The reasonable forseeabilty test was brought about through Blythe v Birmingham waterworks. Lord Atkin tells us that liability arises when the defendant can reasonably foresee that his acts would be likely to injure his neighbour.
"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour." This is an objective test which is a matter of law. The damage is also too remote to claim for as the type of harm and not the extent was not reasonably foreseeable by Charles who was unaware of Dan’s medical condition that made him more susceptible to fractures.
Therefore, liability would not lie with Charles as he has not breached his duty of care as a road user.
As a doctor, regardless of her seniority in the medical field, Edwina has a duty of care towards her patient (Nettleship v Weston) – Dan, with whom she has close proximity. In disregarding the protocol by not sending Dan for a scan of his wrist and assuming the diagnosis of a sprain, Edwina is in breach of her care of duty and therefore liable for negligance
From the information given it is unclear if the ‘but for’ test would produce a positive result- but for the lack of the x-ray would Dan still require another operation and therefore would it still lead to a permanent loss of flexibility?
Since Dan is a minor- his mother would be entitled to claim on his behalf. His mother could argue that the breach of duty by Edwina through the lack of an x-ray could have materially contributed to the lack of flexibility in his wrist- that the act or omission of the doctor or nurse breached the duty of care. The nurse could argue that had another doctor done the same, she is not in breach Bolam v Frien Hospital Management Committee.
In , the test of not only requires that the defendant was the cause in fact, but also requires that the loss or damage sustained by the was not too remote. As with the policy issues in establishing that there was a and that that duty was , remoteness is designed as a further limit on a to ensure that the liability to pay is fairly placed on the defendant. The test used is to see whether any reasonable man would have been able to foresee that the direct consequence of the act caused the KIND of damage and NOT THE EXTENT to which the damage occurred- Wagon Mound no. 1.
At common law two approaches are discernible: the direct consequence rule and the reasonable foreseeability rule. The direct consequence rule is usually associated with the 1921 case, Re Polemis and Furness Withy & Co ltd and this approach held sway until the reasonable foreseeability rule established itself with a vengence in 1961 in Oversees Tankship (UK) Ltd v Morts Dock and Engineering Co Lid (The Wagon Mound (No 1) Put succinctly, Re Polemis stated that the defendant was liable for all the direct consequences of his or her negligence, whereas in the Wagon Mound (No 1) the Privy Council held that the defendant was liable only for those consequences which flowed from his or her negligence which were reasonably foreseeable. Before examining these two rules, two preliminary points must be made. First, as we shall see, a person is always liable for the consequences he or she intends to cause, even if these are unforeseeable. If I throw a stone at a person some 70 metres away from me intending to hit him, then I will be liable if I do hit him even though the chances of my succeeding are extremely slim. Second, in unintentional torts the question of remoteness does not arise unless liability is first established, and there can be no liability unless the defendant could foresee damage of some sort resulting from his or her act. If the defendant could not foresee any damage whatsoever from his or her actions, then the defendant cannot be liable and the question of remoteness will not arise. It is only when the threshold question of liability is first established that one can address the next question: liable for what?
Although remoteness could be claimed, it is the duty of the doctor to have checked his medical history and also to have conducted an x ray. Therefore it is plausible for Dan to recover compensation from the breach of duty by Edwina.