In order to answer this question one must first assess and consider the law relating to negligence, the concepts of vicarious liability and negligent misstatements, the recoverable assists in terms of the lost economics, and any possible defences that could be raised to mitigate negligence. This will require particular advice given to Angus, Dr Wilberforce, and the hospital.
According to the scenario Angus, who is a ‘big, burly fireman’, has kicked Steven above his pelvis causing injury. For an defendant’s liability in negligence to exist, the claimant must show that the defendant either did, or omitted to do, something, that led to him suffering a harm. As such three components exist which need to be substantiated before a claim for negligence can be successful. This consists of, firstly, the defendant owed a duty of care to the claimant; secondly, this duty of care was breached; and finally as a direct result, the claimant suffered damage as a foreseeable, and not too much a remote, consequence. Therefore, the first requirement is to prove that Angus owed Steven a duty of care. This is a notion that is based purely upon both a factual and legal understanding. According to the case of Donoghue v Stevenson, a duty of care is owed by one person to his neighbour. Thus, Angus should have directed his mind to the possible risk of injury when kicking Steven. The second test that needs to be substantiated is found in the case of Caparo Industries plc v Dickman. This case stated that, in addition to the ‘Neighbour principal’, a duty of care would be imposed upon a defendant if sufficient proximity existed between the parties involved in the action, and that there was sufficient foreseeability to impose a duty, and that it is fair, just and reasonable for a duty of care to be imposed. It is clear from the scenario that both Steven and Angus are proximate to one another due to how they are situated. Further, it would appear from the scenario that it is foreseeable for a duty to be imposed due to the relationship between Steven and Angus. Thus, as a consequence it would be fair, just and reasonable for a duty of care to be imposed.
The second requirement that is needed for negligence to be proved is that the owed duty of care has been breached. In order to substantiate whether a duty of care has been breached, a standard of care is required. This is an objective standard based upon the concept of a reasonable man. It is arguable that as Angus is a person in the emergency services he would have a higher standard of care. However, as the accident has occurred outside his sphere of work, the standard of care that is required is that of a reasonable amateur footballer. Thus, the rules of the game dictate that serious foul play, such as kicking an opponent, is not allowed. Equally, the words that Angus used after directing the kick at Steven show an intention to cause harm. According to the scenario these words were ‘That teaches these spoilt overpaid footballers not to mess with the real men’. As such the duty of care owed by Angus to Steven has been breached.
The third and final requirement that is needed to prove negligence is that the defendant caused damage to the claimant in a direct manner. The law uses a double staged test to prove the damage caused is direct and not too remote from the fact. These are known as causation as a matter of fact and causation as a matter of law. According to Lord Denning, the claimant, Steven, must show that had it not been for Angus’ actions he would not have suffered the injury to his pelvis. It is clear from the scenario that had Angus not kicked Steven he would not have suffered the injury sustained. However, it is worth stating that Angus may well advance the argument that Steven has a weakness in his back that has been evident since childhood. This could indicate that Steven’s back would be injured in any event. However, as stated in the scenario, Steven is a professional footballer and must be that nature have insurance to cover such injuries and is an accomplished athlete. Equally, the principle of the ‘Thin Skull’ rule needs to be explored. This is also known as ‘take your victim as you find them’. This is a legal principle that requires a defendant to accept the complications that his victim may have. Thus, Angus would have to accept that Steven has a weakness in his back that could cause further injury from any sort of contact. However, the kick that Steven has received is likely to cause the injury sustained irrespective of the weakness in his back. The second test is whether the injury to the claimant was a reasonably foreseeable result of the defendant’s actions and that no intervening act has occurred between the defendant’s actions and the claimant’s injury. Again, it is arguable that due to Steven’s weak back the specific injury received was unlikely. However, the legal principle of the ‘Thin skull’ rule would indicate that the injury sustained to Steven was both likely and foreseeable. It is therefore clear that Angus is responsible for the personal injury that Steven has sustained.
The second individual that needs advising is that of Dr Wilberforce. According to the scenario, Steven was immediately taken to the Accident and Emergency unit of a local hospital and was seen by Dr Wilberforce, who is a leading back specialist. After a quick consultation, Dr Wilberforce states that the only way of correcting the so-called fatal injury is to have immediate surgery. As outlined above, Steven will need to prove that Dr Wilberforce owed him a duty of care. It is clear from the authorities outlined above, a duty of care is owed when sufficient proximity is created, that it is foreseeable in the circumstances, and that is fair, just and reasonable to impose the duty of care. It is clear from past circumstances that it is a recognised situation that a doctor owes a duty of care to his patient. Thus, Dr Wilberforce owes Steven a duty a care. As outlined above, the second requirement that is needed is that the owed duty of care has been breached. The standard of care that is required in this situation is much higher than the one identified above, due to Dr Wilberforce’s qualifications and job. According to the case of Bolam v Friern Hospital Management Committee, a doctor owes a higher duty of care than an ordinary member of the public due to their qualifications. Thus, Dr Wilberforce will be judged by the standards of a reasonable competent doctor, placed in exactly the same situation, rather than what he could have done given the circumstances. It is clear from this stance that Dr Wilberforce will be required to show that he acted as any reasonable doctor would have done in the same situation. It is arguable that specialist doctors will concur with one another’s beliefs because they will have gone from the same basic training and the same ‘on the job’ training. It is conclusive from this point, and the lack of evidence from the scenario, that Dr Wilberforce is not liable for negligent treatment of Steven in the corrective operation. However, if evidence can be adduced that Dr Wilberforce has acted in a negligent manner, than the chain of causation will link the injuries sustained to Steven by the actions of Dr Wilberforce. Equally, Dr Wilberforce’s conduct of persuading Steven to sign the consent form when he was ‘semi-conscious at the time and barely able to speak’, may show a propensity for negligent actions.
