For liability in negligence to arise

The defendant owes the claimant a duty of care; (2) the defendant has acted in breach of that duty, and (3) as a result, the claimant has suffered damage which is not too remote a consequence of the defendant's breach.'3

Although an attempt was made to establish an underlying principle for all discrete duty situations in Heaven v Pender4 by Brett MR, it is the speech of Lord Atkin in Donoghue v Stevenson5 which is held to be the basis for establishing a duty of care. The judgement formulated two rules, a narrow rule which was applied to manufacturer's liability6 and although the rest of Lord Atkins speech was obiter dictum, it established a wide rule or what came to be known as the 'neighbour principle' which is considered a general duty of care.7 In Home office v Dorset Yacht Co Ltd8 Lord Reid said that the neighbour principle should 'apply unless there is some justification or valid explanation for its exclusion.' 9

Since the 'neighbour principle' is founded upon reasonable foresight of harm, which in itself is a very wide notion, an attempt to distil it was made in Anns v Merton London Borough Council10 which brought about a two stage test of which Cooke has said;

'The degree of foreseeability and the nature and magnitude of the risk are always relevant in deciding whether prima facie there should be a duty of care.'11

Although this came under criticism by Lord Keith in the case of Governors of the Peabody Donation Fund v Sir Lindsay Parkinson,12 and was eventually over ruled in Murphy v Brentwood District Council.13 Harris has stated that;

'The Murphy Lords took the view that the law would be improved by discarding the Anns propositions, not because they were unjust, but because they constituted an incorrect statement of the true common law and had in consequence thrown the common law into confusion.'14

This led to the current three stage test for establishing a duty of care, derived from the case of Caparo Industries v Dickman,15 firstly, the damage must be foreseeable, secondly, there must be sufficient proximate relationship between parties and thirdly it must be fair, just and reasonable to impose a duty of care in light of policy considerations. It was not strictly a three stage test in that there are no 'distinct stages' of the test, all factors are to be considered together16 but it is this test which must be applied to the relationships of those in our situation.

It has long been established that a duty of care exists between doctor and patient17 and it must be to the standard of someone in that 'post' if they are filling that position regardless of their qualifications.18 It is obvious that such a duty existed between Doctor Foot and Daisy but to be foreseeable in this context is to be in the sense of Donoghue v Stevenson,19 in this way foresight is closely linked with proximity. An illustration of when a victim is foreseeable can be found in Langley v Dray20 with a contrasting example of when a victim is not foreseeable is to be found in Bourhill v Young [1943].21

The second criteria of proximity, which can also mean 'close and direct relations'22 is exemplified in Watson v British Boxing Board of Control.23 When we apply these cases it is evident that such a relationship existed between Doctor Foot and Daisy because Doctor Foot preformed the operation on Daisy and there for should have had her in his contemplation, as in Langley v Dray24 and was solely in charge of the operation on daisy and therefore responsible for her safety, as in Watson v British Boxing Board of Control.25 However the type of damage Daisy sustained must still be addressed.

The third, and arguably the most important factor necessary to impose a duty of care is the last part of the Caparo26 criteria, namely that it is, fair, just and reasonable to impose such a duty. This is in part less concerned with a layman's conception of what is fair, just and reasonable and more concerned with legal policy considerations27 which exist to impose a limit to liability.28 The Court has imposed this limit in many cases.29 And have even denied claims on the grounds of public policy as in McFarlane v Tayside Health Board.30 According to Christian Witting without the Caparo31 test; 'It is difficult to conceive how duty issues can properly be analysed without resort to each of the three elements in the test'32.

While ultimately this criterion is for the Court to decide in light of policy factors, and on the facts of each case, so far it would appear that Daisy could establish that a duty of care existed between her and doctor Foot. Now we must examine the facts further to see if this duty has been breached by considering if;

'The defendants conduct has fallen below the standard of care required in all circumstances. The standard set by the law is one of reasonableness'33

The 'reasonable man test' shown in Blyth v Proprietors of the Birmingham waterworks34 and applied in Glasgow Corporation v Muir35 is an objective standard, as recognized in Nettleship v Weston36 This test however, would not apply to Doctor Foot as the standard of care owed by professionals is somewhat higher. In the case of Bolam v Friern Hospital Management Committee37 McNair J stated that a different standard of skill was appropriate to doctors. The test should be the 'standard of the ordinary skilled man exercising and professing to have that particular skill.' Whilst accepting that there existed a contrary body of medical opinion on methods of treatment in this procedure the court held that a doctor would not be liable merely because of this. Brazier and Miola have argued that;

