Tort Law Problem Case. The Plaintiff (widow of the deceased) namely Mrs Fogg is alleging, inter alia[1] that the SimpleFlight.Com and Passepartout NHS Trust has caused the death of Mr Fogg and that the defendants are liable of negligence and trespass to t

Mr Fogg should have done something to prevent the formation of (DVT). Mr Fogg complaint the airline upon landing which means he was about to disembarked but  if he would have complaint well before during the journey then the air crew was responsible for helping him to move around and switch his seat as in the case of Olympic Airways v. Husain  claimants husband had asthma where ambient cigarette smoking can be dangerous he asked for non-smoking seats but he was provided seats near to the smoking section despite the fact that they complaint to the airline and requested to give them seats further away from the smoking section. The airline was held to be negligent.

The litigation involves Mr Fogg complaining for the blood clot. The airline is only liable if the damage so sustained is caused by an accident as stated in 1929 Warsaw Convention treaty Article 17 states that "The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft ..."

The conditions of SimpleFlight.com were not unusual or unexpected then the standard he choose for his travel as in the case Emma Moore V hotel plan where under the holiday contract the tour operator was liable for the damages received by the claimant even though the injuries were caused by the third party’s breach of duty. Mr Fogg was only in contractual relationship with 80 Day Tour Travel. Similar in the case Trevor [2009] it was held that tour operator is liable for the negligence by the suppliers for not taking precautions to secure a bed from collapsing.

Sitting in a cramped position give raise to the formation of blood clot in the deep veins of the legs so called “economic class syndrome”   similarly in the case of Scherer v Pan American World Airways Inc was held that the condition has not been caused by an art 17 “accident” Mr Fogg could have included in his hand language a pair of tight stockings by wearing of it can have prevented the raise to blood clot to back up my point I have the case of Church of Latter-Day Saints v Yorkshire Fire Authority. His own choice attributed for developing the risk of blood clot because of his unhealthy choice.

In my judgement SimpleFlight.Com is not liable for the consequent damages suffered by Mr Fogg and the evidence suggests that it is unjust and unreasonable to impose negligence by the SimpleFlight.Com.

Passepatout NHS Trust is Liable under Negligence and Trespass to the person

Under the doctrine of respondeat superior Passepatout NHS Trust is vicarious liability, for the negligent act and omissions of doctor case example Edmonds v Chamberlain Memorial Hospital where it is said it rely on the hospital to choose the doctor.  By looking at case of Viasystems (Tyneside) Ltd v Thermal Transfer [2006] it maintains that vicarious liability is the entire liability and Docks and in Harbour Board v Coggins and Graffith Ltd [1947] case Lord Macmillan stated: "That the crane driver was in general the servant of the appellant board is indisputable. The appellant board engaged him, paid him, prescribed the jobs he should undertake and alone could dismiss him." The hired employee is in charge but the real control and responsibility is of the institute/employer because it has ultimate authority to dismiss.  It is obvious that the NHS is liable of negligence to this claim. NHS Trust owes a duty of care to Mr Fogg under the neighbour principle of Lord Atkins.  Contrarily to the case of Blyth v Birmingham Waterworks (1856) Mr Fogg suffered professional medical negligence not general negligence the standard of care should have been fulfilled.

I shall apply the Bolam test which states “If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent". This lacks in the case of Mr Fogg and the doctor should have taken in account all the precautions. Lord Esher stated “whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognise that if he did not use ordinary skill and care in his own conduct with regard to those circumstances he would cause danger or injury to the person or property of the other, a duty arises to use ordinary skill to avoid such danger”. It was shown in Bolam and Jones v Fay case once the duty of care is breached the claimant is capable to be compensated.

Mr Fogg complained upon landing at the London airport and visited the local hospital, under Passepartout NHS Trust, where the doctor advised him that there was nothing to worry about and that the pain would subside in a couple of days.  I see unprofessional attitude feedback from the doctor by looking at the expert medical evidence which signifies DVT. The doctor was aware that Mr Fogg has just landed and had travelled the doctor should have called for X-ray or MRI scans.

