Tort lecture - 3

Tort lecture - 3

1. it must be established that the defendant has breached that duty , establishing breach of tortious duty of care is two stage process: 1) court must determine the standard that the defendant was expected to reach 2) court will then assess whether descendants breached that standard

2. standard

   • must be established that the defendant has breached that duty , breach is referred to as standard where fell below standard required of you , then you have breached that duty , standard set of law is of reasonableness , meant by looking at objective test , standard is objective as opposed to subjective which is personal based on individual characteristics , standard does not reflect avergae behaviour , a rexosbanle person is not a perfect person but what would they have done in the situation , reasonable person would not make a mistake such as driving beyond the line , once you get license you are judges to a reasonable competent driver of many years , we have L and P plate to let individuals know that we are a new driver , in tort you dont have degree of liability , you either have liability or not
   • two points about the standard of the reasonable person :1) the standard is objective 2)the standard does not always reflect average behaviour
   • objective standard of care
     • question for court is not what could we have expected this particular defendant to do in the circumstances ? rather question is what could we expect a reasonable person to do ?
       • Nettleship v Weston (1971) - mrs Weston wanted to learn to drive, husband said she can use the car and the friend would teach her and give her lesson , in one of the lessons although mr Weston was steering wheel a bit , it wasn't a car in which it had peddles , on one occasion she had turned the corner and the instructor had asked her to straighten out and panicked and hit a lamp post, nettleship was injured , she was behind the wheel court held if you are reasonable enough to be behind the wheel then you are competent to a reasonable driver , shows that she is liable and held liable as she is competent behind the wheel , held on same standard as other drivers , won't know your a new driver

