To successfully pursue a claim in the Tort of negligence there are three elements that need to be fulfilled. These are a legal duty of care, a breach of that duty and damage suffered as a result of that breach

The test is only used in novel cases which have never been brought to the courts before. A duty in non novel cases will be determined by precedent.

The second element in the Tort of negligence is breach of duty.

Once a duty of care has been established a breach of that duty must then be proven.

A breach of duty will only occur when the party owing the duty falls below the standard of care that is required by the particular duty in question.

The standard of care required is determined by the 'reasonable man' or 'objective' test. This test was first identified in Blyth v Proprietors of the Birmingham Waterworks [1856]7.

"...the omission to do something which the reasonable man, guided upon those considerations which ordinarily regulate human affairs, would do, or doing something which a prudent and reasonable man would not do."8

When establishing a breach of duty the burden of proof is on the claimants shoulders. The claimant must prove two things. These are causation in fact and causation in law.

Causation in fact loosely means that 'but for' the defendants negligent actions the claimant would not have suffered the damage. This is also known as the 'but for' test.

"... if the damage would not have happened but for a particular fault, then that fault is the cause of the damage; if it would have happened just the same, fault or no fault, the fault is not the cause of the damage."9

Causation in law is also referred to as remoteness of damage. The claimant must prove that the damage suffered is not too remote a consequence of the defendant's negligent act.

The negligent act by the defendant must be linked by a casual chain to the damage suffered by the claimant. This must be proven on a balance of probabilities.

There are two possible defences to a claim in the tort of negligence. The first is Volentia non fit injuria. The second is contributory negligence.

Volentia non fit injuria is a complete defence. This defence can be used in cases where there is a voluntary assumption of the risk of harm. If successful as a defence the claimant will recover no damages.

Contributory negligence can be used as a defence in cases where the claimant suffers damage partly through his own negligence. If successful then it may be used to reduce damages to the extent that the claimant is responsible for his own damages.

As seen in the case of Donoghue v Stevenson [1932]10 a manufacturer owes a legal duty of care to the ultimate consumer of his product. Relating this to the potential claim by Chris against Pukiepies a legal duty of cared is owed. The manufacturers are in breach of this duty as they have fallen below the standard of the 'reasonable man'. The reasonable man would take reasonable precautions to ensure that no defective products would reach their ultimate consumer. When establishing a breach of duty the burden of proof is on the claimants shoulders. This is done by using the 'but for' test. Chris was diagnosed with gastro-enteritis due to the poison in the decomposing finger. He can therefore successfully prove the breach. The damage caused to Chris has to be proven to not be too far removed (remoteness of damage). As a manufacturer it is reasonably foreseeable that if a decomposing finger was in one of their pies, a consumer eating the pie would get sick.

Chris has therefore proven the casual link on a balance of probabilities the manufacturers breach of duty has in fact caused his damage.

In the potential claim of Chris v Witherington Hospital the standard of care in question is not that of the 'reasonable man'. A person holding themselves as having a specialist skill will be judged on the standard of a reasonably competent person exercising that particular skill or profession. This test was established in Bolam v Friern Hospital Management Committee [1957]11.

The standard of care will not reduce due to lack of experience. This was held in Wilsher v Essex Area Health Authority [1988].12

This means that although the doctor that administered the antibiotic injection to Chris was a junior, the standard of care is still that of a qualified professional exercising that skill. Dr Hugh Sless has therefore fallen below the standard of a reasonably competent doctor exercising that profession. As a consequence of this he has breached his legal duty of care.

Causation in fact needs to be established in this case. It is reasonable to assume that should Chris have been asked if he were allergic to antibiotics prior to the injection then he would not have suffered an allergic reaction. Consequently 'but for' the actions of Dr Hugh Sless, Chris would not have suffered brain damage.

Causation in law also needs to be established to provide an unbroken chain of factual causation. It is reasonably foreseeable that should a patient be given an injection of drugs without first checking to ensure the patient has no allergies to the drug, the patient may suffer an allergic reaction. This allergic reaction may have severe consequences. A reasonably competent doctor exercising his profession would have known this. Dr Sless's negligent actions directly affected Chris. Therefore the damage caused to Chris was not too far removed. Consequently Chris has proven a casual chain on a balance of probabilities.

