DOCSLIB.ORG

Clinical Negligence Update

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Clinical Negligence Update f Clinical Negligence Update Nigel Poole QC 1. Judgecraft 1.1. Not a “details man”. 1.1.1. Barnett v Medway NHS Foundation Trust [2017] EWCA Civ 235 [Case 21]. 1.1.2. Difficult expert evidence was considered but not resolved by the trial judge who ultimately decided the case for the defendant on the burden of proof – the claimant had failed to prove his case to the requisite standard because the court could not resolve a key factual issue. 1.1.3. The Court of Appeal considered Stephens v Cannon [2005] EWCA Civ 222 and Verlander v Devon Waste Management [2007] EWCA Civ 835 in which Auld LJ held: When this court in Stephens v Cannon used the word "exceptional" as a seeming qualification for resort by a tribunal to the burden of proof, it meant no more than that such resort is only necessary where on the available evidence, conflicting and/or uncertain and/or falling short of proof, there is nothing left but to conclude that the claimant has not proved his case. The burden of proof remains part of our law and practice -- and a respectable and useful part at that - - where a tribunal cannot on the state of the evidence before it rationally decide one way or the other. In this case the Recorder has shown, in my view, in his general observations on the unsatisfactory nature of the important parts of the evidence on each side going to the central issue, particularly that of Mr Verlander, that he had considered carefully whether there was evidence on which he could rationally decide one way or the other." 1.1.4. In Barnett the Court of Appeal was clearly concerned about the “remarkably succinct judgment”: “The Appellant submits, in support of these Grounds, not only that the judge reached "impermissible" or erroneous conclusions, but that the judgment contains no sufficient analysis of the case, and thus the Appellant is left in doubt as to the judge's reasoning. With respect to the Judge, there appears to me to be CLINICAL NEGLIGENCE UPDATE | Nigel Poole QC force in the latter complaint. There is great virtue in writing judgments concisely. However, the parties do need to know sufficiently what led to the conclusions reached. In this instance, the judgment gave only the briefest explanation. The obligation is all the clearer in a case of such complexity, and in a case where a key issue is decided on the basis that a claimant has failed to discharge the burden of proof, as the passage from paragraph 46 of Stephens v Cannon quoted above makes clear. The learned judge is to be commended for his brevity, but on this aspect of the case at least, it went too far. Irwin LJ at [54]. 1.1.5. However, the Court of Appeal held that this was an exceptional case in which the judge was justified in his inability to resolve an issue of fact and therefore to determine the case on the burden of proof. 1.2. “I know all about that” 1.2.1. Willmott v Rotherham NHS Foundation Trust [2017] EWCA Civ 181 [Case 19] 1.2.2. Knee replacement operation. The trial Judge had had a knee operation and informed the parties that he had gained a great deal of knowledge through that experience. After several judicial interventions the claimant’s counsel asked the Judge to recuse himself which he refused to do. The Court of Appeal agreed that the Judge had not been required to recuse himself but commented: “I should say that I think it was unwise for the judge to refer so extensively to his own experience of knee treatment and to his background reading on the subject. This gave rise to a concern that the judge might not be confining his approach to the evidence adduced before him. The concern was in fact unjustified, but it fuelled the application for recusal and has fuelled this appeal.” CLINICAL NEGLIGENCE UPDATE | Nigel Poole QC 2. The Standard of Care “I predict that over the coming years there will be continuous onslaught on Bolam. The argument will be that the ordinary principles of tortious liability should apply to the professions in the same way that they apply to everybody else. There is no reason for the courts to accord special protection to the professions. Whether any of those attacks will succeed I do not know and it would be wrong for me, as a judge, to predict. I merely state where I foresee the next battles being fought.” Lord Justice Jackson, 2015 2.1. Assessing Conflicting Expert Evidence 2.1.1. In Lane v Worcestershire Acute Hospitals NHS Trust [2017] EWHC 1900 (QB) Edward Pepperall QC reviewed the authorities on the approach to the standard of care where there are conflicting expert opinions. He relied upon Green J in C v North Cumbria University Hospital NHS Trust [2014] EWHC 61 at [25]: "(vi) Responsible/competent/respectable: In Bolitho Lord Browne-Wilkinson cited each of these three adjectives as relevant to the exercise of assessment of an expert opinion. The judge appeared to treat these as relevant to whether the opinion was 'logical'. It seems to me that whilst they may be relevant to whether an opinion is 'logical' they may not be determinative of that issue. A highly responsible and competent expert of the highest degree of respectability may, nonetheless, proffer a conclusion that a court does not accept, ultimately, as 'logical'. Nonetheless these are material considerations … CLINICAL NEGLIGENCE UPDATE | Nigel Poole QC "vii) Logic/reasonableness: By far and away the most important consideration is the logic of the expert opinion tendered. A judge should not simply accept an expert opinion; it should be tested both against the other evidence tendered during the course of a trial, and, against its internal consistency." Green J’s formulations have been relied upon on more than one occasion by other High Court Judges. However, Edward Pepperall QC also warned himself that: “Bolitho is not a licence for a judge to prefer one expert's logical opinion over another. The question is not whether Mrs Lane could have received a better standard of care or whether, with hindsight, things could have been done better, but whether the treatment given by these doctors is or is not supported by a responsible body of medical opinion that withstands logical analysis.” The court scrutinizes an expert’s opinion for its logic, but if the defendant’s conduct accords with a responsible body of medical opinion that withstands logical, that is the end of the matter. It is not for the court to go on to decide whether it prefers the approach of the claimant’s expert. 2.2. The Particular Task 2.2.1. Most obviously, as confirmed in Montgomery v Lanarkshire, the task of giving advice and obtaining consent is no longer judged by the Courts using the Bolam test. Thefaut v Johnston [2017] EWHC 497 (QB) [Case 17] provides a striking example of the impact of Montgomery: a very experienced surgeon accepted that the advice he had given about proposed spinal surgery had been overly optimistic and sub-standard and that, post Montgomery, he had changed the pre-operative advice he gives to patients. 2.2.2. But are there other clinical activities for which the Bolam test is not appropriate? CLINICAL NEGLIGENCE UPDATE | Nigel Poole QC 2.2.3. Muller v King's College Hospital NHS Foundation Trust [2017] EWHC 128 (QB). [Case 13].This was a claim for delay in diagnosing cancer where the histopathologist had misreported a malignant melanoma as non- malignant ulcer. Kerr J considered what was the correct test to apply when determining whether such mis-reporting had been negligent. In an important passage beginning at [46] he said: “Mr Kellar, for Mr Muller, submitted that the application of the Bolam principle did not provide the answer here. He proposed that the governing authority was the Court of Appeal's decision in Penney v East Kent Health Authority [2000] PNLR 323, in which Lord Woolf MR gave the judgment of the court. That case, he pointed out, was like this one a case of interpreting objective data wrongly. “He submitted that Penney showed that the court must determine the objective facts about what pathological features were there to be seen on the slides - which in the present case is a matter of agreement - and then decide for itself whether, in the light of the differing experts' views, the misdiagnosis was one that must have been made without the use of reasonable skill and care. The court could not abdicate its responsibility to resolve the conflict of expert opinion by resorting to the Bolam-derived notion of a respectable body of medical opinion. “One might have thought the principles would be settled by now. In my judgment, the difficulty has arisen because, unfortunately, the authorities applying the conventional Bolam approach to negligence in this field do not sufficiently differentiate between two types of case. “The first type is a case such as the present, where the patient's condition is unknown, and what is alleged to be negligent is a doctor's diagnosis of the condition, in the form of a report, with no decision made or advice given about treatment or further diagnostic procedures. The diagnosis is either right or wrong and, if wrong, either negligently so or not. Such a case could be called a "pure diagnosis" case. “At the other end of the spectrum is the second type of case: a "pure treatment" case, where the nature of the patient's condition is known, and the alleged negligence consists in a decision to treat (or advise treatment of) a condition in a particular manner.