'Many academic commentators and organisations campaigning for victims of medical accidents perceive that the Bolam test has been used by the courts to abdicate responsibility for defining and enforcing patient rights.'38

The Bolam39 case was applied in Sidaway v Bethlem Royal Hospital Governors40, where similarly because there was conflicting medical opinion on treatment the action failed. However, it was also said that when a doctor is asked by a patient about risk, he must answer 'truthfully and as fully as the patient requires'. This principle was applied in Chester v Ashfar41 where a patient, who had asked about the risks involved in her forthcoming spinal surgery, had received the reply that the surgeon 'hadn't crippled anyone yet'. Accordingly the Court held that the surgeon making the statement was negligent.

The Bolam42 test had conditions imposed on it in Bolitho v City & Hackney Health Authority.43 Although this case was decided on causation the house said that just because one body of opinion would accept a procedure did not mean that the Courts were bound to accept it merely because of Bolam.44 Lord Browne-Wilkinson said that in certain circumstances where two conflicting expert opinions were given a judge could reject the one which is 'logically indefensible'. On the facts provided we do not know if the loss in feeling in Daisy's left foot is a direct result of the operation or if there were any risks involved in the procedure but if either of these were in fact the case, taking into consideration the above case law, Daisy could argue that Doctor Foot was negligent in not informing her of the risk and that his care had fallen below the acceptable level per Bolam45 and Bolitho.46 Therefore Daisy could bring an action for damages against both the doctor and Whipitoff hospital through vicarious liability even if there were a contrary body of opinion according to Bolitho47 this would not automatically mean that the Doctor would escape liability. If it was shown that the loss of feeling had nothing to do with the operation and there were no risks of which Daisy had to be appraised of, then doctor Foot could not be held to be negligent nor could he be held to have committed a battery because if someone is unable to express themselves, for instance if they were unconscious, a doctor can lawfully treat them in their best interest as per Re T48.

We do know however, that Doctor Foot failed to examine Daisy49. In Vo v France50 it was held that, had the claimant initiated an action on the grounds of medical negligence due to the doctors failure to examine her she would have had that right. Therefore at this stage Daisy could, on the application of Vo v France51 commence an action for damages against Doctor Foot in negligence and Whipitoff Hospital through vicarious liability.

After establishing a duty of care exists under the Caparo52 criteria, and that the duty has potentially been breached we now must look at causation and remoteness of damage. The test for causation is the 'But for test' taken from Cork v Kirby Maclean Ltd53 applied in Barnett v Chelsea & Kensington Hospital Management Committee54 and Chester v Ashfar.55 Assuming, as we can on the evidence given that there was nothing wrong with her foot before the operation and there was no known pre-existing medical condition, we can presume that causation has been satisfied.

Issues of remoteness arise when deciding whether all damage can be attributed to the causation and were addressed in The Wagon Mound No. 156 where the court found the defendant not liable for fire damage as it was not foreseeable to the reasonable man that it would have occurred and similarly in Tremain v Pike57 If the damage to Daisy's foot is considered to be remote or an extreme reaction to the operation, remoteness may still be satisfied that the general type of damage was foreseeable as in Hughes v The Lord Advocate58 also it is important to note the 'eggshell skull rule'.59 On the basis of the cases discussed above it is possible to conclude that Daisy should be advised that she has satisfied all the requirements for bringing an action for negligence against Doctor Foot and Whipitoff Hospital.

Daisy could claim Res ipsa loquitur which basically means that the thing speaks for itself. The facts of this scenario are very similar to those of Cassidy v Ministry of Health60 where the same claim was made.

In general the burden of proof rests with the claimant who must show that all the elements previously discussed are present to show that on the balance of probabilities the 'defendant was careless' and that the 'negligence caused the harm'. It does not mean that the burden of proof is reversed rather that the 'the circumstances themselves may be treated as evidence of carelessness'61 as in Scot v The London and Saint Katherine Docks Company62. Williams has stated that;

'It implicitly accepts that the policy justifications for it include disparity of knowledge and the legitimacy of putting pressure on those who are in the best position to know to advance their explanation.'63

The burden of proof will still reside with Daisy and have to be proven in the usual way, but again, assuming that there was nothing wrong with her foot before the operation and there was no pre-existing medical condition, if the circumstances 'strongly suggest negligence, then the claimant may have little else to do but state the facts.'64 By applying Cassidy v Ministry of Health65 we can advise Daisy that she would have a very convincing case for Res ipsa loquitur.

