The Duty of Care - Case Study Example

Introduction: The Duty of Care Each of the possible claims in respect of both Crispin and Quentin’s injuries are tortuous and will depend on substantiating the existence of a duty of care in respect of each of the possible defendants. If it is established that a duty of care is owed by each of the defendants to Crispin and Quentin they are also required to prove that there was a breach of that duty of care. A duty of care can exist at both common and statutory law.1 In Donoghue v Stevenson, the doctrine of the ‘duty of care’ was established. Lord Buckmaster stated that ‘the law applicable is the common law…’ 2 This statement does not ignore the existence of a statutory duty of care. It recognizes that common law sets guidelines defining the duty of care and the applicable standards.3 Lord Atkin explained that we are required to take all necessary precautions to prevent injury to our neighbors. ‘Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called to question’.4 In Anns v Merton London Borough Council the test for the duty of care was held to contain three primary functions.5 The first was to determine the remoteness of damage. Secondly, the relationship between the parties must be of sufficient proximity to impose a duty of care. Thirdly, the imposition of a duty of care must be fair and just.6 This three-tier test has been articulated in Caparo Industries Plc. v Dickman.7 Significant indicators of proximity are found in ascertaining the responsibilities of the relevant parties together with reliance issues.8 Both the Hospital and Sun Loungers were in sufficient proximity to Crispin so as to give rise to a duty of care. As an employee of Sun Loungers and a patient of the Hospital, Crispin was in a position where both parties had responsibilities to ensure Crispin’s safety. There was a breach of that duty and Crispin’s estate can file an action against both Sun Loungers and Malheantun. Foreseeability of the specific type of damages is not necessary.9 The fact that Crispin died does not bar an action in negligence.10 If Quentin was living with Crispin at the time of his death he may file suit as Crispin’s dependant for bereavement. 11 Additionally, by virtue of Section 2 of the Limitations Act 1980 the claims will have to be brought within 6 years from the date the cause of action accrued.12 a) The Claim against Sun Loungers in respect of Crispin’s injuries The first claim against Sun Loungers Syndicate is founded on the provisions of the Protection From Harassment Act 1997. Section 3(2) of the 1997 Act provides for complainants to be compensated for harassment while at work. Section 3(2) provides for compensatory damages to victims of harassment in the workplace ‘(among other things) any anxiety caused by the harassment and any financial loss resulting from the harassment’.13 By virtue of the Equal Treatment Directive issued by the European Communities to each of the Member States, discrimination in the workplace on the basis of sexual orientation is unlawful. In an article written by Andrea C. Loux she discusses the directive and its implications for English Employment Law. Referring to the case, Dekker v. Stichting Vormingscentrum voor Jong Volwassesnsen (VJV-Centrum) Plus, [1990] ECR I-3941), Loux notes that the European view is that ‘sex discrimination encompasses discrimination on the basis of gender.’14 Loux maintains that the European Courts have consistently found that the Equal Treatment directive is desirous of cementing the equal treatment of all employees without reference to their gender or sexual orientation. An employee’s characterization should only be determined by his or her actual abilities rather than by his or her gender or sexual orientation.15 The bullying and harassment suffered by Crispin while at work was without question a result of bias against him in respect of his sexual orientation. According to Loux, this kind of bias is forbidden under the terms of the Equal Treatment Directive issued by the European Community. The common law principles requiring that the wrongful act by an employee was committed while conducting an authorized mode of work is departed from in cases of harassment falling under the Protection From Harassment Act 1997. By virtue of the 1997 Act ‘a separate species of vicarious liability’ exist. 16 Lord Hobhouse explained how vicarious liability arises in cases of harassment within the workplace. When an employee commits an act which is authorized by the employer the employer is vicariously liable for any ensuing damages.17 The owner and managing director of Sun Loungers Syndicate was not only aware of Crispin’s verbal and physical harassment, but was said to have encouraged it. This is tantamount to actual authorization. Moreover, Lord Nicholls held that harassment by one employee against another will incur vicarious liability on the part of the employer under the provisions of the Protection From Harassment Act 1997.18 The case of Hudson v Ridge Manufacturing is also important to Crispin’s case. In this case an employer was found to be negligent for the harm suffered by one employee as a result of the practical jokes of another employee.19 b) The Claim against Malheantun Hospital for Crispin’s Death The question for consideration is whether or not the attending doctor at Malheatun Hospital broke the chain of causation and contributed to the injury causing Crispin’s death. If the