Using the test from Wilsher v Essex AHA, where a junior doctor was not found liable for inserting an oxygen tube into a vein instead of an artery of a premature baby. The court held that there are many more causes for the baby to go blind, especially if born premature. On the balance of probabilities Miss Gamble would not have suffered the additional scaring if she had arrived at the hospital 20mins earlier. If the fire brigade had arrived earlier, the property would not have been destroyed.
It could be argued that both the electrician and the ambulance service may be found liable. The case of Fitzgerald v Lane&Patel may be applied. In Fitzgerald v Lane & Patel pedestrian was hit by one car and immediately hit by another car. The court held that both drivers were equally liable (50% each), when applying the ‘but for test’. In Naomi Gamble’s case, both the electrician and the ambulance service may be found liable for the damages.
The thin-skull rule also applies in this case, which states that ‘you take your victim as you find them’. An example of this rule can be found in the case of Smith v Leech Brain, where the claimant was burn on the lip, but has a pre-cancerous skin condition, which became cancerous as a result of the burn and caused his death. In this case the court held that ‘as long as physical injury had been foreseeable, it didn’t matter what the extent of this was.
Legal causation: there is a novus actus by the claimant. Naomi was correctly advised by her doctor to douse her wounds with cold water, but she decided to ignore that. It could be argued that if Miss Gamble followed the doctor’s advice, this could have lessen her personal damages. A good example of novus actus caused by the claimant would be the case of McKew v Holland, where the claimant suffered leg injury which leaded in stiffness and impaired mobility. He knew that and was advised not to go down the stairs, which he did and suffered broken ankle. The House of Lords refused his claim for the broken ankle and the reason was that the claimant ignored the advice he was given, therefore the chain of causation had been broken. The case of Mckew v Holland can be contrasted to Wieland v Cyril Lord Carpets, where the claimant had to wear a neck brace which restricted her abiliy to use her biofocal glasses. This resulted in falling down the stairs and suffering ankle injuries.
Remoteness: following the decision made in Wagon Mound (No1) the claimant must prove that the damages caused by defendant’s negligence were reasonably foreseeable. The property damage and the burns Miss Gamble suffered were reasonably foreseeable. However the additional scaring was not. Neither Miss Gamble or the electrician knew that her skin was particularly prone to such scaring as a result of burn injury. It was not foreseeable that the burns will leave her with permanent scars. Even though the electrician was not aware of that, he will still be liable because the ‘thin skull rule’ applies, which states that ‘you take our victim as you find them’.
Following the decision made in Spartan Steel, where the claimant suffered consequential economic loss, as a result of the defendant’s negligence. The defendant was liable for the damaged steel and for the profit he could have made if the steel was sold. However the court did not allow a claim for the steel hat could have been made while the factory was closed, which was simply classified as pure economic loss. In Naomi Gamble’s case the property damage was reasonable foreseeable, as well as the burning she suffered and any losses that are related to the burning.
It can also be argued that the economic loss from the cancelled even as reasonably foreseeable, using the Wagon Mound case again. It is stated that Miss Gamble was contracted to model he summer collection of Christian Deplore in the week following the accident. It is reasonable foreseeable that Miss Gamble would not have the chance to recover from the burns and will not be able to perform.
Miss Gamble will also be able to claim for ‘loss of chance’ following the decision in Allied Maples Group v Simons & Simons. The court held that in order to claim for loss of chance the claimant must prove:
- The claimant would have sought to secure the advantage which is the subject matter of the claim for valuation
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Where the claim depends on the hypothetical acts of a third party (where the claimant has lost real or substantial chance due to defendant’s wrongful act.
Following this decision Naomi will have to prove that there as a ‘real and substantial chance’ and she lost it due to Simon Shock’s fault. Base on the facts it is known that Naomi Gamble is a famous model and was contracted to model the summer collection of Christian Deplore.
Naomi Gamble v Ambulance service
Duty and standard of care owed from the ambulance service were both examined in the case of Griffiths & Others. A duty owed by an ambulance service as soon as a call is accepted. The ambulance service also has a duty to respond in emergency situations. The standard owed from the driver should be of a reasonably competent ambulance driver. Based on the facts, the ambulance driver who was sent to Miss Gamble was notoriously bad with directions, which leaded to arrival 45mins after the call was accepted. Reasonable response of 14mins by the ambulance service was given in Kent v Griffiths. In this case the ambulance arrived 45mins later and there wasn’t a good reason. Based on the facts the ambulance service has breached their duty.
Naomi Gamble v Fire Service
Using the case of Capital and Counties v Hampshire County Council, where it is stated that duty is owed by the fire brigades if they have worsen the situation. The fire brigades do not have the duty to respond to the call or to put the fire out. If the fire brigade causes further damage to the property, when an attempt is being made, they are more likely to be found liable. The standard owed should be of a reasonable competent fire service. Based on the facts the fire service have done nothing that caused further damage to the property.
Defences:
- Miss Gamble did not follow her doctor’s instructions. This can be used to prove contributory negligence and novus actus caused by the claimant.
- Emergency situations-allowance may be made in favour of both the ambulance and the fire services. It is said that mistakes are more likely to be made in emergency situations like this.
Kirsty Horsey and Erica Rackley, tort law 2009, page 86
Kirsty Horsey and Erica Rackley, tort law 2009, page 87
Kirsty Horsey and Erica Rackley, tort law 2009, page 226
Kirsty Horsey and Erica Rackley, tort law 2009, page 250
http://en.wikipedia.org/wiki/Loss_of_chance_in_English_law