Fora successful action in negligence, four fundamentalpre-requisites need to be met.
Actionable damage must be suffered, a duty of care owed to theclaimant, a breach of duty and causation of the damage by the defendant’sactions. It must be considered whether there are any defences. Hettie will beadvised against Andy and Andy will advised against Dr Salt Andysuffered actionable damage, as established in Rothwell v Chemical Ltd1″conceptof being worse off, physically or economically, so that compensation is anappropriate remedy.” 2Andysatisfies this due to him becoming permanently deformed, thus compensation isan appropriate remedy.To ascertain duty of care, the defendant andclaimant have to been in a relationshipwhere the defendant is expected to takereasonable care not to cause harm. Andy and DrSalt’s doctor- patient relationship fulfilsthis.
For the claim to proceed, it must beproven thatsaid duty was breached by the defendant. The legal question of what was thestandard ofcare required from the defendant must be examined, consequently as Salt is aprofessional,the standard required is assessedby the professional standard ofcare which is illustrated in the case of Bolamv Friern Hospital Management. The standard ofcare required from DrSalt is the standard that is required from that of a personprofessing to have that special skill.
Willsher v Essex AHA3 confirms that the standardof care expected from a professionally qualified defendant isdeterminable by considering thesaid task he or she has undertaken and the nature of his or her”post”. Thus, he or she mustdemonstrate 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 andskill appropriate to the task , which would have been to perform the x-ray, routinely doneby a person holding hisrank.The secondprinciple put across by Bolam4 is that a professionaldefendant, will not be deemed to have fallen below the required standard ofcare if their conduct is seen to be proper by one responsible body ofprofessional opinion. In Bolam5, the claimant was givenelectro compulsive therapy, side effect being muscle spasms which lead to a fractured pelvisduring treatment. He argued that the doctor who administered treatment had beennegligent on the grounds that they did not give relaxant drugs prior totreatment, secondly on the basis that he was not physically restrained andfinally that the doctor did not warn him of the danger of broken bones so thathe could decide on whether to forgo the treatment or not.
At trial, the expert witnessevidence given were of different opinions on the correct procedure foradministering ECT. His lordship McNair J held a professional doctor would notbe held liable “merely because there is a body of opinion which would take acontrary view.”6In regard to Andy’s claim, Salt may argue that his decision not to X-ray not infact negligent as he was supported in his decision by a minority.
However, this ruling is controversial, asit allows professionals to be self-regulating and this has been called intoquestion by the case of Bolitho v City and Hackney Health Authority7which sets the limits of the Bolam test. “The court is not bound to hold that adefendant doctor escapes liability for negligent treatment just because heleads evidence from a number of medical experts who are genuinely of opinionthat the defendant’s treatment or diagnosis accorded with sound medicalpractice”8 per LordBrowne- Wilkinson. Judges can reject theexpert opinions if they provide no logical basis.
ForDr Salt’s decision to be deemed as logical it will need to be seen that Saltassessed the risks and benefits of the treatment. To x-ray an arm which has beeninjured is routine procedure, thus meaning the risk must not be that great, otherwiseit would not be a widespread procedure. Illustrated in the case Hunt v NHS Litigation Authority9,witnessessaid a forceps delivery would cause untold damage to the maternal populationbut conceded that it could havebeen carried out without difficulty in this case therefore, the evidencelacked a logical basis. In Andy’s case, the X-ray could have been carried outwithout risk of harm from radiation as substantiated by statistics, and in fact withholding treatment could be deemedirrationally. 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 thedefendant’s negligence, the negligence is not the cause of the claimant’sloss. Andy needs to substantiate that Dr Salt’s negligence was the causeof his deformity. It is obvious that Andy would not be deformed if Salt hadperformed an x-ray when he first examined him, as he would have been made awareof the need of a plaster cast.The claimant mustnext show that the damage causedwas not too remote. The case Wagon Mound No.
