John Russell v. Health Authority
On the belief that the defendant owed the claimant a duty of care and this duty was breeched, it must be considered whether the loss sustained is recoverable and if the defendant’s negligence was the cause of the loss. However, the law puts a limit on the amount of damages recoverable by rules of remoteness of damage.
This area is dominated by two main cases; they are, Re Polemis and Furness, Withy & Co 1921 and Overseas Tankship (UK) Ltd v. Morts Dock & Engineering Co 1961
Based upon the law in favour of the defendant, it could be argued that the damages suffered by John Russell whilst awaiting treatment was too remote and could not have been foreseen by the hospital. In his witness statement, Peter Marshall, the General Manager of Forte Hill Hospital stated that the resources of the institution were stretched almost to breaking point by injuries resulting from a multiple vehicle traffic accident on the M25 motorway, with this fact, it could be said that the hospital was in fact aware of the possibilities of patients contaminating infections and the effects of open wounds for a certain amount of time. On the other hand, as the hospital is a publicly funded institution, they cannot be expected to put some patients before others and cannot be responsible for the actions of all in the hospital as in the case of Hughes v. National Union of Mineworkers 1991
For the advantage of the defendants, the rule of Law that protects professionals can apply here. In the case of Rondel v. Worsley 1969, the House of Lords held that a barrister has an immunity from suit at an instance of his client in respect of his conduct and management of a court case and in respect of the preliminary work connected with the case, such as the preparation of pleadings. This means that a Barrister owes a duty to the Court and not the client, the same could be said of doctors, they owe a duty to the hospital or National Health, not to the patient.
From the opinion of other professionals in the medical field, amputation of the claimant’s leg would have been unnecessary had some form of avascular necrosis not invaded his wounds (Roe v. Minister of Health 1954 or Mckay v. Essex Area Health Authority 1982) with this, prosecution may assert that, although the hospital was busy and had many patients to deal with, they knew that the claimant could be infected but failed to recognise the risk. See Walker v. Northumberland County Council 1995.
As a result of this claim against the Health Authority, PC Regan is unlikely to be found liable for the outcome of the claimant’s condition due to intervening acts (novus actus interveniens). If Mr John Russell had been taken to the hospital straight after his accident and given immediate treatment, he would not have contaminated an infection talk less of being amputated, had the circumstances been like this, most of the liability would be on PC Regan and the MPC. Conversely the chain of causation was broken by the two and a half hour wait, which lead to the infection and amputation, this had nothing to do with PC Regan, he merely started the chain with the road accident but along the lines, this was broken, see Reeves v. Commissioner of Police of the Metropolis 1999. It is therefore submitted that the alternative remedy in this case would be insurance.
Patrick James v. PC Herbert Regan
In order to claim damages, the claimant must prove that he is suffering from what Lord Bridge described as a ‘positive psychiatric illness’ in the case of McLoughlin v. O’Brian 1982, and the defendant must foresee that by his actions there will be a risk of causing this recognised illness for there to be a duty of care. Though the claimant did not suffer any physical damage, prosecution may emphasize that he was a primary victim on the basis that he feared immediate danger and witnessed the whole accident, which resulted in his severe nervous shock Dulieu v. White 1901. On the other hand, defence may argue that there was no proximity and the defendant did not have foreseeability.
In the case of Hambrook v. Stokes Bros [1925] the courts allowed a claim based on what the claimant perceived which lead to a nervous shock, this can be implemented in the prosecutions case, Because Mr James believed his brother in law was dead at the time of the accident, it may be to his advantage, (See also Dooley v. Cammel Laird & Co Ltd [1964]). Although the class of persons who can sue are not limited to family members alone, the claimant must prove that he and the injured party had a special relationship as in Alcock v. Chief Constable of South Yorkshire Police [1992].
In his statement, the claimant Mr Patrick James described himself as ‘fat and slow and 40’ along with these, the fact that he was a widower supports the likelihood of a pre-disposition and questions his weakness and sensitivity in comparison to that of the reasonable man. This is well illustrated by the case of Bourhill v. Young [1943]. The requirements of the reasonable man standards were clearly articulated by the House of Lords in Glasgow Corporation v. Muir [1943].
Owen David v. Herbert Regan
The claimant David Owen makes his claim for damages in connection with his traumatic witness of John Russell’s injury on the evening of April 16th 2001.
Like Mr Patrick James, PC Owen saw the impact of accident and suffered symptoms of severe shock. The difference between them is that, here the claimant has no special relationship or close love tie with the injured party (Alcock & Others v. Chief Constable of South Yorkshire – as above) this excludes him from being a secondary victim. As a Police Constable, the claimant’s nervous shock was not a reasonably foreseeable consequence by the defendant’s negligence. (See King v. Phillips [1953]). Although the claimant witnessed the accident, he was not exposed to any immediate physical danger, as in White v. Chief Constable of South Yorkshire 1998. Policy dictates that the claimant ought not to be successful in his claim because the nature of his employment requires him to be called to and see such accident scenes regularly. However, prosecution may assert that there is a difference between being called to an accident as part of work and seeing an accident right before your eyes outside of work.
Lord Wilberforce adopted an approach, which held ‘because shock was capable of affecting so many people, the Law must place a limit upon the situations in which a claimant could recover in respect of psychiatric injury’ He held that there were three ‘elements inherent in any claim’ for psychiatric injury. They are:
- The class of persons whose claims should be recognised.
- Proximity of claimant to the accident (time & space).
- The means by which the injury was caused.
