In order to determine whether the claimant Kevin has any possible tort of negligence claim against the defendants; Miss Harriet, James and Lily, we must first establish whether there was a duty of care owed

Kevin and James

Kevin’s claim for negligence from James is unlikely to occur. Although when applying the Caparo test it can be recognized that there may be a duty of care owed due to the proximity relationship between the two students, however, this does not mean that there is a breach of duty. James, like Kevin, is in a class with ten-year-old children and therefore James falls under special standard of care – children. The Court of Appeal adopted an approach demonstrated in Mullin v Richards where two fifteen-year old school girls were playing with plastic rulers having mock sword fight. This play fight resulted into one ruler breaking and plastic from the ruler damage the claimants’ eye. It was held that the girls in this case were not held to standard of reasonable person but instead were held to standard of reasonable child of that age; the defendant was not held liable. Applying special standard of care and the objective test of reasonableness in this scenario, James could not have foreseen the harm caused to Kevin as a result of running across the classroom.  Kevin therefore does not have any possible negligence claim towards James.

Kevin and Lily

There are two steps that need to be considered in order to advise Kevin whether there is any possible negligence claim against Nurse Lily.  First, determine whether or not a duty of care was owed and establish whether there was a breach of duty. Second, consider two central principles that have been applied in determining the standard of care demanded of professionals.  

First, when applying the Caparo Criteria, it can held to impose a duty of care: (1) the damage as foreseeable when Nurse Lily pulled the paintbrush from Kevin’s eyes, (2) there was a sufficiently proximate relationship between Kevin and Nurse Lily and (3) it is fair, just and reasonable to impose a duty of care.  Given that there is a duty of care owed, we need to determine whether there was breach of duty. In order to do so, we can reflect on special standard of care – defendant claiming to have special or professional skill.

Second, we must consider the standard of care involving a person who, by possessing a particular trade or profession, holds himself or herself to having a special skill. In this scenario, Lily is the school nurse and thus holds herself to the standards of a medical nurse. The question of whether or not there is a breach of duty and can be recovered when the defendant is acting in an emergency and or when the Bolam Test is applied. The nurse, Lily, acted in the heat of the moment when she pulled out the paintbrush from Kevin’s eyes and therefore it can be argued that it may have been a bad decision and worst aftermath, at that moment, Lily saw a ten year old boy bleeding from his eye; she was forced to act quickly. In the case of Jones v Boyce, it was held by Lord Ellenborough C.J. that although the man who jumped off the coach to save his life was wrong in doing so, in the moment he had acted reasonably and thus could not be guilty of negligence due to acting in an emergency.

However, it can also be argued that The Bolam Test first element states, “The test is the standard of the ordinary skilled man exercising and professing to have that special skill . . .  It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.” According to the law, it was confirmed that the reasonable skilled person is held accountable to the post of their position. This can be illustrated with Wisher v Essex Area Health Authority case, where  a  junior doctor was held to the standard of the post in which he was occupying at that time, one of which a senior doctor would normally perform. Because the junior doctor was filling a post which involved performing an act which he was inexperienced in, when the mistake was made.  In treating the patient the junior doctor was not held to the standard of a normal junior doctor but instead to the one of a senior doctor. When applying the first element of The Bolam Test, Kevin can possibility claim negligence against school Nurse Lily arguing that as a professional. She is expected to be qualified in the sense of the same standard of care, which is required of all reasonable and professional nurses holding that same post.  

The second element of The Bolam Test as stated by McNair J., if “he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art,” an individual will not be held liable in negligence. This can be seen in Bolam v. Friern Hospital Management Committee, where Mr. Bolam was a mental patient suffering from acute depression and was given administering electro-convulsive therapy (ECT) which is an effective treatment for this condition; he had brief but severe electric shock.  This shock can cause muscle spasms of magnitude to break patient’s bones, as a result Mr. Bolam suffered fractured pelvis. In this case the doctor who administered (ECT) as a treatment for Mr. Bolam’s acute depression escaped liability even though there was a group of practitioners who opposed this conduct. If school nurse Lily is able to provide sufficient evidence that a group of nurses who opposed to pulling the paintbrush out of Kevins’ eye, than by applying the second element outlined in The Bolam Test, Kevin would not be able to claim negligence against Nurse Lily, thus she would not be held liable for the damages to his eye.

Conclusions

        Consequently given the specific facts outlined in the scenario, it remains quite clear that Kevin would not be able to claim any negligence against Miss Harrit and James. Although, it could be argued for and against nurse Lily, the final decision would be based upon the court. According to the elements set out in Bolam, Lily’s actions would not be considered negligent. Her decision to pull out the paintbrush was supported as she was forced to act quickly and by a reasonable body of professional opinion, though whether or not it had rational basis would be at the court’s discretion.

Bibliography

Primary Resources:

Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582.

Glasgow Corporation v Muir [1943] A.C. 448.

Jones v Boyce [1816] 1 Stark. 493.

Mullin v Richards [1998] 1 W.L.R 1304.

Wilsher v Essex Area Health Authority [1987] Q.B. 730.

Secondary Resources:

Richard Kidner, Casebook on Torts (Oxford University Press, 2010) 44-48

Silas Beckwith and Paula Giliker, Tort (Sweet and Maxwell, London 2011) 33,137-155

---