For proceed, it must be proven that said duty

For
a successful action in negligence, four fundamental
pre-requisites need to be met. Actionable damage must be suffered, a duty of care owed to the
claimant, a breach of duty and causation of the damage by the defendant’s
actions. It must be considered whether there are any defences. Hettie will be
advised against Andy and Andy will advised against Dr Salt

 

Andy
suffered actionable damage, as established in Rothwell v Chemical &
Insulating Ltd1
“concept
of being worse off, physically or economically, so that compensation is an
appropriate remedy.” 2Andy
satisfies this due to him becoming permanently deformed, thus compensation is
an appropriate remedy.

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To ascertain duty of care, the defendant and
claimant have to been in a relationship

where the defendant is expected to take
reasonable care not to cause harm. Andy and Dr

Salt’s doctor- patient relationship fulfils
this. For the claim to proceed, it must be

proven that
said duty was breached by the defendant. The legal question of what was the

standard of
care required from the defendant must be examined, consequently as Salt is a

professional,
the standard required is assessed
by the professional standard of

care which is illustrated in the case of Bolam
v Friern Hospital Management. The standard of

care required from Dr
Salt is the standard that is required from that of a person

professing to have that special skill. Willsher v Essex AHA3 confirms that the standard
of

care expected from a professionally qualified defendant is
determinable by considering the

said task he or she has undertaken and the nature of his or her
“post”. Thus, he or she must

demonstrate the same standard is required from other members of the same
“post”. Therefore,

in our case Dr Salt was held to exercise a degree of care and
skill appropriate to the task 

, which would have been to perform the x-ray, routinely done
by a person holding his

rank.

The second
principle put across by Bolam4 is that a professional
defendant, will not be deemed to have fallen below the required standard of
care if their conduct is seen to be proper by one responsible body of
professional opinion. In Bolam5, the claimant was given
electro compulsive therapy, side effect being muscle spasms which lead to a fractured pelvis
during treatment. He argued that the doctor who administered treatment had been
negligent on the grounds that they did not give relaxant drugs prior to
treatment, secondly on the basis that he was not physically restrained and
finally that the doctor did not warn him of the danger of broken bones so that
he could decide on whether to forgo the treatment or not. At trial, the expert witness
evidence given were of different opinions on the correct procedure for
administering ECT. His lordship McNair J held a professional doctor would not
be held liable “merely because there is a body of opinion which would take a
contrary view.”6
In regard to Andy’s claim, Salt may argue that his decision not to X-ray not in
fact negligent as he was supported in his decision by a minority.

However, this ruling is controversial, as
it allows professionals to be self-regulating and this has been called into
question by the case of Bolitho v City and Hackney Health Authority7
which sets the limits of the Bolam test. “The court is not bound to hold that a
defendant doctor escapes liability for negligent treatment just because he
leads evidence from a number of medical experts who are genuinely of opinion
that the defendant’s treatment or diagnosis accorded with sound medical
practice”8 per Lord
Browne- Wilkinson.  Judges can reject the
expert opinions if they provide no logical basis.

For
Dr Salt’s decision to be deemed as logical it will need to be seen that Salt
assessed the risks and benefits of the treatment. To x-ray an arm which has been
injured is routine procedure, thus meaning the risk must not be that great, otherwise
it would not be a widespread procedure. Illustrated in the case Hunt v NHS Litigation Authority9,witnesses
said a forceps delivery would cause untold damage to the maternal population
but conceded that it could have
been carried out without difficulty in this case therefore, the evidence
lacked a logical basis. In Andy’s case, the X-ray could have been carried out
without risk of harm from radiation as substantiated by statistics, and in fact withholding treatment could be deemed
irrationally.

The next step is causation.
It needs to be seen that the breach of duty is the factual cause of the damage.
The test used is the “but-for test” from Barnett v Chelsea and Kensington Hospital10. If the claimant’s injury had occurred regardless of the
defendant’s negligence, the negligence is not the cause of the claimant’s
loss. Andy needs to substantiate that Dr Salt’s negligence was the cause
of his deformity. It is obvious that Andy would not be deformed if Salt had
performed an x-ray when he first examined him, as he would have been made aware
of the need of a plaster cast.

