What must be established to prove a ‘breach of duty of care’?

What
factors must be established in order to successfully prove a ‘breach of duty of
care’ in Tort Law?

Tort law is civil law and are legal wrong doings that have been brought to court by the plaintiff against the defendant. Civil law’s purpose is not to punish people but to compensate them for the wrong doing of the defendant. Whereas criminal law’s purpose is to punish the defendant for the crimes committed. The breach of duty of care comes under the tort of negligence. The tort of negligence came about due to some type of loss or damage that has occurred because of the wrong doing caused by the defendant. In tort law there is no contract, so the plaintiff cannot sue the defendant. Before the defendant is found liable for the wrong doings there are three things that need to be established and these are that duty was owed, duty was breached and that the breach caused the loss or damage (causation).

This essay will explore the factors that must be established when proving a breach of duty of care in tort law, looking at different healthcare and non- healthcare cases.

Tort
law was founded by the Norman French law and was introduced at the time of the
Norman conquest in 1066. The reason it was brought in was to be able to settle
cases where there is no contract between the two parties and also to protect
individuals from negligence of others. There are five things that make up a
contract for it to exist. These are Offer, Acceptance, Payment; of some sort,
Consideration, intention and capacity. If one of these things are missing, then
no contract can be established, and it then comes under tort law. The law says
that you must avoid acts which you can reasonably see would cause harm to
others.

In
Healthcare the tort of negligence is important because there is no contract in
place and there have been incidents where individuals have come to harm. This
would be slightly different for private healthcare services as there is payment
and consideration involved whereas in nation healthcare there isn’t. In order
for negligence in healthcare to be established three things have to be present
which are; that the duty Is owed to the plaintiff, the defendant breached that
duty and that the harm caused was directly because of the breach of that duty
owed. Duty owed, and duty breach must be present for a case to go through, but
the harm/causation is judged on the balance of probabilities. So, whether or
not the harm was caused by the breach or If there are other factors that could
have contributed or caused the harm itself.

One
of the most utilized cases in tort law is the case of Donoghue v Stevenson
(1932) where the precedent was set on the neighbours’ law. In this case Mrs.
Donoghue was bought a bottle of ginger beer in a café by a friend and upon
drinking the content, she realised
there was a decomposing snail inside. As a result of this
she suffered nervous shock and gastro-enteritis. The problem this case had was
that Mrs. Donoghue did not purchase the ginger beer and therefore held no
contract with the café owner; Stevenson. The friend who purchased the drink
didn’t suffer any harm so, neither of them could sue the café through contract
law (Martin 1999, p77).  The only
possible way for a case to go through would be through the tort of negligence.
The lower courts found in difficult to establish whether Stevenson could be
classed as neighbour as he was miles away.  An appeal to the house of lords, then decided
that one party should be able to sue another who caused them loss or damage
even if there is no contract but, then went on to develop this by creating a
new principle which states that ‘everyone has a duty of care to their neighbour’. The judge had to clarify who a neighbour was and the
proximity between the neighbours’ for them to establish if duty was owed to
Donoghue. In the house of lords two critical principles were added. These are
that; A manufacturer owes a duty of care to the consumer of their product and
also that you shouldn’t injure your neighbour. Your neighbour is anyone who is
closely or directly affected by the individual’s actions. Lord Atkin, stated
that “…you must take reasonable care to avoid acts of omissions which you can
reasonably foresee would be likely to injure your neighbour.” (Johnson 1995,
pp20/21). Lord Atkin, decided that there did not need to be directly close to
be classed as neighbour but have some form of contact between them. So, the
courts came to the final conclusion that duty was definitely owed by Stevenson.
Another non-health care case which develops the idea on proximity when
establishing if duty was owed is the case of Bournhill v Young (1943)

 In the case of Bourhill v Young, Young was riding motorcycle very carelessly, which caused an accident and resulted in his death. At the time Mrs bourhill was pregnant and saw the aftermath of the accident which she said made her feel sick. She later went on to have a stillborn pregnancy and claimed it was a result of witnessing the accident. The lawyer tried to argue that Young owed her a duty of care with his careless riding but, the courts eventually decided that there was ‘insufficient proximity’ between them, so they came to the conclusion that Mr.Young did not owe Mrs. Bourhill a duty of care but owed a duty to other road users. If the courts finals decision was that duty was owed it would still be difficult to prove a breach and impossible to prove causation. This is because there are many factors that can add to the stillborn to a baby and on the balance of probabilities it would not have been easy to weigh up the different causes.

In
the National Health Service (NHS) across the United Kingdom tort is very
important because there is no contract between healthcare professionals and
their patients. If a case of negligence was to be brought against a healthcare
professional, the NHS will take vicarious liability for their employees as they
are liable for their actions. This is unless there is clear evidence that they
did not conduct themselves in a way that was reasonable and within their job
description. An example of this is shown in the case of Bolam v Friern
Management Committee (1957), which is a case between a doctor and his patient.

