Breach of Duty of Care - Coursework Example

Name of the Student] [Name of the Professor] [Name of the Course] [Date] Breach of Duty of Care The notion of duty of care is of paramount importance in tort cases. The connection, in cases entailing negligence, between a breach of duty and the resultant damage, is provided by causation. Several tests are utilised, in order to establish causation, and these tests, principally attempt to describe an event that can be classified as a breach of duty, and which can be construed as the basis of the damage sustained by the claimant. The but for test is used, in order to establish proof of causation in tort1. It is sufficient for the claimant to prove that he would not have sustained the injury, in the absence of the breach of duty by the defendant. This is essential, and if the claimant fails to establish this, then his claim will not succeed for the reason that there was no proof of causation. Nevertheless, failure of a claim on these grounds is a comparatively rare occurrence. In fact, in most of these incidents, cause and effect are proximate to the extent that the but for test produces the correct conclusion2. In Donoghue v Stevenson, it was held that duty of care had evolved from the principle that people have to take reasonable care to avoid acts or omissions that cause injury to others. In addition, an individual is held liable for a negligent act, if he owes a duty of care to the injured claimant. This has to be established by the claimant, and is based on the neighbour principle, which was developed in this case3. In its subsequent decisions the House of Lords established the requirements for the existence of a duty of care. These are; first, whether the injury sustained by the claimant was a reasonably foreseeable consequence; second, whether there was a proximate relationship between the claimant and the defendant; and third, whether the imposition of a duty of care was fair, just, and reasonable, under all circumstances4. In Marc Rich v Bishop Rock Marine, a ship’s hull was damaged. A classification society inspected the ship and recommended that it could continue on its voyage. Thereafter, the ship sank and all of its cargo was lost. The House of Lords held that despite the negligence of the society and the presence of the elements of foreseeability and proximity; it would be not be reasonable, just, and fair to impose a duty of care on the society5 Swansea Sprites To establish a tort of negligence; the defendant should be under a duty of care; this duty should have been breached by him; and this breach of duty should have been the cause of the injury to the claimant6. In this problem, Cheryl is a spectator of an ice hockey match. It is to be examined whether the Swansea Sprites ice hockey team, owes a duty of care to Cheryl. In order to assess duty of care in torts cases, the courts developed a three stage test in Caparo v Dickman. In this case, the House of Lords formulated a three stage test, in order to ascertain whether a duty of care was present. The first of these relates to whether the outcome of the defendant’s acts was predictable. The second stage of this test evaluates, whether there had been sufficient proximity. The last stage ascertains, whether the imposition of a duty of care, under the circumstances, would be equitable and reasonable7. As such, in accordance with this test, three issues have to be satisfied for establishing a duty of care. These are; foreseeability, proximity and reasonableness. In Anns v Merton London Borough the House of Lords held that the applicability of the proximity test developed in Caparo v Dickman, was determined by the nature of the relationship that was in existence, between the parties8. In our problem, the puck had been hit into the crowd of spectators. However, this instance was not the first of its kind, and had occurred three times, in the past 10 years. This indicates the negligent attitude of Swansea Sprites towards the safety of spectators. As per the decisions in Murphy v Brentwood; Caparo Industries v Dickman; and Marc Rich v Bishop Rock Marine, Swansea Sprites owes a duty of care towards its spectators. In Bolton v Stone, the court held that if the outcome of an act constitutes a small risk, then no reasonable person would take precautionary measures to prevent its occurrence. Consequently, a duty of care could not be imposed on the defendant. In this case, a cricket ball from a ground with a 17 foot tall fence, struck the claimant. In 30 years, just 6 cricket balls had crossed this fence. In addition, the claimant was a 100 yards from the fence, when the ball, which had crossed 75 yards to clear the fence, hit her. The occurrence of such incidents, though foreseeable, was extremely unlikely. Consequently, no liability was attached to the cricket club9. On the other hand, in our case, the plastic fence was just 2 metres in height, and the puck had been hit into the crowd on several occasions in the past10. Therefore, Swansea Sprites had behaved in a negligent manner, and were in breach of a duty of care towards the spectators. Consequently, they are liable for the damages caused to Cheryl. Danni Danni had been recently diagnosed with diabetes. As she had no other option, she had to drive the ambulance and transport an injured Cheryl, to hospital. In accordance with the case law discussed above, Danni’s employer should have arranged some other ambulance driver for taking Cheryl to hospital. Their negligence resulted in severe damage to Danni and Cheryl. As per the decision in Bank of Montreal v Dominion Gresham, employers owe a duty towards each and every employee11. Furthermore, Danni who had been diagnosed with diabetes was made to drive the ambulance. The employer is thus liable for the accident caused by her and the resultant losses suffered by Cheryl. In Phelps v London Borough, vicarious liability was attached to the employers for the actions of their employees, as a duty of care had been established. In this case, the court held that a duty of care had been breached by an educational psychologist, who had not applied the necessary skill and care, in the course of her duties12. If Danni had been unaware of her disease, she would have been held responsible for negligent driving and the losses caused to Cheryl, as if this had been done by any other individual placed in the same situation. Her employer will also be held vicariously responsible for her misdeeds. Simon In general, the courts examine the acts of doctors, by making a comparison with what other doctors, having the same expertise and placed in similar circumstances, would have done. This was the nature of the ruling in Lanphier v Phipos13. In R v Bateman, In R v Bateman, it was held that the doctor was not negligent since he had followed established medical practices14. In Muir v Glasgow Corporation, the House of Lords held that a reasonable man would not display an excess of confidence and apprehension15. This principle can be applied to doctors, in negligence cases, as doctors are expected to possess a reasonable degree of skill and competence in carrying out their profession. In our case, the junior doctor Simon treated Cheryl, on the basis of a recently published article in an European medical journal. It had been clearly stated in that article that though the recovery time of the patient would be reduced, the risk of complications would be increased. Under these circumstances, Simon, as an inexperienced doctor, should not have undertaken this risky treatment. Instead of this, he should have allowed Cheryl to take her own time for recovery, by following conventional treatment. Thus, Simon will be held responsible for the losses caused to Cheryl, due to his over enthusiasm, as per the the case-law discussed above. Simon’s employer is also vicariously liable for the losses caused to Cheryl. Works Cited Anns v Merton London Borough (1978) AC 728. Bank of Montreal v Dominion Gresham (1930) AC 6591. Bolton v Stone (1951) AC 850. Burton, F and P Mead. Piba Personal Injuries Handbook. Jordans, 2007. Caparo Industries v Dickman (1990) 1All ER 568. Donoghue (or McAlister) v Stevenson (1932) All ER Rep 1. Lanphier v Phipos (1838) 3 CUP 475. Marc Rich & Co Ag and others v Bishop Rock Marine Co Ltd (1995) 3 All ER 307. Muir v Glasgow Corporation (1943) SC (HL) 3. Murphy v Brentwood DC (1990) 2 All ER 908. Phelps v London Borough of Hillingdon (2003) 3 WLR 776. R v Bateman (1925) Cr. App. R. 8. Sooriakumaran, P, ‘The changing face of medical negligence law: from Bolam to Bolitho’, British Journal of Hospital Medicine, Jun 2008: 335 – 338. Read More