Load more

Recommended publications
  • An Update on Breach of Duty of Care at Common Law in the Post-Enterprise Act Era
    A fine line between genius and insanity An update on breach of duty of care at common law in the post-Enterprise Act era Steve Laing, Advocate & Gavin Thornley, Advocate 1. Breach of duty of care prior to treatment in medical negligence cases Darnley v Croydon Health Services NHS Trust 2017 EWCA Civ 151 • Claimant suffered a head injury • Attended A&E Department - busy night • Receptionist told him he’d be seen in 4-5 hours (average waiting time for treatment) • Should have told him that triage nurse would see him within 30 minutes Darnley v Croydon Health Services NHS Trust 2017 EWCA Civ 151 Left hospital after 19 minutes without treatment and without telling any member of staff Darnley v Croydon Health Services NHS Trust 2017 EWCA Civ 151 • Had he realised that he would be seen by a triage nurse, he would have stayed • Condition deteriorated at home • Suffered a left hemiplegia, with long term problems • Would have been prevented had he received prompt treatment Darnley v Croydon Health Services NHS Trust 2017 EWCA Civ 151 • Left after 19 minutes • Clinical guidelines - head injury patient should be assessed by a clinician within 15 minutes of arrival • Experts accepted that 30 minutes would also be appropriate on busy night • Court of Appeal held that no breach of duty of care by failure to examine him within 15 or 19 minutes on a busy night in A&E when his presentation on arrival didn’t merit priority triage Darnley v Croydon Health Services NHS Trust 2017 EWCA Civ 151 Advanced a case - breach of duty as failure of A&E receptionist
    [Show full text]
  • Principles of Tort Law, Fourth Edition
    PRINCIPLES OF TORT LAW Fourth Edition CP Cavendish Publishing Limited London • Sydney EDITORIAL ADVISORY BOARD PRINCIPLES OF LAW SERIES PROFESSOR PAUL DOBSON Visiting Professor at Anglia Polytechnic University PROFESSOR NIGEL GRAVELLS Professor of English Law, Nottingham University PROFESSOR PHILLIP KENNY Professor and Head of the Law School, Northumbria University PROFESSOR RICHARD KIDNER Professor at the Law Department, University of Wales, Aberystwyth In order to ensure that the material presented by each title maintains the necessary balance between thoroughness in content and accessibility in arrangement, each title in the series has been read and approved by an independent specialist under the aegis of the Editorial Board. The Editorial Board oversees the development of the series as a whole, ensuring a conformity in all these vital aspects. PRINCIPLES OF TORT LAW Fourth Edition Vivienne Harpwood, LLB, Barrister Reader in Law, Cardiff Law School CCPP Cavendish PublishingCavendish PublishingLimited Limited London • Sydney Fourth edition first published in Great Britain 2000 by Cavendish Publishing Limited, The Glass House, Wharton Street, London WC1X 9PX, United Kingdom. Telephone: +44 (0)20 7278 8000 Facsimile: +44 (0)20 7278 8080 Email: [email protected] Website: http://www.cavendishpublishing.com © Harpwood, V2000 First edition 1993 Second edition 1996 Third edition 1997 Fourth edition 2000 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherwise, except under the terms of the Copyright Designs and Patents Act 1988 or under the terms of a licence issued by the Copyright Licensing Agency, 90 Tottenham Court Road, London W1P 9HE, UK, without the permission in writing of the publisher.