answer is yes, then Malheatun will be jointly liable together with Sun Loungers Syndicate for Crispin’s death.20 If it is found that Malheatun was partly responsible for Crispin’s death, the damages against Sun Loungers Syndicate will be reduced.21 The applicable test for a finding of medical negligence is a subjective one. The court will assess the doctor on the reasonable skill required of a man in that field.22 Section 1(1) of the Law Reform (Contributory Negligence) Act 1954 provides: ‘Where any person suffers damage as a result partly of his own fault and partly of the fault of any other person or persons ... the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable…’23 This section might operate to reduce the damages recoverable since Crispin delayed medical attention for several hours.24 Lord Asquith said ‘…For I am persuaded that it is still part of the law of this country that two causes may both be necessary preconditions of a particular result - damage to X - yet the one may, if the facts justify that conclusion, be treated as the real, substantial, direct or effective cause, and the other dismissed as at best a causa sine qua non and ignored for purposes of legal liability….’25 The ‘last clear chance rule’ introduced in Davies v. Mann may operate to implicate Malheatan Hospital. In this case the court found that if proximate cause can be attributed to a lack of proper care and/or conduct by the defendant, he will be liable in damages to the plaintiff. This rule would operate notwithstanding the unlawful act of the plaintiff or any other defendant.26 W. Friedman counters that the ‘last opportunity doctrine’ has evolved to be synonymous with ‘responsibility’ for the injury itself.27 At the same time, the fact that the attending physician was junior will not lower the standard of care.28 The doctrine novus actus internieniens is not likely to permit responsibility to shift from Sun Loungers to Malheatun. Lord Neil maintains that ‘…even if the defendant is shown to be careless…the liability will only ensue if there is a causal link between the carelessness and the damage’.29 The pathologist’s findings rules out the casual link argument. The doctor’s misdiagnosis caused Crispin’s death. Although the pathologist found that Crispin might have survived his head injury had he been treated for it upon his initial admission into the hospital, the case of Banett v Kensington Hospital Management Committee gives the hospital a partial escape route. Banett’s case developed a ‘but for’ test which is relevant here. It was held, that the appropriate test for ascertaining the defendant’s liability is a determination of whether or not the resulting harm would not have occurred had it not been for the defendant’s negligence.30 Therefore, had Crispin not been harassed on his job, he would not have required the medical treatment that was linked to his death. Moreover, the fact that Crispin’s heart stopped will not operate to break the chain of causation since the pathologist attributed his death to his head injury. Lord Wilberforce expounded on the ‘but for’ test by saying ‘…first, it is sound principle that where a person has, by breach of duty of care, created a risk, and injury occurs within the area of that risk, the loss should be born by him unless he [the defendant] shows that it had some other cause.’ Secondly, ‘…it is the creator of the risk who, ex hypothesis, must be taken to have foreseen the possibility of damage, who should bear its consequences.’31 In cases where medical negligence is claimed, the defendant has an onerous task. Mr. Justice Gibbs stated that ‘he must be able to demonstrate that the standard of care fell short of that set by the Bolam test.’32 This test requires that a claim in liability for medical negligence will only succeed if the medical professional is found to have acted in a manner not currently accepted by the relevant medical practice.33 The Bolam test was upheld in Bolitho v. City and Hackney Health Authority. 34  Besides, the evidence must show that doctor’s negligence caused the injury or ‘materially contributed to the injury.’35 The pathologist’s findings suggest that the doctor’s negligent diagnosis caused Crispin’s death. This will not permit Malheantun to escape liability altogether. They will share liability with Sun Loungers but perhaps to a lesser extent. c) The Claim against Malheantun Hospital for Quentin’s psychiatric injury For a claim in nervous shock to be successful Quentin will have to demonstrate that he suffered from a recognizable psychiatric condition as a direct result of what he saw in respect of Crispin’s death. Lord Ackner said that nervous shock necessarily involved a ‘sudden appreciation by sight or sound of an horrifying event.’36 In Alcock, 95 persons were crushed to death at a football match in Sheffield. Many of those involved as well as close family members suffered from Post Traumatic Stress Disorder and claimed damages for nervous shock. (These victims, bystanders, family and rescuers are generally secondary victims, whereas primary victims are persons directly involved in the accident)37 Allowing the claims, Alcock also ruled that secondary victims, such as Quentin, who were not close family members as in a parent and a child will be closely examined. This principle was applied in North Glamorgan NHS Trust v Walters.38 The fact that Quentin was tied to Crispin by an amorous relationship might not be