3. objective standard of care : relevant consideration

   • foreseeability - was the harm foreseeable ? can only force what is known at the time
     • Roe v minister of health (1954) - claimant goes into hospital for minor operation in 1947 , treatment required anaesthetic , at time this was stored in containers but what wasn't known that tiny cracks can appear in the glass and contaminate the anaesthetic , that anaesthetic was prescribed to claiamnt and he was left with permanent paralysis , case came to trial in 1954 , common knowledge that if you store anaesthetic in this way it can be contaminated , it was unforeseeable risk , hence not liable as it was not foreseeable , if the harm that the claimant suffers is not foreseeable then the defendant cannot be liable, reasonable person cannot be expected to take proportion against unforeseeable risk
     • Pearson v lighting - a golfer hit another player with his gulf ball and was held to be liable he was plying a shot over an area In which he knew others were playing where the risk of causing harm is higher , it more likely that the day of care will be breached if precautions are not taken or the risk is taken
   • magnitude of the risk - what is the likelihood of the harm and what would be the potential damage , how dangerous is the risk that the situation would occur - how likely is it that risk will arise and how severe would the damage be if the risk did arise
     • Harris v Perry (2008) - parents bouncy castle in childrens party , boy was injured, reasonable person would say parent who is hiring it has to constantly supervise or say be careful or say that smaller children are allowed on bouncy castle, duty was that fo a reasonable caring parent, standard of care was the appropriate to protect the children from foreseeable risk of harm that fell short of serious injury , if there is serious harm in getting hurt in bouncy castle , it should not operate ,
     • likelihood of the risk
       • bolton v stone (1951) - this involved a claimant standing outside a house, hit by a cricket ball, it was foreseeable that when playing cricket , the ball would go outside the cricket patch , the cricket ball had been hit out of the ground , this is rear occurrence , in the last 30 years cricket ball was hit out of the pitch 6 times, the fence was around 17 feet , fence was 80 yards away from where the claimant stood , this was rare for this occurring , chance of injury occurring to those who was standing in position of claiamnt was so rare , that defendant was no negligent in contiuning to play cricket without taking proportions , reasonable person taking chances of such a situation occurring, reasonable person would have done nothing
       • miller v Jackson (1977) - the village they play summer time cricket , some house were built Newley on the cricket ground, cricket ball had been hit over a few times , gone through garden , ms miller was very annoyed, when the balls come over crickets ring around 2 to 3 , to ask for the ball back in a rude way , court held unfortunate that the ball go to people gardens , but the cricket field was there first , likelihood of harm occurring , balls went into house, if put a fence that was higher than 15ft ut would be more considerate, look at severity of the potential damage , when judging the reasonableness looking at the consequence
     • severity of damage
       • Paris v stepney borough council (1951) - the claiamnt only had sight in one eye due to injury sustained in war. during the court of his employment as a garage hand , a splinter of metal went into his sighted eye causing him to become complete blind , the employer did not provide safety goggles to workers engaged in the type of work the claiamnt was undertaking , the defendant argued there was no breach of duty as they ddi not provide goggles to workers with vision in both eyes and it was not standard practice to do so , there was therefore no obligation to provide the claimant with goggles, there was a breach of duty , employer should have provided goggles to the claimant because the seriousness of harm to him would have been treated than that experienced by workers with sight in both eyes , the duty is owed to the particular claiamnt not to a class of persons of reasonable workers , severity go harm was much higher then someone in his position
   • practicality of precautions - would cost outweigh the benefit
     • Latimer v AEC ltd (1953) - factory which was flooded by rain due to weather , nature of work in factory , water left oily residue on the floor, so compnay had choice to close down factory or continue operating and put dust down on the floor so that it was absorbing the oily mixture. only had enough dust to cover a bit of floor , claiamnt decided to open factory to cover floor as much as they could , so they remain operative, one of individual slips on oil which has not been covered , then brings a claim , has the factory been negligence in not covering whole floor or for opening , held that they have done all that a reasonable employee could be expected to do , closing factory could have been precaution and risk that it presented
     • overseas tank ship ltd v miller steamship co ltd , the wagon mound (No 2) (1967) - the defendant are the owners of the vessel wagon mound , which was moored 600 feet from a wharf,the plaintiff are owners of ships docked at the wharf , due to the defendants negligence , furnace oil was discharged into the bay causing minor injury to the plaintiffs ships , however the oil was then ignited when molten metal dropped from the wharf and came into contact with cotton waste floating on the water surface , the fire that resulted seriously damaged the wharf and two of the plaintiffs ships , if a reasonable man can force and prevent the risk then he is liable for the foreseeable damages
   • the utility of defendants conduct - this is the usefulness of conduct
     • watt v Hertfordshire - call saying that a women was trapped under trolly and fire service has to assist , fire service has a duty to lift the lorry, they wanted to respond quickly, hence did not secure it properly , when trying to get to person , that jack fell into claimant fireman , he bought a claim , the usefulness(utility) in trying to respond quickly to save women outweighs needs to secure jack securely , claiamnt should have known to stay out of the way , greater utility of the defendants conduct , less likely It would be that they would be held negligence, there was no breach of duty , the emergency of the situation and utility of the defendants conduct in saving a life outweigh the need to take precautions
   • common practice - if you fail to take safety proportion that everyone has taken , why ? would be negligence because everyone else is taking it , where the defendant followed a generally accepted practice , this is usually good evidence that they have taken resonable care
     • Bolitho v city and hackney (1997) - a 2 year old child was admitted to hospital suffering from breathing difficulties , a doctor was summoned but did not attend as her bleep was not working due to low battery , the child died, the Childs mother brought an action claiming that the doctor should have attended and intubated the child which would have saved the Childs life , the doctor gave evidence that had she attends she would not have intubated , another doctor gave evidence that they would not have intubated , the trial judge applied the Bolam test and held that there was no breach of duty , the claiamnt appealed , held that in applying Bolam test where evidence is given that other practitioners would have adopted the method employed by the defendant , it must be demonstrated that the method was based on logic and was defensible
     • Sutcliffe v BMI healthcare (2007) - had a operation and he went well , anaesthetic has an affect on him and he was in distress , wanted to vomit , a lot of his time they worried about anaesthetic , you need professional anaesthetic to administer it , anethitic that was administered he wanted to vomit and was depressed and couldn't clear his air way and couldn't get enough oxygen to his brain , this caused brain damage , nurse thought he was in deep sleep no realising that he couldn't clear his airway , was 33 years old, you have to check on clients every two hours, negligence couldn't be established before . the allegation that the nursing staff had been negligent not to assess his consciousness in the morning was held not to be negligent

4. special situations - special standards of care , professional standard of care