In this scenario it could be argued that daisy could bring an action against the multiple tortfeasors responsible for the damage to her foot, the member of staff in the clerical office who mistyped the consent form. The nurse who told Daisy that it was ok to sign it and Doctor Foot who failed to examine daisy and who preformed the operation. A situation similar to this occurred in Fairchild v Glenhaven Funeral Services66 were it was impossible to tell which employer was responsible for the asbestos which caused the cancer as the claimants had similar jobs with different employers over the years. When this happens;

'In such a case, proof that a defendant's wrongdoing had materially increased the risk of contracting the disease was sufficient to satisfy the causal requirements for liability. Applying that approach, the claimants could prove causation on a balance of probabilities, and the defendants were liable.'67

Although this is unlikely as ultimately the doctor had an obligation to examine Daisy.

Doctor Foot could claim the defence of volenti non fit injuria68 on the basis that he had preformed the operation with the signed consent of Daisy as long as the requirements of 'agreement to the risk, full knowledge of the nature and extent of the risk and voluntary choice by the claimant'69 were met unlike in Smith v Baker.70 However, as Daisy did not read the consent form nor was made aware of any risk at all associated with the operation the defence is unlikely to succeed. He may be able to claim a partial defence under contributory negligence bringing a reduction in damages if successful.71 This would mean attributing fault to daisy, as in Froom v Butcher72 for signing the consent form without reading it and perhaps the clerical office for negligently preparing the form on which he had relied and consequently the Hospital would be liable under employers liability. Daisy could pursue the nurse for negligent misstatement because in Hedley Byrne v Heller73 there arises a duty of care when there is a;

'A special relationship between the parties; a voluntary assumption of responsibility by the party giving the advice; a reliance on that advice by the party receiving it; and it must be reasonable for that party to have relied on that advice.74

As nurse and patient such a relationship existed and Daisy did both rely on the advice that it was a 'simple document' which was 'ok to sign' and, as she was talking to a nurse it would have been reasonable for her to follow the nurse's advice. Lord Reid said in this case that in a business context where someone chose to give advice rather than give no advice or attach a warning to it then they will be 'considered to have voluntary assumed responsibility for that advice'75 Kit Barker when talking of voluntary responsibility stated that;

'The key proposition entailed by this model is that the defendant has made an implied promise ('warranty') of care to the plaintiff. This promise is to be inferred from a course of conduct (in this case from the making of a statement of fact in circumstances in which there was no obligation to do so);'76

Therefore Daisy could bring an action for negligent misstatement per Hedley Byrne77 against the Nurse.

In the matter of Daisy suffering from depression this in itself would not lead to damages as the condition must be a recognized psychiatric illness. Because she has been diagnosed with post traumatic stress disorder as a result of depression she would meet the criteria. Further it must be proven that the psychiatric damage is a result of the operation for Daisy to be successful. In Bourhill v Young78 the Court held that whilst there would be liability for other road users in this case the claimant was too far removed from the scene to be a foreseeable victim and as a stranger to the injured party she was outside the area of foreseeable shock. Daisy would be considered a primary victim79 as in Page v Smith80 where the claimant was awarded damages for psychiatric injury even though only physical injury was foreseeable. The 'thin skull rule' applied It was held that, in the case of primary victims, there should be no distinction between physical and psychological harm. In Simmons v British Steel plc81due to physical injury the claimant developed a skin condition and a depressive illness. The Court held that because they 'had exposed him to a foreseeable risk of physical injury' they were liable for all the damage.82 This would mean that on the application of Simmons v British Steel plc83 Daisy could bring an action for damages for psychiatric harm caused as a result of Doctor Foot's operation.

Customarily, for policy reasons the position on hospital doctors was that a hospital was not vicariously liable for their actions84 but in Cassidy v Ministry of Health85 Lord Denning stated that;

'The hospital authority is liable for the negligence of professional men employed by the authority under contracts for services as well as under contracts of service. The authority owes a duty to give proper treatment - medical, surgical, nursing and the like - and though it may delegate the performance of that duty to those who are not its servants, it remains liable if that duty be improperly or inadequately performed by its delegates.'