Where the claimant attempted to rescue the injured, it is not accepted that he thereby voluntarily accepted the risk of injury; this principle can be traced back to the case of Haynes v. Harwood [1953] and applies to anyone who tries to rescue another, see Chadwick v. British Transport Commission [1967]. However, where there is no real danger, the claimant who attempts a rescue may be held to be volens in respect of any injury he receives. Such was the case in Cutler v. United Dairies [1933].
In this case it could be said that the claimant, Mr Owen David, had knowledge of the risk of shock by rescuing but did not consent to it (See for example Dann v. Hamilton [1939]
Ann Sparks v. Health Authority
Being the girlfriend and close companion of Mr John Russell, The claimant Ann Sparks was visiting him in the hospital after being called by his brother in law. The question which then arises is whether the hospital should owe her a duty of care, as she was not an actual patient at the time (Donoghue v. Stevenson [1932]). When the claimant saw the state of her partner, she became extremely upset; here the aftermath test might well be applied, in McLoughlin v. O’Brian, the Court held that it was reasonably foreseeable by the defendant that the claimant would have suffered nervous shock after such a long time.
Because the claimant was not present at the scene of the accident, she is not a primary victim, but due to her close love tie with the injured party, she could be viewed as a secondary victim. On the other hand, the psychiatrist did not mention of the claimant in his report and nervous shock was not mentioned in her medical report, therefore the claimant should only be suing for physical damages.
In respect of the severe damage caused by the paranoid schizophrenic, it is undoubtedly very foreseeable that the consequences of leaving him alone with someone else (a black person to whom he makes racial comments when not under control) would be solemn. The fact that the hospital was aware of this behaviour and did not take reasonable care puts them at fault. See Reeves v. Metropolitan Police Commissioner 1999. Having said this, defence may argue that the hospital should not be liable for the acts of third parties; this was the case in Smith v. Littlewoods Organisation Ltd 1987. In favour of the Health authority, Remoteness of damage may be considered in relation to the fact that nobody knew the mentally ill patient was carrying a knife. Re Polemis and Furness, Withy & Co 1921.
Conclusion
In conclusion, the difficulty of drawing the line between situations where a duty of care is owed and situations where no duty of care is owed is an issue with which all within the law of tort must grabble. As with other parts of the law, there are a number of criticisms which have been levelled against the idea that tort is a deterrent function. One criticism being the duty to take reasonable care, it is said to be ‘so vague that it has little impact upon peoples standard of behaviour’.
In Junior Books Ltd v. The Veitchi Co Ltd [1983], lord Roskill opined that
‘Today, the proper control lies not in asking whether the proper remedy lie in contract… or tort… but in the first instance in establishing the relevant principles and then in deciding whether the particular case falls within or without those principles.’
BIBLIOGRAPHY
-
Hepple, Howarth, Matthews, (2000) Tort Cases and Materials, Fifth Edition, Butterworths.
-
Rogers H, (1994) Winfield & Jolowitz on Tort, Fourteenth Edition, Sweet & Maxwell.
-
Rogers H, (1998) Winfield & Jolowitz on Tort, Fifteenth Edition, Sweet & Maxwell.
-
McBride N, Bagshaw R, (2001) Tort Law, Longman.
-
Weir Tony, (1996) A Casebook on Tort, Eight Edition, Sweet & Maxwell.
-
Burrows A, (1994) Remedies for Torts and Breach of Contract, Second Edition, Butterworths.
-
Gracknell DG (2000) Obligations, The Law of Tort, Second Edition, Old Bailey Press.
-
Mullis A, Oliphant K, (1997) Tort, Second Edition, Palgrave.
In Donoghue v. Stevenson 1932, it was the first time the House of Lords recognised a general rule of liability or harm caused by negligence.
Lord Bridge described proximity in Caparo industries v. Dickman as a ‘convenient label’ identifying the features of different specific situations which… The law recognises pragmatically as giving rise to a duty of care.
It is in this case that a 3-stage test of foreseeability, legal proximity and fair & reasonable requirements were arrived at.
In this case, the mother of the last victim of the Yorkshire ripper was suing the Chief Constable for negligence – but the courts held that there was no proximity.
The test for breech can be found in the case of Blythe v. Birmingham Waterworks Co. 1856
The most accepted justification of vicarious liability is that, as the employer derives an economic benefit from the employee’s work, so he ought to bear any losses or liability incurred in the course of the enterprise.
1 ALL ER 433 - This case illustrates some of the factors the courts are likely to take into account in considering whether a contract of services exists.
(The Wagon Mound (No 1)) 1961 AC 388
Experts and professionals are judged by the sphere of their peers. They do not conform to the usual rules about breech i.e. they are judged by the ordinary skilled person because they have ‘special skills’
Novus Actus Interveniens simply means that an act or event has intervened to break the chain of causation, which was set in motion by the defendant’s negligence. It is at this stage that the close link between the rules relating to remoteness and the rules relating to causation becomes apparent.
Nervous Shock means a mental injury or psychiatric illness and not simply grief and sorrow.
(Brice v. Brown [1984] 1 ALL ER 997)
1 AC 310 – Hillsborough football stadium tragedy in which 95 fans were crushed as a result of overcrowding.
AC 92 - In this case, the House of Lords held that no duty of care was owed to the claimant because injury to her was not reasonably foreseeable.
2 AC 448 (Per Lord MacMillan)
1 KB 146, it was held in this case that the defendant could not rely on the defence of volenti because the claimant, as a policeman, was under a duty to try to stop the horses and therefore had not acted voluntarily.
AC 241, Lord Goff stated that ‘in such cases, it is not possible to invoke a general duty of care, it is well recognised that there is no general duty of care to prevent 3rd parties from causing such damage’.
