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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.
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
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