As established Doctor Foot was an employee who committed the tort in the course of his employment through a negligent act as in Century Insurance Co Ltd v Northern Ireland Transport Board86 therefore with the application of Cassidy v Ministry of Health87it makes no difference if Doctor Foot had carried out both toe operations as a visiting consultant surgeon and my answer that Whipitoff Hospital is vicariously liable remains the same.

1 See Donoghue v Stevenson [1932] AC 562, at 618-19 (per Lord Macmillan): 'The law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness where there is a duty to take care and where failure in that duty has caused damage. In such circumstances carelessness assumes the legal quality of negligence and entails consequences in [the] law of negligence'; See also Haynes v Harwood [1935] 1 KB 146, at 152 (per Greer LJ): 'Negligence in the air will not do; negligence, in order to give a cause of action, must be the neglect of some duty owed to the person who makes the claim'. Referenced in N. McBride, 'Duties of Care--Do they really exist?' (2004) 24 Oxford Journal of Legal Studies, pg 421

2 W. Rodgers, Winfield and Jolowicz on tort, (Sweet & Maxwell, London, 17th edn, 2006) pg 132

3 P. Giliker and S. Beckwith, Tort, (Sweet & Maxwell, London, 3rd edn, 2008) pg 22

4 Heaven v Pender [1885] ALL ER Rep 35

5 Donoghue v Stevenson [1932] A.C. 562

6 This was the rule from 1932 until 1987 when an EU directive on product liability cumulating in the Consumer Protection (NI) Order 1987 became the authority on manufacturer's liability. However, if it is not possible to utilise the Consumer Protection (NI) Order 1987, i.e. for claims less than '275 then Donoghue v Stevenson [1932] A.C. 562 will still be used to establish if a duty of care exists.

7 Donoghue v Stevenson [1932] A.C. 562 at page 581 'You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question'

8 Home office v Dorset Yacht Co Ltd [1970] A.C. 1004

9 Home office v Dorset Yacht Co Ltd [1970] A.C. 1004 at 1028

10 Anns v Merton London Borough Council [1978] A.C. 728 Lord Wilberforce instigated a two stage test; 'sufficient relationship of proximity', if yes prima facie duty of care and further or secondly if the answer is yes then it is essential to think about whether there are any policy reasons which influence or restrict the extent of the duty.

11 R. Cooke, 'An Impossible Distinction' (1991) 107 Law Quarterly Review, pg 48

12Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd [1984] 3 All ER 529 when he said that as well as proximity the Court must determine if it is fair, just and reasonable to impose a duty of care.

13 Murphy v Brentwood District Council [1990] 2 All ER 908 The judgement talked of implementing an incremental method in establishing a duty of care. See also C. Elliott & F. Quinn, Tort Law, (Pearson Education Ltd, Essex, 5th edn, 2005) pg 18

14 J. Harris, 'Murphy Makes it Eight- Overruling Comes to Negligence', Oxford Journal of Legal Studies, Autumn 1991, Vol 11, pg 418

15 Caparo Industries v Dickman [1990] 2 A.C. 605

16 J. Steele, Tort Law Text, Cases, And Materials, (Oxford University Press, Oxford, 2nd edn, 2010) pg 162

17 C. Turner & S. Hodge, Unlocking Torts, (Hodder Education, London, 3rd edn, 2010) pg 56

18 Wilsher v Essex Area Health Authority [1987] QB 730

19 Donoghue v Stevenson [1932] A.C. 562 as in a person who should have been in reasonable contemplation at the time of the act.

20 Langley v Dray [1998] PIQR P314 19 where it was held that a driver of a stolen car should have known that by accelerating and driving recklessly he would cause the policeman who was in pursuit to do the same. The driver had an obligation not to generate such danger and was in breach of that duty.

21 Bourhill v Young [1943] AC 92 a pregnant woman who came on the scene of an accident, claimed to suffer nervous shock as a result of hearing it and seeing blood on the road, she then gave birth to a still born child. The Court held that whilst there would be liability for other road users in this case she was too far removed from the danger zone and did not know the victim to be a foreseeable victim.