With the help of direction of McNair J. Bolam-Bolitho test it proves the breach of duty of care and negligence by the doctor when the doctor conducts the inspection. Whereas Mr Fogg was under the anaesthetic therefore was unable to consent, but the doctor without Mr Fogg`s consent, made couple of incisions with a scalpel in the area of the blood clot and failed to locate the blood clot. Mr Fogg agreed for the anaesthetics it does not mean he agreed for incisions. In the case of Paula Thomas  the medical doctor negligently caused grievance to the claimant because of the doctor’s incorrect observation. It also suggests unreasonable medical practice because expert evidence shows that blood clot can be located by X-ray and MRI scans therefore the doctor did not apply proper surgical procedure, Hutchinson the doctor failed to diagnose in the hospital.  In the case Alice Mary v John Aymard  doctor failed to give proper advice.

Consent must be informed and voluntary, and the person must be capable to decide.  Under HCCA, 1996 section 10 states that there should be no treatment without consent. Consent must be expressed to be deemed and Mr Fogg only consented for anaesthetic, not for the incisions. Doctor held the treatment without examination and informing Mr Fogg as in the case of Janet  the MRI scans were not available for the patient (claimant), the defendant was liable for not informing the patient about the risk without MRI. Incisions amount to the trespass as said by Lord Steyn-“Surgeon owes a duty of care to a client describing to him the injuries which he might sustain”.

 Mr Fogg was not informed by the doctor of the risks the claim is valid to make under both negligence and trespass to person Sidaway v Bethlem Royal Hospital Governors [1985]  when it is remote side effects elaborate explanation may not be required to treat the main dangerous pronlem so Bolam test is irrelevant as said by Lord Scarman. But doctor caused Mr Fogg’s death not using MRI scanning which would have suggested the right treatment therefore he breach of the duty of care. In Chester v Afshar case “But for Test” for satisfied and doctor has therefore violate the right of Mr Fogg to choose. Doctor is liable for the trespass to person F v West Berkshire Health Authority.Because there was no need of emergency treatment without consent  implied consent is also unjustifiable case in point Airdale NHS Trust v Vland [1993].

The evidence that Mr Fogg died after two days of the  medical malpractice amount to trespass to the person and negligence by Passepartout NHS Trust case in point Mr Leslie Burke v GMC. Majrowski v guy’s and Mr Leslie Burke v GMC [2005] EWCA 1003 [2005]

Vicarious liability in regards to Passepartout NHS Trust can be understood by the case, Barnett v Chelsea  which suggest that if the doctor would not have act negligently than Passepartout NHS Trust would not have been liable too, and also in the case of Wilsher v Essex  it was enough to decide when the hospital caused injury.  these cases also illustrate the same point Bailey v Ministry  and Fairchild v Glenhaven  the employer increased the risk by keeping such a doctor in practice.,  Tankship (UK) Ltd v Morts Dock where it was held the D is liable for fouling similarly That is may be by foul that Passepartout NHS Trust hired the doctor but is still liable.

To conclude the case I hold NHS trust liable for the breach of duty of care towards the claimants husband Mr.Fogg simple flight are not liable due to the fact they were contracting on behalf of 80 day tour travel.  WORD COUNT: 2361

