, Tort (3rd Edition, Sweet and Maxwell Limited, 2012)
[27] [1965] 1 Q.B. 232
[28] [2010] Q.B. 732
[29] [1981] Q.B. 432
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