22 P. Giliker and S. Beckwith, Tort, (Sweet & Maxwell, London, 3rd edn, 2008) pg 28

23Watson v British Board of Boxing Control Ltd [2001] QB 113419, 20 it was claimed that had Watson received immediate resuscitation he would not have been as badly brain damaged, the Court agreed saying that because the Board were in sole charge of safety arrangements there was sufficient proximity for the board of control to owe a duty of care to the boxers.

24 Langley v Dray [1998] PIQR P314 19

25Watson v British Board of Boxing Control Ltd [2001] QB 113419, 20 it was claimed that had Watson received immediate resuscitation he would not have been as badly brain damaged, the Court agreed saying that because the Board were in sole charge of safety arrangements there was sufficient proximity for the board of control to owe a duty of care to the boxers.

26 Caparo Industries v Dickman [1990] 2 A.C. 605

27 C. Elliott & F. Quinn, Tort Law, (Pearson Education Ltd, Essex, 5th edn, 2005) pg 20

28 J. Steele, Tort Law Text, Cases, And Materials, (Oxford University Press, Oxford, 2nd edn, 2010) pg 163

29 For example Kelly v Corston [1997] 4 All ER 466, Clunis v Camden and Islington Health Authority [1998] 3 All ER 180, Phelps v London Borough of Hillingdon [200] 4 All ER 504.

30 McFarlane v Tayside Health Board [200] 2 AC 59 the claimant attempted to claim for the cost of raising a child who had been conceived in spite of her partners vasectomy. The court held that it would not be fair, just and reasonable to award compensation for the birth of a healthy child.

31 Caparo Industries v Dickman [1990] 2 A.C. 605

32 C. Whitting, 'The Three Stage Test Abandoned in Australia ' Or Not?' Law Quarterly Review, April 2002, Vol 118, pg 225

33 P. Giliker and S. Beckwith, Tort, (Sweet & Maxwell, London, 3rd edn, 2008) pg 139

34 Blyth v Proprietors of the Birmingham Waterworks [1856] 11 Exch 781 a wooden plug which allowed, in times of need, for water to escape from a mains pipe up to the street became loose in exceptional weather conditions and caused flooding to the claimants house. The court held that the defendants had done all they reasonably could have to prevent the occurrence, therefore there was no liability. Alderson B stated that 'Negligence is the omission to do something that a 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.'

35 Glasgow Corporation v Muir [1943] AC 448 a tea urn was spilled and scalded children. The claim for damages failed. The Court applied the reasonable man test from Blyth v Proprietors of the Birmingham Waterworks [1856] 11 Exch 781 and said damage was not foreseeable and the reasonable man test is impersonal and he is free from both over-apprehension and over-confidence.

36 Nettleship v Weston [1971] 2 QB 691 where a learner driver crashed into a lamp post injuring her instructor. The court held that even though she was a learner driver she was expected to have the same level of skill as other road users. where Lord Denning said about the reasonable man test at page 700 "It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question": see Glasgow Corporation v. Muir [1943] A.C. 448, 457 by Lord Macmillan. The learner driver may be doing his best, but his incompetent best is not good enough. He must drive in as good a manner as a driver of skill, experience and care, who is sound in wind and limb, who makes no errors of judgment, has good eyesight and hearing, and is free from any infirmity'

37 Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 the claimant suffered a fractured pelvis as a result of not receiving relaxant medication or restraints during electro-convulsive treatment for depression but his action failed because the Court accepted evidence that doctors had a divided opinion as to whether or not drugs or restraints should be administered and a doctor would not be negligent if he followed an excepted practice even though there was a contrary view.

38 M. Brazier & J. Miola, 'Bye Bye Bolam: A Medical Litigation Revolution? Medical Law Review, 8, Spring 2000, pgs 85-114, at pg 85

39 Bolam v Friern Hospital Management Committee [1957] 2 All ER 118

40 Sidaway v Bethlem Royal Hospital Governors [1985] A.C. 871 this case concerned a woman suffering from neck and shoulder pain who was advised to have a back operation. The surgeon did not inform her of the 1% risk and after the resulting injury occurred, the woman claimed that the surgeon was negligent in not informing her and had he, she would not have carried on with the operation. The court held that in some cases there was a duty but this is subject to an overriding duty to act in a patients best interests i.e. where disclosure of a small risk might be given undue significance in a patients decision making but the Court also held that when asked by a patient a doctor must answer truthfully and as fully as the patient requires. The judgement talked about a vindication of rights test as in when a doctor does not tell of a risk and it then materialises, that non foreclosure undermines the right of the patient to be told of the risks.