    [Show full text]
  • Darnley V Croydon Health Services NHS Trust [2018] UKSC 50
    This is a repository copy of The Impatient Patient and the Unreceptive Receptionist: Darnley v Croydon Health Services NHS Trust [2018] UKSC 50. White Rose Research Online URL for this paper: http://eprints.whiterose.ac.uk/141880/ Version: Accepted Version Article: Purshouse, C (2018) The Impatient Patient and the Unreceptive Receptionist: Darnley v Croydon Health Services NHS Trust [2018] UKSC 50. Medical Law Review. ISSN 1464- 3790 https://doi.org/10.1093/medlaw/fwy042 © The Author(s) 2018. This is an author produced version of a paper published in Medical Law Review. Uploaded in accordance with the publisher's self-archiving policy. Reuse Items deposited in White Rose Research Online are protected by copyright, with all rights reserved unless indicated otherwise. They may be downloaded and/or printed for private study, or other acts as permitted by national copyright laws. The publisher or other rights holders may allow further reproduction and re-use of the full text version. This is indicated by the licence information on the White Rose Research Online record for the item. Takedown If you consider content in White Rose Research Online to be in breach of UK law, please notify us by emailing [email protected] including the URL of the record and the reason for the withdrawal request. [email protected] https://eprints.whiterose.ac.uk/ THE IMPATIENT PATIENT AND THE UNRECEPTIVE RECEPTIONIST: DARNLEY v CROYDON HEALTH SERVICES NHS TRUST [2018] UKSC 50. Craig Purshouse, School of Law, University of Leeds, Liberty Building, Leeds, LS2 9JT. [email protected] I would like to thank Emma Cave, Sarah Devaney and Rob Heywood for helpful comments on an earlier draft.
    [Show full text]
  • Appellants) V the Chief Constable of South Wales Police and Another (Respondents
    Hilary Term [2015] UKSC 2 On appeal from: [2012] EWCA Civ 981 JUDGMENT Michael and others (FC) (Appellants) v The Chief Constable of South Wales Police and another (Respondents) before Lord Neuberger, President Lady Hale, Deputy President Lord Mance Lord Kerr Lord Reed Lord Toulson Lord Hodge JUDGMENT GIVEN ON 28 January 2015 Heard on 28 and 29 July 2014 Appellants Respondents Nicholas Bowen QC Lord Pannick QC Duncan Fairgrieve Jeremy Johnson QC Jude Bunting (Instructed by Martyn (Instructed by South Prowel Solicitors) Wales and Gwent Police Joint Legal Services) Interveners Interveners (1) Refuge Karon Monaghan QC (2) Liberty Rajeev Thacker (Instructed by Deighton Pierce Glynn Solicitors) Intervener Intervener Cymorth i Ferched Cymru Caoilfhionn Gallagher (Welsh Women’s Aid) Conor McCarthy (Instructed by Hopkin Murray Beskine Solicitors) LORD TOULSON: (with whom Lord Neuberger, Lord Mance, Lord Reed and Lord Hodge agree) Introduction 1. This appeal arises from the tragic murder of Joanna Michael by a former partner, which might have been prevented if the police had responded promptly to a 999 call made by Ms Michael. As I explain below, two police forces were involved, Gwent Police and South Wales Police, and there was a lack of effective liaison between them. 2. The claimants in the action are Ms Michael’s parents and her two young children. The defendants are the Chief Constables of Gwent Police and the South Wales Police. The claim is brought for damages for negligence at common law and under the provisions of the Fatal Accidents Act 1976 and Law Reform Miscellaneous Provisions Act 1934 (which I will refer to as the common law or negligence claim), and for damages under the Human Rights Act 1998 for breach of the defendants’ duties as public authorities to protect Ms Michael’s right to life under article 2 of the European Convention on Human Rights (which I will refer to as the human rights or article 2 claim).