In the potential claim by Karen against Sally the duty of care owed by Sally is already established in statue law. The standard of care owed by Sally is that of a reasonable motorist. The standard of care of a reasonable motorist can also be found in statute law. As Sally had been drinking alcohol and was over the legal limit she fell below the standard of a reasonable motorist. Sally also fell below the standard by driving too fast. She has therefore breached her duty of care to her passenger Karen.

It is reasonable to assume that 'but for' the actions of Sally in that incident Karen would not have suffered personal injury. It is also reasonably foreseeable that if you are to drive a vehicle containing passengers, over the legal limit for alcohol consumption and proceed to speed that you may cause injury to those passengers.

Karen has proved that Sally's breach of duty has in fact caused her damage.

However Sally can at this point bring in a defence. The defence available to Sally is Volentia non fit injuria. This means there is a voluntary assumption of the risk involved. For this defence to succeed the defendant will have to show three things. These are knowledge of the risk involved, exercise of free choice by the claimant and a voluntary acceptance of the risk. If the defendant can prove all these things then the claimant will recover no damages. Karen knew that Sally had been drinking and was over the legal limit. Karen accepted the lift knowing the risks involved. This means that Sally's defence would be successful and Karen would be unable to claim any damages. Should this defence be unsuccessful Sally can also use contributory negligence and reduce the damages available to Karen.

If Karen chooses to pursue a claim against Witherington hospital for permanent paralysis then she may be presented with a few problems. The first question that needs to be asked is did Dr Bones fall below the standard of care of a reasonably competent doctor exercising his profession.

Should several other doctors state that they would have diagnosed Karen in exactly the same way as Dr Bones then he will not be held liable as this will be seen as common practise within a profession.

If Dr Bones did fall below the standard of a reasonable doctor exercising his profession then the burden of proof will be on Karen's shoulders. Proving a casual link can be more difficult when there is a possibility of more than one cause of the damage. It cannot be shown that as a direct result of the hospitals negligence Karen suffered permanent paralysis. This is due to the fact that there are multiple causes. The actual cause of Karen's injury is the car crash caused by Sally's negligence. When there is a loss of a chance of recovery, the House of Lords states there are no damages available. This overruled the decision made in Hotson v East Berkshire Area Health Authority [1987].13

In Karen's case unless she can prove on a balance of probabilities that she would have made a full recovery given the correct treatment there are no damages available. As Karen only had a 50% chance of recovery there are no damages available to her.

The last potential claim between Sally and Witherington Hospital involves nervous shock.

The case of Hambrook v Stokes Bros [1925]14 made it possible for close family members witnessing traumatic events involving close family members to claim for nervous shock.

These close family members are known as secondary victims. Secondary victims need show that their relationship to the primary victim was close enough that it was reasonably foreseeable that they may suffer shock if they think the victim has been or might be injured. It must also be shown that they were at the scene or its immediate aftermath. Finally they must show that the shock suffered was through seeing or hearing of the accident or its immediate aftermath.

To pursue a successful claim as a secondary victim for nervous shock the above criteria must be met.

Sally fulfils all of the above criteria. As a potential successful claim has earlier been established in her father's case against Witherington hospital, Sally would be able to sue Witherington hospital for post traumatic stress disorder.

Donoghue v Stevenson [1932] AC 532

2 Winterbottom v Wright [1842] 10 M & W 109

3 Donoghue v Stevenson [1932] AC 562

4 Donoghue v Stevenson [1932] AC 562

5 Anns v Merton London Borough Council [1978] AC 728

6 Caparo v Dickman [1990] 1 All ER 568

7 Blyth v Proprietors of the Birmingham Waterworks [1856] 11 Exch 781

8 Blyth v Proprietors of the Birmingham Waterworks [1856] 11 Exch 781

9 Cork v Kirby MacLean Ltd [19520 2 All ER 402

0 Donoghue v Stevenson [1932] AC 532

1 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

2 Wilsher v Essex Area Health Authority [1988] 1 All ER 871.

3 Hotson v East Berkshire Area Health Authority [1987] 1 All ER 210.

4 Hambrook v Stokes Bros [1925] 1 KB 141