41 Chester v Ashfar [2005] 1 AC 134

42 Bolam v Friern Hospital Management Committee [1957] 2 All ER 118

43 Bolitho v City & Hackney Health Authority [1998] AC 232 where a two year old boy was admitted to hospital suffering from breathing difficulties, he suffered a heart attack and brain damage as a result, the Court heard eight conflicting expert medical opinions on intubation, five for and three against so action failed but

44 Bolam v Friern Hospital Management Committee [1957] 2 All ER 118

45 Bolam v Friern Hospital Management Committee [1957] 2 All ER 118

46 Bolitho v City & Hackney Health Authority [1998] AC 232

47 Bolitho v City & Hackney Health Authority [1998] AC 232

48 Re T (Adult: Refusal of Medical Treatment) [1992] 4 All ER 649

49 We do not know if his examination would have relied upon Daisy's response to physical stimulus or simply on the supposition that Daisy could have informed him that he was examining the wrong foot, only that due to work demands he was too late to examine her before she was anaesthetised.

50 Vo v France [2004] ECHR 53924/00 'the applicant, who was 6 months pregnant, attended a hospital for an examination. Another woman, who had a similar name, attended on the same day in order to have a coil removed. The doctor confused the two patients, and in an attempt to remove the coil from the applicant, he pierced the amniotic sac and a quantity of amniotic fluid was lost. As a result, the pregnancy was terminated on health grounds.' He did not examine his patient before attempting to remove the coil. even though the action failed as it was statute barred and had not violated Art 2 of the European Convention on Human Rights as claimed,

51 Vo v France [2004] ECHR 53924/00

52 Caparo Industries v Dickman [1990] 2 A.C. 605

53 Cork v Kirby Maclean Ltd [1952] 2 ALL ER 402'can it be said that 'but for' the defendants actions the claimants loss would not have occurred',

54 Barnett v Chelsea & Kensington Hospital Management Committee [1969] 1 QB 428 this case concerned arsenic poisoning, although the Court held that a duty of care was owed, death would have been the result regardless therefore the doctor was not liable.

55 Chester v Ashfar [2005] 1 AC 134 the Court decided that the claimant could not satisfy the normal 'but for' test since she may have agreed to the procedure at another time, but the court said that to be able to give practical force to a doctors duty to inform a patient of risk it should treat the injury as though the defendants breach had caused it.

56 Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co. (The Wagon Mound No. 1) [1961] AC 388 when oil leaked into Sidney harbour from its tanker it floated on top of the water to the claimants wharf where welding was taking place. The oil caused damage to the wharf and also sparks ignited causing fire damage to ships. The trail judge held that it was reasonable to foresee that the fouling of the wharf would take place therefore the defendants were also liable for the fire damage resulting from the breach of duty in allowing the spillage. The Privy Council reversed its decision on the damages for the fire damage saying it was too remote a consequence of the breach of duty.

57 Tremain v Pike [1969] 3 All ER 1303 where the claimant contracted Weil's disease through exposure to rats urine on his employers farm which was infested. The court acknowledged that due to the infestation there was a risk but said that the disease was too rare to be foreseeable.

58 Hughes v The Lord Advocate [1963] AC 837 a manhole was left uncovered but surrounded by lamps. In the night a boy dropped one of them down the whole causing an explosion and burning him. The Court held that how it occurred was quite remote the general risk of that kind of damage was foreseeable.

59 In Smith v Leech Brain & Co Ltd [1962] 2 QB 405 107 the claimant had a pre-cancerous condition which was triggered by being burnt on the lip due to the defendants negligence and therefore the defendant was held liable for the full damage.