    [Show full text]
  • I: Negligence: Duty of Care
    © A. Barrie Goldstone 2020: page 0 The Barrie Guide to Tort 2020 Volume One Barrie Goldstone Head of the School of Law London Metropolitan University © A. Barrie Goldstone 2020: page 1 CONTENTS PART 1: INTRODUCTION TO TORT 1 DICTIONARY DEFINITION 2 TYPES OF TORT 3 THE FUNCTION OF THE LAW OF TORT 4 TYPES OF TORTIOUS DAMAGES PART 2: THE ELEMENTS OF NEGLIGENCE 5 THE THREE STAGES PART 3: THE DUTY OF CARE IN NEGLIGENCE 6 THE GENESIS OF NEGLIGENCE: Heaven v. Pender 7 THE NEIGHBOUR PRINCIPLE: Donoghue v. Stevenson 8 CONFIRMING THE TEST IN DONOGHUE V. STEVENSON 9 EXTENDING THE DUTY OF CARE: Denning and Co. 10 THE POLICY ELEMENTS: McLoughlin v. O’Brian 11 THE HIGH-WATER MARK: Junior Books v. Veitchi Co. Ltd. 12 THE RETREAT FROM ANNS v. MERTON: Lord Keith and Co. 13 REINTERPRETING ANNS v. MERTON 14 ISOLATING PROXIMITY: Hill v. Chief Constable of West Yorkshire 15 THE TRIPARTITE TEST: Caparo v. Dickman PART 4: THE DRIVE OF PUBLIC POLICY IN DUTY OF CARE 16 THE DRIVE OF POLICY: Practical Solutions 17 ACTS AND OMISSIONS 18 THE EMERGENCY SERVICES: Duty of Care and Omissions 19 THE EMERGENCY SERVICES: Duty of Care and Commissions 20 PUBLIC POLICY AND THE ARMED FORCES 21 PUBLIC POLICY AND LOCAL AUTHORITIES 22 THE EDUCATIONAL NEEDS OF CHILDREN 23 THE PHYSICAL SAFETY OF CHILDREN 24 A DUTY TO ADOPTIVE PARENTS? 25 PUBLIC POLICY AND WRONGFUL BIRTH 26 BARRISTERS’ IMMUNITY © A. Barrie Goldstone 2020: page 2 PART 5: DUTY OF CARE AND HUMAN RIGHTS 27 POLICY, ARTICLE 6 AND STRIKING OUT ACTIONS 28 THE OSMAN CASE 29 THE CHILD ABUSE CASES 30 ARTICLES 2 AND 3: Police
    [Show full text]
  • Final Torts Exam Notes 70311 Gabriella Dunworth 99134951
    FINAL TORTS EXAM NOTES 70311 GABRIELLA DUNWORTH 99134951 Table of Contents DUTY OF CARE ................................................................................................................... 2 Step 1: Establish whether established or non-established DOC ...................................... 2 ESTABLISHED DOC ...................................................................................................................... 3 NOVEL CASE/DOCs ..................................................................................................................... 4 Unforeseeable plaintiffs (where relevant) – NO DOC .................................................................. 8 KEY CASES .................................................................................................................................. 8 CATEGORIES OF DUTIES OF CARE ..................................................................................... 12 Category 1: Atypical plaintiffs ................................................................................................... 12 Vulnerable plaintiffs are not automatically rendered atypical ...................................... 12 Category 2: The Unborn Child ................................................................................................... 13 WRONGFUL BIRTH ....................................................................................................................... 14 WRONGFUL LIFE .........................................................................................................................