The third and final individual that requires advice is the hospital that employs Dr Wilberforce. This is a tort known as vicarious liability. This is where an employer is held responsible for the acts of his employee. The requirements of vicarious liability are that the claimant has suffered loss or injury caused by the employee; secondly, there is a relationship in existence between the employer and employee; and finally, the employee was acting in the course of his employment. It is clear from the scenario that Steven has suffered loss and injury, however evidence is lacking that the injuries sustained were caused by Dr Wilberforce’s actions. However, it is worth noting that if evidence can be adduced that shows his failings, then the existence of a contract of employment needs to be shown. The latest test that is used in the Tribunals is that of the ‘multiple test’. This lays down a three staged test for an individual to be classed as an employee. These conditions are that work is undertaken for the consideration of remuneration to provide his own work and skill; secondly, that the ‘master’ has a sufficient degree of control over the other person; and finally that the other provisions are consistent with a contract of service being in operation. It is assumed from the relationship that exists that Dr Wilberforce is employed in return for a wage at the end of each month, this is given to him in return for his specialist knowledge. It is further assumed that Dr Wilberforce will be required to conform to hospital policy, and thus the hospital board will have sufficient control over Dr Wilberforce to indicate a contract of employment. The final requirement could be shown by the fact that Dr Wilberforce will, presumably, have security cards and access codes to certain wards in the hospital. Thus, Dr Wilberforce is an employee of the hospital. The final requirement is that Dr Wilberforce has acted in the course of his employment. This is where the employee does something that is either authorisedby his employer, incidental to his job, or doing something authorised in an unauthorised manner. Dr Wilberforce is clearly authorised to perform operations by his employer, however, evidence will need to be adduced to show that Dr Wilberforce has acted in a negligent fashion for the hospital to be liable.
The fourth element that needs consideration is the legal principles surrounding the idea of negligent misstatements. This is where liability is drawn from the statements of an individual in a position to advise. Previously, no liability could be found unless the misstatement was dishonest in nature. Further, the only recognised classes of liability could be where a contractual duty was in operation to take care, or a fiduciary relationship existed between the parties. However, this position has know changed. According to the case of Hedley Byrne v Heller, liability for negligent misstatements may exist where a duty of care is owed where a the statement has been reasonably relied upon, the reliance has resulted in harm to the claimant, this harm is foreseeable, and that a special relationship existed between the parties. Usually this harm is of an economic manner, however, Dr Wilberforce’s statement that ‘No one has ever been left crippled under my care’, may amount to a negligent statement if it is untrue or his conduct amounts to negligence. It is clear from the scenario that Steven only signed the consent form due to Dr Wilberforce’s statement, and that he was totally reliant upon Dr Wilberforce’s specialist knowledge.
The final consideration that requires analysis is the loss of work suffered by Steven. According to the scenario, Steven has lost out on a professional football career, and a lucrative advertising promotion for razor blade and aftershave. This is a loss that is based purely on economics and is not consequent on physical injury or damage to one’s property. The general imposition for this type of loss is that it is not recoverable. However, this static position is subject to exceptions. These consist of where a special relationship exists between the parties, and/or proximity exists between the parties. However, it is arguable that the loss suffered to Steven is based upon his injuries and therefore should fall inside the sphere of recoverable losses. The general compensatory principle in the law of tort is to place a claimant in the position he would have been in had the tort never have happened, thus had it not been for the negligent actions of Angus, and possibly Dr Wilberforce, Steven would still be in a position to earn this money. Conventionally, these types of losses are known as damages for pecuniary losses and damages for non-pecuniary losses. Thus, Steven will be able to recover loss of earnings, expenses for medical treatment and adapting his home, and the lost years of being a professional footballer. Steven will also be able to claim loss of amenities, the pain and suffering involved from the injury itself, collateral benefits, and interest accrued upon these. However, it is worth noting that if the hospital nor Dr Wilberforce are found to have breached their duties, then Angus is going to be the only person liable for Steven’s injury, and is arguably not going to be in a position to afford the damages that a professional footballer will be awarded.
In conclusion, Angus is directly responsible for the injury sustained to Steven. His actions are totally negligent. In terms of Dr Wilberforce, further evidence will need to be adduced to show that he acted in a negligent manner. If this can be shown then Dr Wilberforce will be negligent. Equally, if Dr Wilberforce is liable, then the hospital will also be liable for vicarious liability. In terms of the statement made by Dr Wilberforce, Steven maybe able to show that he acted under total reliance. Finally, the loss suffered by Steven will be recoverable.
- Law of Tort, 5th Edition by John Cooke, published by Pearson Education Ltd in 2001.
- Cases and Materials on the European Convention on Human Rights, 1st Edition by Alastair Mowbray, published by Butterworths in 2001.
- Street on Torts, 11th Edition by John Murphy, published by LexisNexis Butterworths in 2003.
- Constitutional & Administrative Law, 4th Edition by Hilaire Barnett, published by Cavendish Publishing Ltd in 2002.
- Tort Law Text and Materials, 2nd Edition by Mark Lunney and Ken Oliphant, published by Oxford University Press in 2003.
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