To find out whether Crispin had indeed breached that duty and had fallen below the standard of care that is appropriate to the duty owed he would be measured according to the objective standard of the “reasonable man”.
Therefore it can be said that a reasonable man would have foreseen the risk of injury to Crispin. Crispin’s chair was deliberately removed by his colleagues as he was about to sit down. As Crispin fell he put his hand out to try and save himself but broke his wrist as a result, Crispin also banged his head very heavily on the ground as he hit the ground. It was obviously foreseeable to his colleagues that Crispin would injure himself.
For Chris’s claim to succeed in the tort of negligence he will have to prove a duty of care was owed by Witherington hospital that was breached which resulted for his brain damage.
The Doctors owe a duty of care towards their patients and if they fall below the usual standard of care that is appropriate to them they will be liable for negligence. A vast number of people are judged by a normal man but a skilled professional i.e. doctor is not judged by an ordinary man nor is his action compared with those of the “man on the Clapham omnibus” this is because they are more skilled, they will be judged buy their own profession, however junior doctors will also be expected to exercise the same degree of skill as experienced doctors.
In the case of Bolam v Friern Hospital Management Committee [1957], the plaintiff agreed to and underwent electroconvulsive therapy, treatment for his mental illness. The plaintiff had sustained injuries due to the treatment and had sued the defendants in negligence claiming (a) that he should have been warned of the risk of fracture and (b) that relaxant drugs should have been administrated to reduce risk. The court held that medical treatment is not negligent if provided that the practice adopted is one which is considered proper by a responsible body of medical men skilled in said field. On the facts this test was satisfied.
It can be suggested that the Junior Doctor did not carry out the necessary head examinations to see if Crispin had any head injuries, and prescribed him paracetemol and told him that he would probably have a sore head for a few hours but that it would be better by the morning. There after Crispin suffered severe pain, lost consciousness, and was rushed to the Malheantun Hospital. The Doctors carried out a brain scan which revealed that Crispin had suffered a massive haemorrhage to the brain and extensive brain damage, as a result of a failure to treat it earlier.
Therefore the Malheantun Hospital was in breach of duty. It must also be proven that the doctor’s negligence had caused the brain haemorrhage he suffered which lead to his death. It can be said that the doctor will only be liable in negligence if Crispin would not have suffered the damage but for the doctor’s act or omission. If Crispin had been properly examined the condition could have been easily diagnosed and treated and he would have made a complete recovery. For that reason the doctors negligent is the main causation of his brain haemorrhage so he had been negligent in his treatment towards Crispin.
We have now seen that duty of care existed in some way or another in the above scenario however sometimes it is difficult to establish if a duty of care is existed in nervous shock because it has to be a recognised psychiatric disorder resulting from shock otherwise the “flood gate” arguments may intervene.
Quentin has been suffering from post traumatic stress disorder from the time he had seen his partner permanently die in such circumstances. This is a recognised psychiatric disorder which the courts will allow. The hospital should have acknowledged that seeing his partner die may trigger shock therefore a duty of care was to be imposed. Quentin is a secondary victim and it is more difficult for the courts to allow shock in this case, although grief cannot be claimed as shock.
Secondary victims have to show a close tie of love and affection for the victim, Quentin was Crispin’s partner and the love and affection is close. They will also have to witness the incident or its immediate aftermath this is up to two hours but recently it has accepted for the shocking event to last up to thirty-six hours. We can assume that this is in the range of two hours or within thirty six hours. So it can be said that Quentin could claim against Malheantun Hospital for post traumatic stress disorder.
In the case of Alcock v Chief Constable of South Yorkshire [1992], the tragedy of the Hillsborough disaster occurred, where at football, police had allowed a large group of supporters into caged a pen, which resulted to the stand to collapse and 95 people were crushed and killed. As the match was televised a large number of claims came through, varying from those present or not present, to those who had close family ties to the dead and those who were merely friends. The House of Lords refused all claims as this would have caused a ‘floodgate’ of claims. Therefore the following factors had been identified to determine whether a party may claim. They were as follows. The proximity of the relationship with a party who was a victim of the incident- an existence of a close tie of love and affection with the victim was needed for claim to be successful, or presence at the scene as a rescuer The proximity in time and space to the negligent incident- if a party experienced directly or in the immediate aftermath of the incident, then they are certified to claim. The cause of the nervous shock- the court accepted that this must be due to witnessing or hearing the horrifying event or the immediate aftermath.
This means of identifying whether a claimant would be successful in claiming for psychiatric damage came about from the case of McLoughlin v O’Brian [1982], in which a woman had been summoned to hospital an hour after her husband and children were involved in a car crash. One child and a result they were all in shock. The House of Lords held that since the victims were sufficiently close and the mother had arrived at the immediate aftermath of the incident, she could claim.
But in Crispin’s case, the junior doctor’s conduct was not agreed with by an alternative medical examiner. In Chester v Afshar [2002], the claimant suffered from back pains and was recommended, by a renowned neurosurgeon, to have an operation. Though the claimant did not wish to undergo the procedure but she was persuaded to go through it. There was a small risk in the operation which ranged from minor effects to paralysis. The claimed had suffered serious nerve damage and the courts accepted that the doctor had not warned her of these risks and there was negligence in the operation. The Court of Appeal had held that the doctor did not meet the standards required to give full details of information, which if had been given, the claimant would not have gone through the operation, thus not have suffered the nerve damage. This case carries the argument that improper medical procedure is a breach of duty of the doctor.
Bibliography
.
.
BOOKS
Winfield And Jolowicz On Tort 15th E.D by W.V.H Rogers
Sheet on Torts 1oth E.D, Margret Bazier & John Murphy
Case Book On Torts, Richard kinder 8th E.D
Modern Tort Law, Vivienne Harpwood 5th E.D
Cases
Alcock v Chief Constable of South Yorkshire [1992] 4 A11 ER 907
Blyth v Birmingham waterworks (1856) 11 Exch 781
Bolam v friern hospital management committee (1957)
Chester v Afshar [2002] 3 A11 ER 552
Hale v London Underground (1992) 11 BMLR
MC Loughlin v O’Brian [1982] 2 A 11 298 HL
Victoria railway commissioner v coultas (1888)
Blyth v Birmingham waterworks (1856) 11 Exch 781
Bolam v Friern Hospital Management Committee [1957] All ER 118
McNair J, Bolam v Friern Hospital Management Committee [1957] All ER 118
Victoria railway commissioner v coultas (1888)
Hale v London Underground (1992) 11 BMLR
Alcock v Chief Constable of South Yorkshire [1992] 4 All ER 907
McLoughlin v O’Brian [1982] 2 All 298 HL
Chester v Afshar [2002] 3 All ER 552