    [Show full text]
  • State Liability in South Africa: a Constitutional Remix
    State Liability in South Africa: A Constitutional Remix François du Bois* I. INTRODUCTION ................................................................................. 139 II. THE CONTRAST ILLUSTRATED ......................................................... 141 A. The Cases.......................................................................... 141 B. The Context ...................................................................... 145 III. ENGLAND .......................................................................................... 147 A. The Assimilation of Private and Public Liability ............. 147 B. The Impact of Human Rights Law ................................... 151 IV. SOUTH AFRICA ................................................................................. 158 A. Reception of English Law and the Evolution of the Mixture ............................................................................. 158 B. The Impact of Constitutional Rights ................................ 166 V. CONCLUSION .................................................................................... 172 I. INTRODUCTION No area of South African law has been left unaffected by the post- apartheid constitutional revolution.1 Tort liability, which has long been a crucial mechanism for ensuring that government, its officials and institutions, do not escape responsibility when they violate the rights of individuals, was always likely to be at the vanguard of these changes.2 Over the past fifteen years, South African law has loosened its
    [Show full text]
  • FRONT COVER JD V East Berkshire
    HOUSE OF LORDS SESSION 2004–05 [2005] UKHL 23 on appeal from: [2003] EWCA Civ 1151 OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE JD (FC) (Appellant) v. East Berkshire Community Health NHS Trust and others (Respondents) and two other actions (FC) ON THURSDAY 21 APRIL 2005 The Appellate Committee comprised: Lord Bingham of Cornhill Lord Nicholls of Birkenhead Lord Steyn Lord Rodger of Earlsferry Lord Brown of Eaton-under-Heywood HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE JD (FC) (Appellant) v. East Berkshire Community Health NHS Trust and others (Respondents) and two other actions (FC) [2005] UKHL 23 LORD BINGHAM OF CORNHILL My Lords, 1. The question in this appeal is whether the parent of a minor child falsely and negligently said to have abused or harmed the child may recover common law damages for negligence against a doctor or social worker who, discharging professional functions, has made the false and negligent statement, if the suffering of psychiatric injury by the parent was a foreseeable result of making it and such injury has in fact been suffered by the parent. 2. On conventional analysis the answer to that question turns on whether the doctor or social worker owed any duty of care towards the parent, and the answer to that question essentially depends on whether, applying the familiar test laid down in Caparo Industries plc v Dickman [1990] 2 AC 605, 618, “the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other”.
    [Show full text]
  • THE AVMA LEGAL UPDATE JUNE 2016 – JUNE 2017 KATIE GOLLOP QC SEBASTIAN NAUGHTON FRANCES Mcclenaghan HERE's a THOUGHT
    THE AVMA LEGAL UPDATE JUNE 2016 – JUNE 2017 KATIE GOLLOP QC SEBASTIAN NAUGHTON FRANCES McCLENAGHAN WITH SPECIAL THANKS TO THE MEDICAL LAW REPORTS HERE’S A THOUGHT: “…I recognise that Mr. Carder has been awarded a sum which is small when compared with the costs of this litigation. That is regrettable. But litigation of this kind is often necessarily factually complex. Defendants faced with claims whose costs are likely to be out of proportion to the damages likely to be awarded after a trial should try to settle them early.”1 1 This is Lord Dyson, Master of the Rolls, adding a postscript to his decision (in July 2016) in Carder v The University of Exeter where the Court of Appeal dismissed the Defendant’s appeal against the liability finding pursuant to which the 87 year old Mr. Carder had been awarded £1,552.50!!!!!!!!!!!!!!! 1 BREACH OF DUTY IS THERE A DUTY OF CARE? Darnley v Croydon Health Services NHS Trust [2017] EWCA Civ 151 Claim fails CA FINDS by a majority (Jackson and Sales LLJ, McCombe LJ dissenting): no general duty owed by A&E receptionists arising out of advice about waiting times given to patients waiting to be seen. Claimant (“C”) suffered a head injury. When he attended A&E the receptionist told him that he would be seen in 4-5 hours. That was untrue. The accurate information was that because he had a head injury, he would be seen by a triage nurse within 30 minutes. He left the hospital after 19 minutes before being seen.
