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Law of tort in establishing negligence

This paper advised Cheryl as to whether or not the identified parties (Swansea Sprites, Danni and Simon) have acted (or indeed failed to act) in breach of the duty of care. Advice is offered in relation to each party separately, with a view to brevity and clarity of exposition. Relevant case laws are cited, analysed and applied in deriving conclusions as to likely opinion of the court on the facts presented.

Advice in relation to Swansea Sprites

Since first step in establishing negligence is the legal duty of care, it is necessary to clarify that Swansea Sprites actually owe Cheryl a duty of care. This is confirmed by the application of ‘neighbour principle’ in Donoghue v Stephenson [1] . It is stated that reasonable care must be taken to avoid reasonably foreseeable injury to those who are so close enough to be directly affected by acts or omissions. The three stages test laid down in Caparo Industries plc v Dickman [2] , requiring foreseeability, proximity and that is fair, just and reasonable to impose a duty in the circumstances. As a spectator at a rink owned and operated by Swansea Sprites there is no doubt that a duty of care is owned to Cheryl on the facts.

Having established that a duty of care exists, the next step is to decide whether Swansea Sprites has breached that duty of care in other words, whether it fell below the required standard of care. The question appears to be: was Swansea Sprites in breach of that duty to erect a protective plastic screen that was only two meters high? Presumably a higher screen would have offered Cheryl complete protection. The general standard of care is objective and is sated in Blyth v Birmingham Waterworks [3] as follows:

“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinary regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.”

Thus, on our facts: would a reasonable man have ensured that a higher protective screen was in place at the rink owned by Swansea Sprites?

In the case of Bolton v Stone [4] , a ball was struck out of a cricket ground and hit the claimant. Evidence was adduced indicating that a ball had only been hit out of the ground six times over the past thirty year. The House of Lord held that the likelihood of injury was so low that the cricket club had not been negligent in allowing cricket to be played without additional precautions (such as increasing the height of the fence). This is an example of the ‘the cost of running of risk’, in which the court weights up the likelihood or risk and severity of potential harm against the costs.

Evidence was indicated that it is also extremely rare for a puck to fly over the screen at the ice rink [5] . It is in fact a very rare occurrence and the costs of guarding against the occurrence are likely to be deemed excessively high. As Lord Oaksey stated in Bolton:

“…an ordinary man does not take precautions against every foreseeable risk. He can, of course, foresee the possibility of many risks, but life would be almost impossible if he were to attempt to take precautions against every risk which he can foresee. He takes precautions against risks which are reasonably likely to happen.”

Balanced against this a court would consider the great financial cost entailed in increasing the height of the protective screen. Moreover, even if the height was increased to, say three meters, this would not guarantee that a puck would never ricochet off and hit somebody again. Cheryl is advised that it is unlikely that Swansea Sprites will be found in breach of their duty.

Advice in relation to Danni

Applying three stages test it is again clear that Danni owes Cheryl a duty of care. The question is: was that of duty broken on the facts? In fact, there are cases in which the emergency services have been deemed objective justified in taking risks that indicate ostensible negligence given the important and often life-saving services they provided. (Watt v Hertfordshire County Council [6] )

However, there is no life threatening situation that might serve to justify a measure of negligence. Cheryl has received nothing more than a “small cut to the head”. The risk entailed in Danni driving the ambulance is very high. An out of control ambulance due to incapacity of its driver could endanger multiple lives. More importantly, the risk was abundantly foreseeable, given that Danni had been diagnosed with diabetes and expressly prohibited from driving. In Roberts v Ramsbottom [7] , it was held that the defendant driver was liable (despite the effects of his stroke) because he did realise that his consciousness had become impaired and clouded and he continued to drive. Liability was found on the basis that he fell below the standard of the reasonably competent driver (see Nettleship v Weston [8] ). Therefore Danni is likely to be found liable (following Roberts and Nettleship) if she had gained some inkling that her driving was impaired (albeit by some unknown condition) at some point prior to the moment she eventually had the accident.

In regards to the follow-up question posed, if Danni had been wholly unaware that she suffered from diabetes then Cheryl would have no claim against her for breach of that duty. The appropriate test was that of a ‘reasonably competent driver unaware that he is or may be suffering from a condition that impairs his ability to drive’ and ruling that the driver had not fallen below this standard. It is based on the relevant authorities of Mansfield v Weetabix Ltd [9] .

Advice in relation to Simon

Cheryl is advised that medical negligence is not conceptualized with reference to the stated Blyth v Birmingham Waterworks test. A specific line of precedent is applicable in this particular context.

In Bolam v Friern Hospital management Committee [10] it was held that no negligence would be found if a doctor:

‘exercise the ordinary skill of an ordinary competent man exercising that particular art…[and acts] in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular act.’

Relying on this Simon may point to support for his decision to treat Cheryl as he did in the article published in the respected European Journal of Osteopathy. However, in Bolitho v City and Hackney Health Authority [11] , it was held that in addition to being able to point to a reasonable body of medical support, the practice in question must be deemed logically defensible by the court itself. Such is the variety of opinion within the medical profession, it is possible to find at least some support for a vast range of practices that the majority of the profession might find untenable. The court in Bolitho recognized this and thus added a layer of objective judicial verification to the Bolam test.

Cheryl is advised that an expert medical opinion must be obtained. Cheryl’s foot has been amputated as a consequence of this procedure – an injury of the utmost severity and it is likely that a court will find Simon in breach of his duty despite the publication in the European Journal of Osteopathy. Just because the Journal is respected, this doesn’t mean that the idea conveyed in this particular article enjoy widespread, reasonable support within the medical profession, or that the court will be suitably impressed: Marriott v West Midlands Health Authority [12] . Moreover, the results of using the procedure in Cheryl’s case speak very graphically for themselves.

It is irrelevant that Simon is a junior doctor. He will be held that to the ordinary objective standard of competence imposed on doctors occupying his particular post: Wilsher v Essex Area Health Authority [13] . His relative youth and/or inexperience are of no consequence and no defence.

Accordingly, subject to further particulars concerning the procedure employed and expert medical opinion, it is advised that Simon will be held to have breached his duty on the facts.

Cheryl is advised in summary: 1) she probably has no claim against Swansea Sprites, due to the extreme rarity of the occurrence that caused her injury. 2) she has a compelling against Danni (unless Danni was unaware of her condition in which case Cheryl has no clam due to lack of foreseeability.) 3) Subject to the receipt of expert medical opinion it seems likely that Simon will be found in breach of duty.



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