111 sets the test required forexamining remoteness of damage, which stands that the damage must be of a kindwhich was reasonably foreseeable. Andy’s deformity was reasonably foreseeable thathe would suffer that type harm, if routine treatment was withheld. On the otherhand, Dr Salt, may try to argue that the degree of damage suffered by Andy wasnot foreseeable but as illustrated in Jolleyv Sutton L.B.
C.12where an abandoned boathad 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 wasforeseeable, affirming that only the kind of injury need be foreseeable, andnot the specific outcome. In Andy’s case, the kind of injury suffered wasforeseeable from the moment Salt negligently refused to perform a routinex-ray.The last considerationfor a claim must be whether there are any defences.
In my opinion, there are nodefences in this particular case. Firstly,it is clear that Hettie has suffered actionable damage, in the form of propertydamage due to Andy’s negligence, therefore compensation is an appropriateremedy.Whereno relevant precedent exists to determine a duty, the courts apply the ‘Caparo test’13 todecide whether a new duty of care should be established. i) the damage must beforeseeable, ii) there must be a sufficiently proximate relationship betweenthe parties and iii) it must be “fair and reasonable” for the court to impose aduty. It was reasonably foreseeable that Hettie’s property would be damaged.There was a closeness of relationship between Hettie and Andy, being that itwas a relationship between a working professional and a customer. Additionally,Andy agreed to look at the radiator, thus assuming responsibility to safeguardthe claimant against the loss suffered.
Considering the relationship of Hettieand Andy, it is obvious that it is fair and reasonable that Andy shouldowe the claimant a duty of care. Fora breach of duty, the standard of care required was that of a professional.Bolam14, heldthat a member of the trade or profession, in this case plumbing, is held tolive 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 foronly one month. However, the case of Wells v Copper 15involved a defendant who suffered injuries while undertaking housework. It washeld that, householders who carry out work involving carpentry skills mustachieve the standards of a reasonably competent amateur carpenter, but not necessarily the standards that would be expected of aprofessional carpenter.
The significance is that the defendant should be heldnegligent, 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 hadonly been an apprentice for merely one month, and this is demonstrated in thefact that he forgot to drain the water from the radiator. Finally, it is quiteclear that Andy fell below the standard required as a reasonable professionalplumber would not havenegligently forgotten to drain the water before attempting to remove theradiator.Thefinal element being causation. The factual question being was Andy’s negligencea cause of Hettie’s loss? The answer is found using the “But for Test”16. IfAndy had not taken upon this job, Hettie’s wooden flooring would have beenintact, therefore, factual causation has been satisfied. The second part beingestablishing legal causation. The question being was the type of harm sufferedreasonably foreseeable? Using the test set in The Wagon Mound no.
117areasonable person would have foreseen that negligently forgetting to drain thewater would lead to flooding Hettie’s lounge and the damage of her flooring, thus,causation has been fulfilled.Whilstall four elements of a negligence claim have been satisfied, Andy may raise thedefence of volenti, a claimant’s voluntary acceptance of risk. Andy couldargue, Hettie knew he was apprentice and yet still allowed him to assist. Hettieshould consider that if this defence is seen to correct then Andy can avoidliability and paying compensation. To conclude, in the case of Andy v Salt, I believe Saltis likely to liable to Andy, however there are issues on whether there wasindeed 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 me1 Rothwell V Chemical andInsulating Co 2007 UKHL 392 Ibid 3 Willsher vEssex Area Health Authority 1988 1 AC 1074 4 Bolam vFriern Hospital Management Committee 1957 1 WLR 5835 ibid6 ibid7 Bolitho v City & Hackney Health Authority 1997 3 WLR 1151 8 ibid9 Hunt v NHS LitigationAuthority 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 WagonMound) (No 1) 1961 AC 38812 Jolley v.
Sutton LondonBorough Council 1998 1 W.L.R.
1082. 13 Caparo IndustriespIc v Dickman 19902 AC 605 14 Bolam v Friern HospitalManagement Committee 1957 1 WLR 58315 Wells v. Cooper 1958 2 All ER 527 16 Barnett vChelsea & Kensington Hospital 1969 1 QB 42817 (The Wagon Mound) (No 1) 1961AC 388