    [Show full text]
  • 1 BCL Law of Tort: Tutorial No
    1 BCL Law of Tort: Tutorial No. 1: The Duty of Care Stephen O’Halloran, BCL, LLM (Commercial)(Dist.) THE CASES: This handout is divided as follows: Part One: The Historical Development of the Duty of Care • Donoghue v. Stevenson [1932] All ER 1 • Governors of the Peabody Donation Fund v. Sir Lindsay Parkinson [1984] 3 All ER 529 • Yuen Kun-Yeu v. The Attorney General for Hong Kong [1987] 2 All ER 705 • Caparo Industries v. Dickman [1990] 1 All ER 568 • Glencar Explorations v. Mayo County Council [2002] 1 ILRM 481 Part Two: Duty of Care and Public policy • H.M.W. v. Ireland [1997] 2 IR 141 • Capital and Counties v. Hampshire [1997] 2 All ER 865 • Osman v. UK (1998) 29 EHRR 245 • Kent v. Griffiths [2002] 2 All ER 474 • Glencar Explorations v. Mayo County Council [2002] 1 ILRM 481 (for the application of the Osman decision in Ireland.) Part Three: Liability for Omissions and the Acts of Third Parties • Carmarthenshire County Council v. Lewis [1955] 1 All ER 294 • Home Office v. Dorset Yacht Club [1970] 2 All ER 294 PART ONE: THE HISTORICAL DEVELOPMENT OF THE DUTY OF CARE Donoghue v. Stevenson Facts: The plaintiff’s friend bought her a ginger beer. The bottle was made out of brown opaque glass, which made it impossible to see the contents. The bottle was also sealed when it was bought. After taking a drink from the bottle, she poured the rest onto her ice cream, and when she did, a decomposing snail came out. She claims she got extremely ill as a result.
    [Show full text]
  • The Tort of Negligence
    Asif Tufal THE TORT OF NEGLIGENCE DEFINITION - 1 DEFINITION - 2 The breach of a legal duty to take “Negligence is the omission to do something care, resulting in damage to the which a reasonable man, guided upon those claimant which was not desired by considerations which ordinarily regulate the the defendant: L.B. Curzon, conduct of human affairs, would do, or doing Dictionary of Law. something which a prudent and reasonable man would not do.” Per Alderson B., Blyth v Birmingham Waterworks Co. (1856) 1. DUTY OF CARE A duty of care was originally established by applying Lord Atkin’s “Neighbour” Test from: Donoghue v Stevenson (1932). The modern three-stage test was laid down by the HL in: Caparo Industries v Dickman (1990). The court must now consider: (A) Whether the (B) Whether there is a (C) Whether in all the consequences of the relationship of proximity circumstances it would be defendant’s act were between the parties, ie a fair, just and reasonable reasonably foreseeable. legal relationship or that the law should impose a physical closeness. duty. For example, damage or harm was held to be reasonably For example, there was It was held not to be fair, just foreseeable in: proximity in: and reasonable to impose a duty on the police in: Kent v Griffiths (2000); and Home Office v Dorset Jolley v Sutton LBC (2000). Yacht Club (1970). Hill v C.C. of W. Yorkshire (1988). But not in: But not in: However, a duty was imposed Bourhill v Young (1943); or Caparo v Dickman (1990).
    [Show full text]
  • The Bully Problem
    The Bully Problem Eric is a pupil at The Beeches School. David is the headmaster of the school. For a number of weeks Eric has been subject to severe bullying from Bob, a fellow pupil. David, the headmaster, is aware that the bullying is taking place but takes no steps to remonstrate with, or punish, Bob. Bob continues to bully Eric. Eventually, Eric can take no more and swallows some bleach in an attempt to kill himself. Zelda discovers Eric foaming at the mouth and goes into shock. Sam rings for an ambulance. The ambulance takes one hour to arrive when the normal response time would be twenty minutes. By the time the ambulance arrives Eric is dead. It is determined that had the ambulance arrived twenty minutes after Sam’s call, Eric would probably have died anyway but there was a 20% chance that with proper treatment he would have pulled through. Zelda now suffers from severe depression. Discuss. Model answer Taking each possible claimant in turn – Eric’s estate Claim against Bob for harassment/battery Bob committed a tort in relation to Eric in bullying him – either the tort of harassment (Protection from Harassment Act 1997) or battery (assuming the bullying consisted in hitting Eric). Eric’s estate will be entitled to sue Bob for damages in respect of the injuries and consequential pain and suffering experienced by Eric as a result of Bob’s bullying before he died. Claim against David in negligence David owed Eric a duty to take reasonable steps to see that he would be physically safe at school: X v.
    [Show full text]