The
Bolam v Friern Management Committee (1957) is a major case that is still used
till this day when looking at negligence cases. Bolam; a psychiatric patient
sued his doctor for negligence due to him not being informed of the outcome of
the electro-convulsive therapy (ECT) that he was about to undertake. As a
result, he suffered a broken pelvis after falling off the bed during treatment
because of a seizure. The doctor did strap Bolam to the bed nor give him any
drugs during the treatment which to Bolam deemed to be necessary. The judge asked
other skilled professionals if they would have done any different and they
claimed it to be common practice at the time. So, the judge decided that the
doctor acted in the best interest of the psychiatric patient, as telling him
the risk could have caused distress to the patient. He also stated that “a
medical professional would only be judged negligent if their behavior fell
below that of ordinary professional’’. This statement by the judge is what led
this case to judge made law as a precedent was then set when looking at the
practice of medical professionals. This is now called the ‘Bolam Test’. Another
case which modified the Bolam test slightly is the case of Maynard v West
Midlands RHA (1984)

The
Maynard v West Midlands RHA (1984) helped the development of establishing the
breach of duty. Maynard’s doctor decided to run a set of tests for Hodgkin’s
disease what was seemed potentially lethal at that time. He done the tests
because he did not want to risk waiting for the earlier tests results of
Tuberculosis (TB). The test for Hodgkin’s disease had a risk of damage to the
laryngeal nerves. Maynard sued the doctor claiming that the tests were not
needed and caused him to have damage to his laryngeal nerves, with both tests
results coming back negative. The lower courts were in favor of Maynard, but
this decision was over turned with the appeal to the House of lord. The Bolam
test was used but this time there was two sets of skilled professionals with
different views, some were for Maynard and some against. The judge could not
say which group was right or wrong as he is not a skilled professional but as
one group agreed they would have completed the test, Maynard lost the case as
no breach could be proved.

Sidaway
v Bethlem Royal Hospital (1985) Sidaway undertook an operation that he later
claimed negligence against the doctor on the grounds that he was not informed
of the outcome of developing paraplegia. This is a condition that she then
suffered from after her spinal operation. During court the judge said that as
long as the possible outcome is less than 1% then the doctor or other
healthcare professionals cannot be liable for a breach of duty because of the
percentage of the risk to that patient. This added to the Bolam test and is
known as the 1% test. The judge also stated In healthcare settings duty is
always owed to the patient.  

A
negligence case cannot be successful on the breach of duty of care alone. For
the case to be 100% successful the breach has to be a direct cause of the
damage, loss or injury of the plaintiff. In some situations, Res Ipsa Liquitor
applies when sometimes needing to establish negligence. It means that ‘the
thing speaks for itself’ so the damage, loss or injury is clearly and obviously
a result of the breach of duty. A case that is a good example of Res Ipsa
Liquitor is the case of Cassidy v Ministry of Health (1951)

Cassidy
v Ministry of Health (1951) Cassidy undertook an operation for two stiff
fingers but when he came out of surgery he was worse off than he was before. He
then sued the doctor for negligence as the doctor could not explain the reason
why he ended up worse off. In this case where Res Ipsa Liquitor claimed and
injury sustained wouldn’t occur expect through negligence. The ministry of
Health was found guilty, this was based on the balance of probabilities.

Bolitho
v City of Hackney Authority (1984) Bolitho was a two-year-old who went under
surgery to unblock his arteries, after some time he was back in hospital with
breathing difficulties as his condition got worse. His doctor who was summoned
twice failed to show up and overlook the child. Bolitho died later that day and
his parents sued the Health Authority for negligence.  As it is healthcare duty is always owed and
because the doctor failed to attend to the child, he breached his duty of care.
The doctors defense in court was that if he was to attend to the child, he
still would not have intubated him because of his age and previous condition
which would have led to the child still dying. The judge them applied the Bolam
test and other health professionals, some said they would, some said they would
have not intubated the child. A precedent was set by the house of lords on
appeal that stated that any evidence given by a doctor had to be responsible,
reasonable and respectable. The judge was in favor of the defendant as they
nonattendance of the doctor did not contribute to the death of the child.

The
Wilsher v Essex (1998) This case was about a premature baby that was blinded in
his incubator because of oxygen oversaturation by his doctor. At the lower
courts the case was found in favor of Wilsher (baby) but at the house of lords
for appeal it was said to be argued that on the balance of probabilities there
were four other alternatives which would explain the blindness.

In
the case of Carver v Hammersmith and Queen Charlotte’s Special HA (2000) The
doctors had failed to warn a mother that the down’s syndrome test has a one in
three failure rates. The test result was negative but the result of her child
after birth was that he was born with down’s syndrome. The judge was in favor
of carver, using the ‘reasonable, responsible, respectable’ approach, the judge
said that the defendant Cleary breached his duty and did not act in a way that
was reasonable for a doctor.

It
can see Tort law’s purpose is to compensate those who suffer loss, damage or
injury due to the negligence of another. It looks to deal with wrong doings
within healthcare settings where there is no contract. In many case studies
that have been discussed, it is seen that to prove a breach of duty of care,
duty owed must be established. For a breach of duty to be 100% successful in a
case, the breach must be a direct cause on the balance of probabilities for the
damage, loss or injury sustained by the plaintiff.  

BIBLOGRAPHY

De
Cruz, P. (2005): Nutshells: Medical Law London: Sweet and Maxwell

Johnson,
J. & Cooper, S. (1995): A. Level Law. Blackstones: London

Martin,
J.& Gibbins, M. (1999): A-Z of Law. Hodder: London

Brendan
Greene, (2015): Course Note Tort Law: hodder

Unknown:  http://www.accaglobal (17 Feb 2016): The Tort of
Negligence :  London