60 Cassidy v Ministry of Health [1951] 2 K.B. 343 Per Denning, L.J. 'The hospital authority is liable for the negligence of professional men employed by the authority under contracts for services as well as under contracts of service. The authority owes a duty to give proper treatment - medical, surgical, nursing and the like - and though it may delegate the performance of that duty to those who are not its servants, it remains liable if that duty be improperly or inadequately performed by its delegates. The plaintiff entered a hospital for an operation on his left hand, which necessitated post-operational treatment. While undergoing that treatment he was under the care of the surgeon who performed the operation, who was a whole-time assistant medical officer of the hospital, the house surgeon and members of the nursing staff of the hospital, all of whom were employed under contracts of service. At the end of the treatment it was found that his hand had been rendered useless. The trial judge dismissed his action for damages for negligent treatment which he brought against the hospital on the ground that he had failed to prove any negligence. On appeal:- Held, that, in the circumstances, the doctrine of res ipsa loquitur applied, and the onus lay on the hospital authority to prove that there had been no negligence on its part or on the part'

61 J. Steele, Tort Law Text, Cases, And Materials, (Oxford University Press, Oxford, 2nd edn, 2010) pg 140

62 Scot v The London and Saint Katherine Docks Company [1865] 3 H & C 596 in this case bags of sugar that were being loaded by a crane fell and injured the claimant.

63 K. Williams, 'Res ipsa loquitur still speaks' (2009) 125 Law Quarterly Review, pgs 567-570 at pg 569

64 J. Steele, Tort Law Text, Cases, And Materials, (Oxford University Press, Oxford, 2nd edn, 2010) pg 141

65 Cassidy v Ministry of Health [1951] 2 K.B. 343

66 Fairchild v Glenhaven Funeral Services [2002] UKHL 22 101 102

67 C. Elliott & F. Quinn, Tort Law, (Pearson Education Ltd, Essex, 5th edn, 2005) pg 103

68 Voluntary assumption of risk.

69 P. Giliker and S. Beckwith, Tort, (Sweet & Maxwell, London, 3rd edn, 2008) pg 472

70 Smith v Baker [1891] AC 325 rocks fell on a worker from a crane. The worker had complained of the danger but continued to work which the defendant claimed had shown that the claimant had accepted the risk. The Court held that he may have consented to general danger but not that specific one.

71 J. Steele, Tort Law Text, Cases, And Materials, (Oxford University Press, Oxford, 2nd edn, 2010) pg 277

72 Froom v Butcher [1976] QB 286 in this case the claimant was injured in a car accident, although he was not driving he was not wearing a seatbelt. The Court reduced his damages by 20% because under an objective standard of care they said he had worsened his injuries.

73 Hedley Byrne v Heller [1964] AC 465

74 C. Elliott & F. Quinn, Tort Law, (Pearson Education Ltd, Essex, 5th edn, 2005) pg 25

75 Ibid 27

76 K. Barker, 'Unreliable Assumptions in the Modern Law of Negligence', (1993) 109 Law Review Quarterly, 464

77 Hedley Byrne v Heller [1964] AC 465

78 Bourhill v Young [1943] AC 92 pregnant woman getting off a bus heard an accident, came on scene of accident but the body had been removed but blood on the road, she had miscarriage as result. This case sets the criteria for bystanders in that if they not within the danger zone and do not have sufficient relationship with the party involved then they are not foreseeable victims.

79 An example of a secondary victim would be found in, North Glamorgan NHS Trust v Walters [2002] EWCA Civ 1792 doctors failed to diagnose that a baby needed a liver transplant and assured mother that her baby would be fine. Baby had fit and suffered brain damage, life support was switched off and baby died in mothers arms, whole episode lasted 36 hours. Claim successful then it was appealed on the grounds that cause of grief was not from one single shocking event, rejected on the grounds that the whole period of 36 hours constituted a single event. Distinguished from Alcock v Chief Constable of North Yorkshire [1992] 4 All ER 907 in so much as in that case it was a slow realisation of a shocking event.

80 Page v Smith [1996] 3 All ER 272

81 Simmons v British Steel plc [2004] UKHL 20

82 C. Elliott & F. Quinn, Tort Law, (Pearson Education Ltd, Essex, 5th edn, 2005) pg 40

83 Simmons v British Steel plc [2004] UKHL 20

84 Hillyer v Governor of St Bartholomews Hospital [1909] 2 KB 820

85 Cassidy v Ministry of Health [1951] 2 K.B. 343

86 Century Insurance Co Ltd v Northern Ireland Transport Board [1942] AC 509 a petrol tanker driver threw a lighted match whilst delivering petrol causing an explosion, he was conducting his normal employment duties but because he was doing his work negligently his employer was held to be liable.

87 Cassidy v Ministry of Health [1951] 2 K.B. 343

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