Case References: 530

Case list

1. Anns v London Borough of Merton (1977) HL
2. Alice Mary Fallon v John Aymard Wilson (2010)
3. Airedale NHS Trust v Bland [1993] 1 All ER 821 HL
4. Bailey v Ministry of Defence [2008] EWCA Civ 883.
5. Baker v. Willoughby [1970] AC 467
6. Barnett v Chelsea & Kensington Hospital Management Committee [1968] 1 All ER 1068
7. Blyth v Birmingham Waterworks (1856) ExchQuoted by Lord  Baron
8. Bolton v. Stone [1951] AC 850, [1951] 1 All ER 1078
9. Bonnington Castings Ltd v Wardlaw [1956] AC 613
10. Bolam v Friern Hospital Management Committee [1957] 1 WLR 582
11. Caparo v Dickman (1990) HL
12. Cork v Kirby MacLean Ltd [1952] 2 All ER 402
13. Chatterton v Gerson [1981] QB 432
14. Collins v Wilcock [1984] 3 All ER 374
15. Cummings (or McWilliams) v Sir William Arrol & Co [1962] 1 All ER 623
16. Cherer v Pan American World Airways Inc. (1976) 387 N.Y.S.2d 580
17.  Church of Latter-Day Saints v Yorkshire Fire Authority [1997] CA
18. Chester v. Afshar [2002] EWCA Civ 724; [2003] QB 356.
19. Donoghue  v Stevenson (1932) UKHL 100
20. Edmonds v Chamberlain Memorial Hospital, 629 SW2d 28 (Tenn Ct App 1981)
21. Funeral Services Ltd [2002] UKHL 22, [2003] 1 AC 32
22. F v West Berkshire Health Authority [1989] 2 All ER 545, 565-66.
23.  [1989] AC 328
24. Fardon v. Harcourt-Rivington (1932), 146 L.T. 391
25. Health care consent act 1996, c. 2, Sched. A, s. 25 (3).
26. Hotson v East Berkshire Area Health Authority [1987] 2 All ER 909
27. Hadley v Baxendale [1854]
28. Hutchinson v Epson & st Helier NHS trust 2002  
29. Janet Birch university college London hospital NHS foundation trust (2008)
30. Letang v Cooper [1965] 1 QB 232
31. Latimer v AEC [1935
32.  Leigh v Gladstone (1909). Martin, R v
33. McGhee v national coal board
34. Murphy v Brentwood District Council [1991] HL
35. Meadows v Patterson, 109 SW2d 417,419,429 (Tenn Ct App 1937)
36. Mr Leslie Burke v GMC [2005] EWCA Civ 1003
37. Mullin v Richards [1998] 1 All ER 920
38. Ms B v An NHS Hospital Trust. 2002. EWHC 429
39. Nettleship v Weston [1971] 3 WLR 370
40. Perry & Perry v Harris (a minor) [2008] EWCA Civ 907
41. Paris v Stepney Borough Council (1950) BC [ 1951
42. Palsgraf v Long Island Railway Co (1928) New York Appeals
43. Paula Thomas v Paul Curley (2011)
44. Re Polemis & Furniss, Withy & Co Ltd [1921] 3 KB 560
45. Roe v Ministry of Health [1954] CA. Shaw v DPP (1962)
46. Reeves v Commissioner of Police of the Metropolis [1999] (HL)
47. Re MENTAL PATIENT: STERILISATION) [1990] 2 A.C. 1 HL F. (
48. Sidaway v. Bethlem Royal Hospital Governors [1985] AC 871
49. Sayers v Harlow UDC [1958] CA
50. Vowles v Evans and Welsh Rugby Union Ltd [2003] CA
51. Watt v Hertfordshire County Council [1954] 2 All ER 368.
52. Winterbottom v Wright (1842) 10 M&W 109
53. Wilsher v Essex Area Health Authority [1988] AC 1074

Law of Tort 1 Supplementary Assignment                2011/12.

Dust v Hammer Ltd (1) and Drill NHS Trust (2)

The claimant's husband, Damien Dust, had died of asbestos-related mesothelioma. During his working career he had three exposures to asbestos; the first whilst working for a company which had since become insolvent, the second whilst working for a company who, upon discovering asbestos at their premises and in the vicinity of Damien’s working area, had not closed the premises or sectioned the area of asbestos off and whose liabilities as an employer had been inherited by the first defendant, and the third while he was self-employed. The court at first instance found as a matter of fact that each of these periods of exposure had more than doubled his risk of contracting mesothelioma.

The court also accepted as a matter of fact that Damien Dust, when he first set up in business demolishing premises containing asbestos, had financial constraints and occasionally worked without the correct safety equipment and breathing apparatus.