The claimant must
next show that the damage caused
was not too remote. The case Wagon Mound No.111 sets the test required for
examining remoteness of damage, which stands that the damage must be of a kind
which was reasonably foreseeable. Andy’s deformity was reasonably foreseeable that
he would suffer that type harm, if routine treatment was withheld. On the other
hand, Dr Salt, may try to argue that the degree of damage suffered by Andy was
not foreseeable but as illustrated in Jolley
v Sutton L.B.C.12where an abandoned boat
had been left on Council land and was not removed. Children tried to repair it,
and consequently injured when it fell. It was held that the kind of injury was
foreseeable, affirming that only the kind of injury need be foreseeable, and
not the specific outcome. In Andy’s case, the kind of injury suffered was
foreseeable from the moment Salt negligently refused to perform a routine
x-ray.

The last consideration
for a claim must be whether there are any defences. In my opinion, there are no
defences in this particular case.

 

Firstly,
it is clear that Hettie has suffered actionable damage, in the form of property
damage due to Andy’s negligence, therefore compensation is an appropriate
remedy.

Where
no relevant precedent exists to determine a duty, the courts apply the ‘Caparo test’13 to
decide whether a new duty of care should be established. i) the damage must be
foreseeable, ii) there must be a sufficiently proximate relationship between
the parties and iii) it must be “fair and reasonable” for the court to impose a
duty. It was reasonably foreseeable that Hettie’s property would be damaged.
There was a closeness of relationship between Hettie and Andy, being that it
was a relationship between a working professional and a customer. Additionally,
Andy agreed to look at the radiator, thus assuming responsibility to safeguard
the claimant against the loss suffered. Considering the relationship of Hettie
and Andy, it is obvious that it is fair and reasonable that Andy should
owe the claimant a duty of care.

For
a breach of duty, the standard of care required was that of a professional.
Bolam14, held
that a member of the trade or profession, in this case plumbing, is held to
live up to the standard of an ordinary skilled member of the trade in question.
Andy may counter this principle, due to the fact he was only an apprentice for
only one month. However, the case of Wells v Copper 15
involved a defendant who suffered injuries while undertaking housework. It was
held that, householders who carry out work involving carpentry skills must
achieve the standards of a reasonably competent amateur carpenter, but not necessarily the standards that would be expected of a
professional carpenter. The significance is that the defendant should be held
negligent, as they should be aware of their own limits and not surpass that.
Andy’s acceptance to fix Hettie’s radiator was negligent, considering he had
only been an apprentice for merely one month, and this is demonstrated in the
fact that he forgot to drain the water from the radiator. Finally, it is quite
clear that Andy fell below the standard required as a reasonable professional
plumber would not have
negligently forgotten to drain the water before attempting to remove the
radiator.

The
final element being causation. The factual question being was Andy’s negligence
a cause of Hettie’s loss? The answer is found using the “But for Test”16. If
Andy had not taken upon this job, Hettie’s wooden flooring would have been
intact, therefore, factual causation has been satisfied. The second part being
establishing legal causation. The question being was the type of harm suffered
reasonably foreseeable? Using the test set in The Wagon Mound no.117a
reasonable person would have foreseen that negligently forgetting to drain the
water would lead to flooding Hettie’s lounge and the damage of her flooring, thus,
causation has been fulfilled.

Whilst
all four elements of a negligence claim have been satisfied, Andy may raise the
defence of volenti, a claimant’s voluntary acceptance of risk. Andy could
argue, Hettie knew he was apprentice and yet still allowed him to assist. Hettie
should consider that if this defence is seen to correct then Andy can avoid
liability and paying compensation.

 

To conclude, in the case of Andy v Salt, I believe Salt
is likely to liable to Andy, however there are issues on whether there was
indeed a breach of duty. In regard to Hettie v Andy, Andy is liable to Hettie,
due to all elements of a claim in negligence have been me

1 Rothwell V Chemical and
Insulating Co 2007 UKHL 39

2 Ibid

3 Willsher v
Essex Area Health Authority 1988 1 AC 1074

 

4 Bolam v
Friern Hospital Management Committee 1957 1 WLR 583

5 ibid

6 ibid

7 Bolitho v City & Hackney Health Authority 1997 3 WLR 1151

 

8 ibid

9 Hunt v NHS Litigation
Authority 2000 MLC 0246 

10 Barnett v Chelsea &
Kensington Hospital 1969 1 QB 428

 

11 Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co (The Wagon
Mound) (No 1) 1961 AC 388

12 Jolley v.  Sutton London
Borough Council 1998 1 W.L.R. 1082.

 

13 Caparo Industries
pIc v Dickman 1990
2 AC 605 

 

14 Bolam v Friern Hospital
Management Committee 1957 1 WLR 583

15 Wells v. Cooper 1958 2 All ER 527

 

16 Barnett v
Chelsea & Kensington Hospital 1969 1 QB 428

17 (The Wagon Mound) (No 1) 1961
AC 388