Breach & Causation - created from Mind Map

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Breach (Essay)

Causation (Problem Question)

2. Issues regarding the objective test and the reasonable man

1. Introduction

Breach of duty in negligence liability may be found to exist where the defendant fails to meet the standard of care required by law. Once it has been established that the defendant owed the claimant a duty of care, the claimant must also demonstrate that the defendant was in breach of duty.

The Standard of Care is tested OBJECTIVELY, this means that it fails to take into account any of the characteristics that the claimant possesses

The courts often impose the test of the reason man for the purpose of objectivity

Vaughan v Menlove

The defendant's haystack caught fire due to poor ventilation. The defendant had been warned on numerous occasions that this would happen if he left the haystack. The defendant argued he had used his best judgment and did not foresee a risk of fire. The court held his best judgment was not enough. He was to be judged by the standard of a reasonable man.

Will be based around problems it determining causeation

Barnett v Chelsea & Kensington Hospital

The 'But For' Test

However as there is multiple issues of causation, the but for test will not suffice

Where there exist two or more causes which operate concurrently it may be factually impossible to determine which one was the cause. This has proved problematic not least because it is the claimant's responsibility to establish which one was the cause. On general principles the burden of proving this is on the balance of probabilities ie the claimant has to demonstrate that there is more than a 50% likelihood of the cause being the breach of duty of the defendant.

1. McGhee v National Coal Board

The employer asked him to work around bricks which exposed him to the dust. The employer failed to install showers within the establishment and the claimant had to cycle home covered in brick dust daily. The claimant contracted dermatitis as a result.

The employer was negligent as he materially increased the risk in causing the harm to the claimant

MCGHEE APPLIED IN

Showers would have reduced but not alleviated risk of dermititis

Wilshire v Essex

A premature baby was given too much oxygen by a junior doctor. This left him blind in 1 eye. The condition could have been caused by the excess oxygen he had been exposed to or it could have been caused by four other factors unrelated to the oxygen, but related to the premature birth.

McGhee was applied

Fairchild

This was a conjoined appeal involving three claimants who contracted mesothelioma. Each of the claimants had been exposed to asbestos by a number of different employers. They were unable to demonstrate, and medical science was unable to detect, which employer exposed each of them to the one fatal fibre.

Mesothelioma can be caused by a single fibre of asbestos. The condition does not get worse the greater the exposure. Once the fibre has embedded into the lung it can lay dormant for 30-40 years before giving rise to a tumour which can then take 10 years to kill. It will be only the last 1-2 years where a person may experience symptoms. By this time it is too late to treat.

What is Mesothelioma

Rule/Held: If the claimants could demonstrate that one employer had materially increased the risk of contracting mesothelioma (Under McGhee) they were entitled to claim full compensation from that one employer.

Barker v Corus

Mr. Barker contracted mesothelioma. He had worked for a number of different employers as well as self employed being exposed to asbestos

Held: Where exposed by number if employers more than once, they are all severally liable but not jointly liable for their portion of negligence. Only 1 could be at fault

Damages were reduced under Contributory Negligence Act for his part whilst self employed

Section 3 Compensation Act 2006

Any defendant liable under the rule held in Fairchild is jointly AND severally liable for the claimants mesothelioma

THIS OVERRULES BARKER V CORUS

SECTION ONLY FOR MESOTHELIOMA

Sienkiewicz v Greif

Barker v Corus still applies to brick dust

An office worker died from mesothelioma as the company made steel drums and asbestos was leaked into the offices atmosphere. Her duties took her all over the premises, she would also have been exposed to a low level of asbestos in the general atmosphere.

The Court of Appeal found that the proper test was whether the occupational exposure had materially increased the risk of contacting the disease.

Held: S.3 Compensation Act and Fairchild rule applied, even when there was only one previous employer, where the claimant was at risk, if the risk was materially increased due to employer, there is a breach

Held that McGhee reversed the burden of poof where the was potentially more than one cause

Problems can occur when the reasonable standard of care must be meeting for different circumstances.

Clapham Omibus

For example: A Learner driver is expected to be held to the same standard as a reasonably competent driver

One grey area the law has been seen over the years is the professional standard of care for medical negligence

Nettleship v Weston

Compare

Roberts v Ramsbottom

Mansfield v Weetabix

The standard of care applied to professionals with a particular skill or expertise is that of a reasonable person with same skill. A medical profession is expected to show greater degree of skill to a patient than the reasonable man.

Bolam v Frien

while undegoing treatment the defendant did not give any relaxant drugs to the patient. The claimant suffered a fracture. The doctor failed to warn the patient of any risk prior to the performance.

There was divided opinion amongst professionals as to whether relaxant drugs should be given. If they are given there is a very small risk of death, if they are not given there is a small risk of fractures. The claimant argued that the doctor was in breach of duty by not using the relaxant drug

Bolam Test also applies to diagnosis of a patient

Held: If a doctor applies with what is regarded as recognised medical practice then they cannot be liable for failure to meet the standard expected

Maynard v Health Authority

The Bolam test was applied, here there was a split decision between medical professionals about which surgical procedure would be sufficient, which was divided to 50% - 50%

Was held to still be in accordance with the recognised medical practice

Not liable

Sideaway

mid-1980s a majority of the House of Lords in Sidaway decided that it was on the whole a matter for doctors to decide how much to tell patients about the risks of treatment, and that therefore you could not sue your doctor in negligence for failing to inform you of a risk if other reasonable doctors would not have informed you of the risk. Thus the principle that the standard of medical care is to be determined by medical evidence.

The claimant suffered from pain in her neck, right shoulder, and arms. Her neurosurgeon took her consent for cervical cord decompression, but did not include in his explanation the fact that in less than 1% of the cases, the said decompression caused paraplegia. She developed paraplegia after the spinal operation.

SIDEAWAY WAS CONSIDERED IN

HOWEVER:Lord Scarman said that the Bolam test should not apply to the issue of informed consent and that a doctor should have a duty to tell the patient of the inherent and material risk of the treatment proposed.

Held not liable for POTENCIAL as followed R.M.P

Chester v Afshar

Claimant had suffered back pain for many years. There was a 1-2% chance that her state could worsen due to the surgery. Afshar failed to warn the risks to the patient. Patient's back worsened

Held: The doctor was negligent in his failure to inform of the risk of surgery. Sideaway was not applied

If the doctor had warned of the risks then the claimant could have taken time to discuss with family members what their choice would be and whether they water to undergo. Held that if she was aware of the risks she would not have undergone

Montgomery v Lanarkshire HB

Pregnant lady was diabetic, therefore expected to give birth to a larger baby. This would raise the chances of her getting 'SHOULDER DISTOSIA' thus making birth a lot more difficult. The claimant wasn't told and the effects occured

OVERRULED SIDEAWAY

Held: That the decision in Sideaway should be affirmed and the approach of Lord Scarman should be taken. Patients should be warned of the risk that could occur, allowing them to participate what will occur.

HOWEVER

Bolitho v City of Hackney H.A

Surely Mrs Montgomery's situation was already occurring, she could not opt out of the situation and warning of the risk would not have made the chances decrease

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 child's mother brought an action claiming that the doctor should have attended and intubated the child which would have saved the child's life. The doctor gave evidence that had she attended 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 claimant appealed.

In applying the 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.

1. Medical experts opinion was reasonable

Experts had logical basis for their decision

Unltimately it was for the court to decide whether the risks had been taken into consideration

Floodgates of litigation?

Should professionals integrity be challenged by non professionals?

Whitehouse v Jordan

Not liable