Duty of care, Causation, Remedies, Breach of duty, Forseeability, Risk

Baljeet was driving a hi sports car very fast down the motorway. It was raining and there was thick fog, making disability very poor. Due to his negligent driving, he collided with chrises car, which had broken down earlier and was parked leagaly at the side of the road awaiting a breakdown truck. Chris was inside his car and sustained serious leg injuries on impact, Baljeets car then ploughed into a police patrol car causing Judith the sole occupant, to suffer a heart attack, Judith died shortly afterwards in hospital. It was later discovered that for a number of years Judith had been receiving treatment for a heart defect, her husband Peter now wants to sue Baljeet in negligence.

Shortly after the accident an ambulance, which was rushing to the scene, ran into Baljeets car, which was in the middle of the road. Brian, the ambulance driver, who was not wearing a seatbelt, was very badly injured, and lost a leg as a result.

Chris was taken to a nearby hospital and was given an injection as a matter of routine treatment. The injection was incorrectly administered by Dr Khan, who had been working in the A & E dept of the hospital for a couple of days as cover for staff on holiday leave. Dr Khan who was a junior doctor, normally worked in the children's ward and was unaccustomed to the hustle and the bustle of the A & E dept. as a result of the injection Chris suffered brain damage.

Answer all of the following questions

  1. Explain whether Baljeet owes a duty of care to Judith Chris and Brian.
  2. Discuss whether Baljeet has fallen below the standard of care required of him.
  3. (a) Discuss whether Dr Khan has fallen below the standard required of him.
    (b) Explain what is meant by the phrase novus actus interveniens .
    (c) Using relevant case law and the maxim novus actus interveniens construct an argument supporting the view that Chris' brain damage is not legally the fault of Baljeet.
    (d) Explain the significance of Judith's pre-existing injury/illness
  4. Consider whether there are any defences that Baljeet may rely upon and what Limitation periods will apply to any action bought against him.

Firstly we must ask do the circumstances of the case fall within what the law considers to be an actionable obligation to take care? The concept of a duty of care issue reflects the fact that not all relationships, activities and forms of harm are recognised as fully within the ambit of liability in negligence or if so, that they are so only to a limited degree, for example economic competition, and negligent misrepresentations.

At the same time allows courts to assess the ambit of liability and whether there is a need to expand it to take account of changing conditions. All the victims here would have to would have to establish that Baljeet owes a duty of care to them, that the duty was breached and that this breach caused the accident for which damages are being sought. A duty of care is established by the principles set out in Caparo1 which state that the damage must be reasonably foreseeable by a reasonable person, there was must be proximity of relationship between the claimant and the defendant, and that finding in favour of the defendant must be fair, just and reasonable. In Caparo v Dickman 1990 Lord Bridge drew a distinction between the different approaches that could be adopted in identifying the existence of a duty of care. Traditional approach -where the existence of a duty of care was found in different specific situations, each exhibiting its own particular characteristics and the modern approach
-Such as that followed by Lord Wilberforce in Anns And Others -v- Merton London Borough Council. 2

Lord Bridge went on to say that he felt that the law had moved in the direction of attaching greater significance to the traditional categorisation of distinct and recognisable situations as guides to the existence, scope and the limits of the varied duties of care which the law imposes. The current test of the duty of care is that adopted by the Australian judge Brennan in Sutherland Shire Council v Heyman, where the duty of care will depend on the application of a single tier test where regard will be had to all the circumstances of the case in deciding whether there is a duty of care or not.
Lord Bridge in Caparo endorsed the Sutherland judgement, and said that forseeability is a composite test. Of itself forseeability is not a sufficient test of negligence. The courts are now looking for a relationship of proximity.

Certainly there would be a duty of care owed to Chris as another road user. There is a foreseeable chance of harm occurring to other road users form the actions of drivers, and also there is a proximity of relationship here of course.

In addition based on the same principles a duty of care will be owed to Judith, as for all intensive purposes she was a road user or someone that could be affected by the virtue of the actions of Baljeet in using the road. Damage could have occurred to her with reasonable foresight, qualified by formulations in terms of proximity (are parties close enough at law in a general sense to warrant liability.

As regards to Brian, there is no doubt that as a road user, there is a sufficient proximity for a duty of car to arise. In addition there could be foreseeable harm occurring form the negligent actions by Baljeeet, and of courses this duty of care is owed vica versa.

Having established in broad terms that there was a duty of care owed to all three of the claimants we now must move on to ascertain whether or not that duty of care was breached by Baljeet. In essence did the D's conduct fall below an acceptable standard of conduct in circumstances? A finding of negligence depends on existence of risk in D's conduct, and that risk must be "reasonably foreseeable" not merely foreseeable as per the case of Bolton v. Stone - as the latter would place too heavy a demand on activity and be "contrary to standards which guide ordinary careful people in ordinary life."
The test that was set out in that case is whether the risk is so small that a reasonable person, aware of the safety implications, would have thought it right to have refrained from taking protective steps. The test is objective, i.e. what a reasonable person in the shoes of the defendant would have done in the circumstances, rather than the standard of each individual defendant, as latter would be so variable as to be no test (Vaughn v. Menlove). The test is applied to the facts and particular circumstances in which the mind of the defendant should be exercised. "Negligence is the omission to do something which a reasonable [person], guided upon considerations which ordinarily regulate the conduct of human affairs, would do or dong something which a prudent and reasonable [person] would not do." (Blyth v. Birmingham Waterworks Co.) 3 In addition the standard embodies a socially acceptable level of knowledge, experience; skill and intelligence below which we cannot fall except at our peril (see Holmes, The Common Law):
Therefore, with all these things taken into consideration, in my view the court is likely to hold that the conduct of Baljeet has fallen below the requisite duty of care required of him, especially considering the circumstances as regards to the weather when the accident had happened, and the speed that he was driving at as well.