   • if you have a special skill we would treat you as having a special skill
     • bolam v friern hospital management (1957) - patient suffers from sever depression , few ways in which you can treat this depression, treatment is to administer electro compulsve therapy , given brief electric shock , risks and side effect is that is can cause muscle spasm , can be such a level that it can cause broken bones , when administering ECT what can doctors do to prevent this ? give relaxing drug to patients , use a restraining sheet to hold patients down , give patients enough information about risks so they are sure that they want to continue , doctorss have different view , they cannot be right or wrong , its progressive science , allow different doctors to deal with this in different ways , doctors would not breach duty if they did not follow one of this when undergoing the therapy as doctors have different opinion on what is right
       • here d purports to have a special skill , the ds conduct is judged according to the standard of a reasonable person having the skill that d claims to possess ,it is not judges by the standard of the reasonable lay person, law will not regard a prfessioanal d as having fallen below the required standard of care if it is show that ds conduct is regarded as proper by one responsible body of professional opinion , judges dont know everthgn about professionals such as doctors , engineer etc.. if someone in your profession has the same thing we would say that it Is proper . the law will not regard a professional d as having fallen below the required standard of care if it is shown that the ds conduct is regarded as proper by one responsible body of professional opinion even though other members of the ds profession may think the conduct is negligent
     • court said that is questionable
       • pierce v doncaster (2008) - the claiamnt was seeking damages because he had suffered serious harm and psychologically damage by remaining with his family when he could ave been taken into care , there were originally three principal incidents on which he was relying but by the time of this appeal there was only one that the council had been negligent in returning him to his family in 1977 after he had been put into voluntary foster care as there had been no proper review of this case , appeal by local authority abasing finding a claim for negligence arising from a case where the claiamnt argued that he should not have been left in care of his family
       • Montgomery v Lanarkshire health board (2015) - Supreme Court found in favour of informed consent on the part of a patient who is considering , or being advised to undergo medical treatment , in so doing the court has effectively conscripted the ambit of the Bolam test , made it difficult for a plaintiff alleging negligence , in context of medical services , to successfully bring a claim and in cases involving consent , replaced medical opinion with inforemed decision of the patient
     • limits on bolam principle - bolithio v city and hackney (1998) - if the evidence itself is not responsible in the sense that it does not withstand logical analysis , then judges can say that you have fallen below standards of care
   • bolam v friern hospital management (1957)
   • Montgomery v Lanarkshire health board (2015) - how much does doctors tell patients before surgery or procedure , when patients know too much and google it they hate it , when doctors have concerns it makes patients difficult to deal with , need years of training, if they tell you the risk , it might not make you a good patient and more anxious, makes it harder for you to deal with them , he needs informed consent , doctors want to give enough information , claiamant right to know everything , informed consent , this case includes a claiamnt who has very difficult labour and child was left with condition , sought damage against doctor who was responsible for this , she wanted to know all the risk involved , know that her labour and prgancny was going to be difficult , said you should have warned me of al the risk , changed her mind to have c section , had right to know the risk , court said you needs to give enough information which can be classed as informed consent
     • patient would know what is good and not good for them and take care of any risk , health care professionals is under a duty to take reasonable care to ensure that patients are ware of all material facts, patient must have enough information doctor cannot withhold information now , more you know the better

5. professional standard of care summary - doctor that might be negligence : 1) where the D purports to have special skill , the D's conduct is judged according to the standard of a reasonable person having the skill the d claims to possess, it is not judges by the standard of the reasonable lay person - comes from bowlen 2) the law will not regard a professional d a having fallen below the reuqired standard of care if it is shown that the D's conduct is regarded as proper by one responsible body of professional opinion , even though some other member of the d's profession may think the conduct is negligent - came from bowlen 3) If the person giving it was not responsible and if the evidence itself is not responsible in the sense that it does not withstand logical analysis - come from bolithio

6. professional standard of care - disclosure of the risk of treatment

   • sideway v bethlem royal hospital governors (1985) - how much should we tell the patient , doctors decided what Is material now you have to disclose all risk to patient
   • Chester v Afshar (2005) - patient went in for operation on back , nature is that there is a risk , she says is there nothing I should be concerned about , chance of risk occurring , doctor responded well I have fir culled anyone yet , she undergoes operation turns out operation was not performed negligently and completed as it should have been , risk left her wheel bound due to nature of operation was a risk , negligence was established because he didn't tell her anything , not answer question properly

7. special situations - special standard of care - children - standard of care for children Is the standard which can be reasonably expected of a child at the same age

   • mullin v richards (1998) - claiamnt is 15 years old and so is defendant , two school girl was playing with plastic rulers during lessons , one of the ruler snapped and a piece of plastic flew into the claimant eye causing blindness , someone can potentially get hurt , held whether 15 year old girl can force that she can hold a injury , it is not foreseeable by a 15 year old child
   • orchard v lee ( 2009) - 13 year old boys playing tag , she said you cannot force any injury being caused when playing this , hence will not be liable

8. Res ipsa loquitur - the thing speaks for itself

   • Scott v London and st Katherine docks co (1865) - (i) the occurrence must be one that will not normally happen without negligence (ii) the defendant must have control of the thing which causes the harm (iii) the cause of the occurrence must be unknown to the claimant
   • this will apply : 1) where the cause of the event Is unknown 2) the event does not normally happen in the absence of negligence 3) the defendant has control over the thing that caused the damage