Damien received treatment at the Royal Drill Hospital, part of the Drill NHS Trust. When he initially presented himself at the hospital with symptoms of shortness of breath, constant chest pain; a cough and some weight loss, the examining doctor diagnosed asthma and prescribed an inhaler. The doctor did not examine Damien’s feet even though Damien complained that his feet were swollen nor did he do a chest x-ray even though Damien said his chest felt tight and heavy. The court at first instance found that such would have been standard procedure and, if a thorough examination had been undertaken, there would have been earlier treatment and an increased chance of survival.

Unclear J at first instance held;

1. This case presented two separate events; one relating to the contracting of mesothelioma; one relating to the treatment of the mesothelioma.
2. In relation to the first event and the first defendant, as there was no single cause for the mesothelioma, the claim against the first defendant fail. It was impossible to say that they caused the disease.
3. As to the second event and the second defendant, the claim against the Drill NHS Trust was successful because their negligent treatment reduced the chances of survival. The judge awarded nominal compensation because such only had to reflect the value of a chance of survival.

The claimant appeals to your court

You are to write the leading judgment for the case. With reference to negligence case law, write your judgment clearly stating the law, applying the facts to the law, and reaching a reasoned conclusion in favour of or rejecting the appeal.

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GUIDELINE  ASSESSMENT CRITERIA FOR LAW.

GRADE                FAIL                3rd                2:2                2;1                1

BELOW                 40%                40-49%        50-59%        60-69%        70%+        

CRITERIA

Discipline

Skills

Identification

Of legal issues        Fails to identify        Identifies                Good coverage        Good coverage        Good coverage

                Key issues        obvious issues        of obvious issues        of obvious issues        of all issues

                                Misses more         Recognises more        More subtle issues

                                Subtle issues        subtle issues but        recognised &

                                                inadequately        reasonably dealt

                                                covered                with

Application of         Poor or no        Weak but         Reasonable         Good application        Excellent application

Relevant law/        attempt at         satisfactory        application of law        of law to all issues        of law to all issues

Problem                application        application of law        to main issues        including those not        including analysis

solving                                to main issues                        covered by        of alternative

                                                                preceden t        outcomes

Research &        Very poor         weak referencing        Adequate         Clear referencing        Excellent referencing &

Referencing        referencing &        Evidence of basic        referencing        Evidence of         research in all areas

&use of legal        No evidence        research only        Evidence of further        detailed research

terminology        of further                                research                in some areas

                research

Knowledge &

Understanding

Explanation of        Insufficient         Some basic         Clear statement         Clear statement        Excellent statement of

Relevant law        detail on                detail on relevant        of most of         of all relevant law        all relevant law

                relevant statute/        statute/cases        relevant statute

                cases                                /cases

Transferable/

Key Skills

Written                 Inadequate        Adequate but         Reasonable        Good in all        Excellent in all

communication        Spelling &/or        significant errors        spelling/grammar         respects                respects

                Grammar                in spelling/grammar        & structure

                Poor structure        Structure needs

                                Improvement

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Submission date & time.        

11 PM to Moodle,     Friday 30th  March 2011.

Assignment to be submitted electronically onto the Law of Tort section of the Moodle site. Please refer to Moodle site for a student guide on how to submit via Moodle.

Please attach the assignment cover / submission sheet to the front of your assignment before submitting the work.  The cover sheet is available on Moodle.

The Law team strongly recommend that you do not leave submission of the assignment until the very last minute. You might experience technical problems with your computer. Last minute submission of your work is at your own risk.  Any late submission will be subject to deduction of marks under the University regulations.

         

Word limit; 2500 WORDS absolute maximum (no 10% flexibility).

Word process in Times New Roman size 14 and double line space.

As you are writing a judgment it would be appropriate to write in the first person. On this occasion, because you are writing a judgment, there is no need to include a bibliography but a case list will be expected.

However, unlike a real judgment, we would like to conform to the rules of academic writing by using appropriate footnotes and referencing.

Appendices will not be considered.

Please note the course rules on plagiarism. Cut and paste techniques can amount to plagiarism. When your work is submitted electronically, it will be scanned by Turnitin plagiarism detection software automatically and prior to receipt by the tutors. This software will alert tutors to any plagiarism

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