In assessing risk legitimate to consider not only Degree of Risk, but also: Risk of greater injury/degree of damage (Bolton; Paris v. Stepney; Wagonmound Ease or difficulty of precautions against risk (Wagon Mound 2); Utility or otherwise of D's activity/conduct (Wagon Mound 2). To see if there was a reasonable forseeability of risk, there is no doubt that Baljeet could have guarded against the risk easily by driving slower and that it was reasonably foreseeable that driving the way that he did in the aforementioned conditions will equate to a breach of a duty of care.

We shall now turn to whether or not Dr. Khan fell below the standard of care that wad expected of him. When professionals are being questioned the test for breach of duty of care is the Bolam test.4 Professionals are judged by the standard of the reasonable man who possesses the same skill as them. If the expert in question could be judged to have acted reasonably by a reasonable body of professional opinion then there will be no breach. In my mind a doctor, even a junior one, in carrying out a routine injection should be able to administer it properly to the patient , thus because of this the courts are likely to hold that Mr Kahn did breach the duty of care that was expected of him.

A novus actus intereniens is an act which intervenes and can heave the effect of breaking the chain of causation. In this context the questions are whether the D should be held liable for the intervening conduct of P. or third parties which combine with the actions of the D. to produce harm to P, the activities of P. or third parties which aggravate damage or injury which D. has already caused. The intervening event is typically negligence or irresponsibility of P. or third parties.

In essence in favour of the assertion that the brain damage was not caused by Baljeet is the novus actus interveniens of Dr. Khan. Here we must assess causation, so we must ask said the D's conduct actually cause the injury or damage which the P. alleges? In other words was there a causal link between act and consequence in a factual sense or cause-in-fact?

The first test to look at is the "But for" test; also know as causation in fact. If the damage would not have occurred but for the defendant's breach of duty then the damage is a result of that breach as per the case of Barnett v Chelsea and Kensington Hospital Management Committee.5 There is no doubt that the brain damage would have not occurred had it not been for the actions of Baljeet.

Then we must go on to ask if the there is a causal link between the D's conduct and the injury or damage to the P. Even though the other requirements for liability are satisfied the facts may suggest that the chain of events is so out of the ordinary or bizarre that, while there is cause-in-fact, it would be unjust to impose liability. This is known as remoteness of damage or legal cause. The test is reasonable foresight, qualified by considerations of ease of precaution; and seriousness of consequences. Your third task in proving a negligent act is to show that the damage suffered to the plaintiff was as a result of the breach of duty and not too remote a consequence of it.

A wrongful act can have a long chain of consequences. The law says that the defendant will be liable for the consequences of his breach of duty which are reasonably foreseeable. This was stated in The Wagon Mound.6 In this case it was held foreseeable that the spillage of fuel oil would cause fouling of slipways. It was not foreseeable that the fuel oil would ignite and cause fire damage.

Finally as regards the Egg shell rule, this means that the wrongdoer must take his victim as he finds him. This means that if you injure someone you are liable to whatever harm he suffers even if greater than expected. The greater damage might be due to the victim having a weak heart, thin skull or as in Smith v Leech Brain & Co. Ltd 1962 a pre malignant cancer triggered off by a splash of molten metal. The latter case of Robinson v Post Office 1974 concerned the plaintiff cutting his leg as he came down an oily ladder. When his leg was treated he was given an anti-tetanus injection. He was allergic to it and the result was brain damage. The Post Office was held liable as it was foreseeable that the dangerous ladder would cause some injury. It was also foreseeable that such an injury would require medical treatment so the Post Office were liable for all the consequences of the treatment. Thus it will not absolve Baljeer from liability just because of the inherent frailties that Judith has.

There would not seem to be any complete defences that are open to Baljeer. He may be able to argue that Chris was in someway contributory negligent has by the fact that he had staid in his car on the lay bay for example. However the defence of contributory negligence is only partial and will only have the effect of reducing the amount of damages that are available to Chris.

The effects of the limitation periods are procedural rather than substantive in that they bar a remedy and do not extinguish the claim itself. Sir John Donaldson MR stated: 'it is trite law that the English Limitation Acts bar the remedy and not the right, and furthermore, that they do not even have this effect unless and until pleaded'.7

The present limitation periods are mainly to be found in the Limitation Act 1980 (as amended by the Latent Damage Act 1986 and by the Consumer Protection Act 1987).
The basic principle is that actions in tort are subject to a limitation period of six years from the date on which the cause of action accrued (s2). But there are some important exceptions: · In actions in tort for damages for personal injury, the relevant period is three years. This starts to run either from the date on which the cause of action accrued or from the date upon which the person injured first had knowledge of his injury (ss 11 and 14). Thus there would be three year limitation on the scenario here; running from when the limitation period begins to run from the date on which the claimant's cause of action accrued.

  1. Caparo Industries plc v Dickman (1990) 2 A.C. 605[^ Return]
  2. [1977] 2 WLR 1024.[^ Return]
  3. (1856) 11 Ex 781[^ Return]
  4. Bolam v Friern Hospital Management Committee (1957) 2 All E.R. 118[^ Return]
  5. [1969] QBD 428[^ Return]
  6. [1961] AC 388[^ Return]
  7. Ronex Properties v John Laing Construction [1983] QB 393, 404[^ Return]

BIBLIOGRAPHY

Bermingham, V Nutcases Tort (Nutcases) Sweet & Maxwell

Hepple, R Tort Cases and Materials: Cases and Materials Butterworths Law

Jones , M Textbook on Torts7th ed. Blackstones

Tiernan, R Nutshells - Tort (Nutshells) Sweet & Maxwell

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