Law of Tort - Barnett v Chelsea and Kensington Hospital - Coursework Example

Law of Tort: Re-Sit work Jamie, Scott and Mark have all suffered damage in this scenario and their possible tort claims will be looked at in turn. Jamie and Scott may have a claim under the tort of negligence against Mr. Cantrell. It is during the course of Cantrell’s class that they were injured. In discussing Cantrell’s liability, it must first be established that he owed a duty of care to his students. The general principle for determining the existence of a duty of care was laid down in Donoghue v Stevenson1 where Lord Atkin said that a duty of care is owed to one’s “neighbour”-i.e. persons who are so closely and directly affected by one’s actions that one should reasonably foresee them to be so affected. Cantrell is the teacher of these boys. His actions are likely to have a foreseeable effect on them. As such it is very likely that the Courts will find that he owed a duty to Jamie and Scott. However, was this duty breached? There is no mention in the scenario of any specific action that Cantrell did that caused the injuries. Perhaps he did not supervise the students sufficiently or did not give them specific instructions or ensure they had safety gear on. Alternatively, it can be argued that Cantrell’s offending actions occurred after the injuries, in failing to get the boys immediate medical help. It says in the scenario that it was only after the commotion that resulted on Scott’s mishap that he sent Kenny to call the receptionist. Perhaps it can be argued that he should have called the ambulance himself or sought professional help immediately instead of sending a student off to get colleague with just first-aid training. Whatever Cantrell’s actions were, he will be judged according to the standards of a reasonable P.E. teacher, as he was acting in this capacity when the mishaps occurred. It is true that he is a newly qualified P.E. teacher but it is unlikely that the Courts will lower the due standard of care because of this. This is apparent from Wilsher v Essex AHA2 where the Court of Appeal rejected the argument that a junior inexperienced doctor owed a lesser standard of care than a more experienced doctor. The Courts pointed out that what mattered was not the standard of care owed by a particular doctor but the standard of care required for the act which he performed. This would apply to Cantrell as well. The question that the Courts would ask is whether a reasonable P.E. teacher would have acted like Cantrell did in that situation. Even if the duty was breached Cantrell may argue that his actions or omissions did not cause the boys’ damage. The test applied by the Courts in assessing causation is the “but for” test as seen in cases such as Barnett v Chelsea and Kensington Hospital 3 where the Courts ask whether the damage would have occurred but for the particular fault. With regard to Jamie, the damage in question would be injuries to the head, trauma from the surgery as well as the emotional distress pursuant to it. For Scott it would be the damage to his shoulder. Would these have occurred but for Cantrell’s breach, if any? Was it caused by a lack of supervision? If he had insisted on the wearing of protective headgear perhaps Jamie’s head injury may not have occurred. However, Cantrell may argue here that the actions of the caretaker intervened here as he had not unpacked the boxes yet. Such a novus actus interveniens in the form of a negligent act of a third party may break the chain of causation as seen in Knightley v Johns4. Scott’s own action may constitute a novus actus in relation to the further damage to his collar bone following his moped ride. He was told to avoid using his injured arm for eight weeks but he disobeyed and worsened his injury. The cases of McKew v Holland & Hannen & Cubitts5 and Wieland v Cyril Lord Carpets6 are illuminating in this respect. In McKew the claimant’s act was held to be intervening as the Courts felt that he had acted unreasonably and put himself in a position where his injuries could be worsened. On the contrary, in Wieland the claimant’s actions were seen as reasonable in the circumstances and it was held that as she had taken sufficient regard of her own safety and so her actions did not amount to intervening acts. It is likely that Scott’s action will fall into the McKew category. Riding a moped in his condition is unreasonable and he put himself in a dangerous situation where it was likely that he could exacerbate his injuries. As such, he is unlikely to be able to claim for the further damage that occurred after the moped accident. Alternatively, the Courts may reduce the damages owed to him on the basis of contributory negligence. It may be argued with respect to Jamie that his injuries were too remote for Cantrell to be liable for them. It may be argued that Jamie is more susceptible to blood clots than the average person. Cantrell may say this was an unforeseeable injury in relation to getting hit on the head during a game. However, the “egg-shell skull” rule says that one must take the victim as one finds him-i.e. even if Jamie was unusually susceptible to blood clots, Cantrell is still liable for the unforeseen damage (as seen in Smith v Leech Brain7). As long as some damage was foreseen, it was not necessary to foresee the entire extent of the damage. This principle would extend to the depression suffered by Jamie as well. Emotional injury is a possible ground for claiming damages. Jamie may instead bring an action in negligence against the school caretaker. Whether the caretaker owes a duty to the students is debateable. Unlike Cantrell, arguably the caretaker has less to do with the students and more to do with the general upkeep of the school. However it could be argued that this ‘upkeep’ is directly related to the students and so his actions are reasonably likely to affect them. If so, he will be judged for breach of his duty by asking whether a reasonable caretaker would have left the boxes unopened. The fact that it was safety gear may be relevant here. The above considerations as to causation and remoteness will apply to the caretaker as well. Scott may take action against Ben and Mark. As players in the same game, it is likely that they will be held to owe a duty of care to fellow players. However, it is unlikely that there was any breach involved. They acted as any reasonable cricket player would act, although it can be argued that Ben perhaps should not have kept on playing as a reasonable person would have stopped when they saw another player had been injured on the field. Jamie and Scott may also have a claim against Mrs. Price in failing to be available and respond to the situation in time. This would depend on what capacity Price acted in the school. Was she just a receptionist or a school nurse? Was she known to give medical help when it was needed by the students? If so, this may amount to a voluntary assumption of duty to provide first aid even though her normal capacity did not place such a duty on her (Chaudhry v Prabhakar8). However, even if such a duty existed, Price can be said to have acted reasonably. Any breach could only relate to her being unavailable at the reception and it is unlikely that this will be considered unreasonable. Even if the parties discussed above are held liable, the Courts may hold that Jamie and Scott had, by playing in the game voluntarily, assumed the risk of injury during normal play and as such the defence of volenti may be raised against them. This was seen in Simms v Leigh9 where a rugby player injured during the game was barred from recovering damages as the Courts deemed that he had consented to such risk of injury. Finally, Mark may take action against Jamie for the intentional tort of battery (the intentional and direct application of force to another person). As long as the force was intentional and direct, the fact that Jamie attacked Mark on the mistaken belief that it was lawful for him to do so as he believed Mark to be the cause of his injuries is irrelevant. This is apparent from Poland v John Parr10 where an employee thought he saw a boy stealing sugar from his cart and attacked him was held to have liable for battery. From the above it seems that while Mark has a good claim against Jamie, Jamie and Scott have weak claims against the relevant parties, mostly due to the difficult in finding a breach of duty by any of the parties in the scenario Bibliography Lunney, M. and Oliphant, K (2003). Tort Law: Text and Materials. 2nd ed. Oxford: OUP. Markesinis and Deakin (2003). Tort Law. 5th ed. Oxford: Clarendon Press. Read More