Liability for Faulty Working Conditions - Essay Example

Legal Scenario The major legal issues which will apply in this case are: (a) Whether Paradise Bank can be held to liable for faulty working conditions that caused Lee’s injury (b) Whether Wellness Hospital can be held liable for delays in attending to Lee and transferring him from Paradise Bank to the hospital (c) Whether Dr. Nancy Leung can be held guilty of medical negligence. The facts of this case appear to suggest at the outset that Paradise Bank went to great lengths to ensure that Lester would be comfortable and happy in his job at Paradise Bank. For instance, providing the ergonomic chair in his office and other refurbishments which were being carried out appear to suggest that the bank was taking steps to accommodate Lester’s disability, i.e, the limp. The causal factor for Lester’s injury however, appears to have been the wetness on the floor which led to him slipping, because there were no cautionary signs posted about the wet floor. The major issue which arises is therefore, negligence on the part of Kowloon Bank and whether they had a duty of care towards Lester and their employees. The salient principles of tort law establishing injury and harm to plaintiffs have been derived on the basis of judgments which have been set out in various cases such as Donaghue v Stevenson1, Anns v Merton Borough London Council2, Murphy v Brentwood DC3 and Caparo v Dickman4, which form the basis for the duty of care that forms the foundation of tort law. All of the above cases have established the “good neighbour” principle, wherein a person owes another a duty of care and this would especially be the case with employees having a duty of care towards their employees. The prevailing standard for medical negligence has been established in the case of Bolam5, i.e, the question of whether negligence has occurred must be assessed based upon whether a body of medical staff finds negligence to have occurred. McNorrie argues that the standards established in Bolam were bad in principle.6 He cites the case of Cavanagh v Ulster Weaving Co Ltd7 where employers were held to be liable for not taking good care of their employees. It must be noted at the outset that Lester had a disability and would have been responsible for equipping himself with necessary aids, such as a crutch in moving around the premises of the bank. Alternatively, he could have also requested such aids from the bank to enhance his mobility. The bank itself did all it could, i.e, providing him an ergonomic chair, etc. On the issue of not putting up signs that the floor was wet, the person liable would be the individual employee/cleaner who failed to post signs to state that the floor was wet, rather than the bank itself. Secondly, the magnitude of Lester’s injuries might not wholly have been caused by the wet floor, because he was already disabled with a limp. Secondly, the delays which occurred were mainly because of the lateness of arrival of the emergency medical technicians, rather than the fault of the bank itself, because Assistant 2 quickly called for assistance. Medical negligence may be established against the hospital for the delays in arriving to attend to Lester. In the case of Dr, Cheung however, the case would not be so easy to prove. Medical negligence is the mainly concerned with arriving at a determination of whether the defendant who would be a medical practitioner of some sort, has come up to the standard of care that is owed to the patient8. Medical Negligence in the United Kingdom was governed by the Bolam test, set forth in the case of Bolam v Friern Hospital, which stated that a doctor is not guilty of negligence if he has “acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art....”9 On the basis of this judgement, the question of whether or not a doctor is negligent is determined by whether or not his peers are of the view that s/he has acted within the parameters of standard practice. Applying this in the case of Dr. Cheung, it could be argued that she did her best under the circumstances. The delay which was caused in attending to him at the emergency department was something which could not be helped because there were so many emergency patients all waiting to be seen. In the circumstances, she made the decision to amputate which could well have saved Lester’s life by preventing infection. Applying the body of medical opinion, it could also be argued that Dr. Cheung did not use restraints because this was not the normal procedure. This principle changed in subsequent cases, where the Courts held that while the professional opinion of the medical experts was to be taken into account, they had “to be examined by the court” to see if they “stand up to analysis”.10 In the United States, the Bolam principle did not find easy acceptability because the core belief is that the patient always has a fundamental right to make informed decisions about the procedures affecting his or her own body.11 In a case in South Australia, the deficiencies in the reasons for adopting such an approach were pointed out and the Court stated that the criteria on which negligence should be determined should not be based upon standard medical practice, because such standards may develop to further the best interests of the profession rather than to further the interests of the patients12. Applying this perspective, Lester would possibly be successful in bringing about an action against the hospital itself and the doctor, for (a) providing him delayed treatment and (b) not providing individualized treatment, i.e, using restraints which would have been in his best interests. The assistants may also be able to bring action against the hospital for the delays in arrival of their emergency medical staff, but action against the bank might be unsuccessful for Lester and other assistants. References: Kirby, Michael, 1995. “Patients Rights: why Australian courts have rejected “Bolam”, Journal of Medical Ethics, 21(1):5-8 McK Norrie, Kenneth, 1985. “Medical negligence: who sets the standard?”, Journal of Medical Ethics, 11(3): 135-137 Teff, Harvey, 1998. “The standard of care in medical negligence – moving on from Bolam?” Oxford Journal of Legal Studies, 18(3): 473-484 Cases cited: Anns v Merton London (1978) AC 728 Bolam v Friern Hospital Management Committee (1957) 1 WLR 582 Caparo Industries plc v Dickman and others [1990] 2 AC 605 Cavanagh v Ulster Weaving Co Ltd (1960) AC 145 Donaghue v Stevenson (1932) AC 562 Knight v the Home Office (1990) 3All ER 237 Loveday v Renton (1990) 1 Med LR 117 Murphy v Brentwood DC (1991) 1 AC 398 HL Read More