sufficient to bring him within the class of eligible secondary victims. He is not excluded automatically. Kay Wheat, Senior Lecturer at Nottingham Trent University is of the opinion that homosexuals in stable relationships should fall within the category of secondary victims.39 In McLaughlin v O’Brian it was held that in order for a claimant to succeed in an action for nervous shock he must prove the following: a) That any reasonable person would have suffered a psychiatry condition witnessing a similar tragedy. b) There is proximity in time and distance to the incident causing the nervous shock. c) That he or she saw or heard the incident complained of or witnessed the immediate aftermath directly.40 In a recent case a husband suffered nervous shock after seeing a scar sustained by his wife following an unnecessary mastectomy. The son also recovered damages for a psychiatric reaction to erroneous new that his mother had cancer. These results were held to be part of the aftermath and the victims were treated as secondary victims.41 Quentin might also be considered a rescuer in this particular case. If so, he might overcome the barrier that his relationship might pose. The fact that Quentin took Crispin to the hospital takes him outside of the range of ‘bystander’. The difficulty facing Quentin here is that he took Crispin to the hospital the day before he succumbed to his head injury. However it can be argued that the trip to the hospital the following day formed a necessary part of the rescue attempt. In McFarlene v EE Caledonia (1994) a man who helped move blankets at the scene of the Piper Alfa oil rig fire was found to be a bystander.42 The facts of this case can be distinguished from the facts in Crispin’s case since Quentin was directly involved in securing medical treatment for Crispin. In Bourhill v Young a pregnant woman who witnessed a tragic accident, losing her baby as a result was denied compensation on the grounds that she was not related to the primary victim.43 Again Quentin’s case is distinguishable from this case. The accident witnessed by the pregnant woman involved strangers. Quentin’s greatest chance for success in his claim against either of the possible defendants is supported by the ruling in Attia v British Gas. The plaintiff’s house was set afire owing to the admitted negligence of British Gas. The defendant failed to claim that she was afraid for the life or safety of anyone. This omission raised the question of whether or not she could claim nervous shock since neither she nor anyone close to her were injured in the flames. The court found however, that British Gas was under an existing and continuous duty not to start a fire anyway.44 The facts of Attia’s case can be distinguished from Quentin’s case, however. The victim suffered nervous shock as a direct result of damages to her own property. Moreover, British Gas was a public authority under a statutory duty of care. Quentin’s case for nervous shock is a strong one. The arguments that have been raised merely demonstrate some of the possible defences available on the facts. Even so, Quentin’s case will in all likelihood defeat those arguments. He has the requisite ‘immediate aftermath’ condition as he witnessed his partner’s death. Moreover, he suffered from the requisite psychiatric condition when he sustained Post Traumatic Stress Disorder. Conclusion The starting point in respect of liability for possible claims on behalf of both Crispin and Quentin is the establishing of the existence of a statutory duty of care and/or a duty of care at common law. This is followed by proving a breach of that duty by the possible defendants. As argued, liability against Sun Loungers is not going to be difficult to establish as both statutory and common law precedents impose a somewhat strict responsibility on employers to safeguard the safety and well being of employees. Employers are afforded very little wriggle room. The precedents are not so strict in the imposition of liability against public authorities and the medical profession. Therefore the chance of success against the hospital as already discussed, will improve if they sue them together with Sun Loungers. Bibliography Alcock v Chief Constable of the South Yorkshire Police (1991) 4 ALL ER 907 (HL) Anns v Merton London Borough Council (1978) AC 728 (HL) Attia v British Gas [1988] QB 304 (CA) Barnett v Kensington hospital management committee [1969] 1 QB 428 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. (CA) Bolitho v. City and Hackney Health Authority [1998] AC 1074 (HL) Bourhill v Young [1943] AC 92 (CA) Caparo Industries Plc. v Dickman [1990] 1 All ER 568 Carty V London Borough of Croydon [2005]1 WLR 2312 (HL) Civil Liability (Contributions) Act 1978. Davies v. Mann (1842)152 Eng. Rep. 588 Donoghue v Stevenson [1932] AC 562 (HL) Fairchild v Glenhaven Funeral Services Ltd [2002] 1 WLR 1052 (HL) Fatal Accidents Act 1976 Friedman, W. Contributory Negligence. Last Opportunity. Modern Law Review, Vol. 1, No. 4 (Mar., 1938), pp. 318-321 Froggatt v Chesterfield and North Derbyshire Royal Hospital NHD Trust [2002] All ER 218 (CA) Froom v Butcher [1976] 286 (CA) Hudson v Ridge Manufacturing [1957] 2 All ER 229 (HL) Jayes v IMI (Kynoch) Ltd (1985) (HL) http://www.publications.parliament.uk/pa/ld199697/ldhansrd/pdvn/lds05/text/51220-34.htm Viewed December 7, 2006 Jones v. Livox Quarries Ltd. [1952] 2 Q.B. 608 Law Reform (Contributory Negligence) Act 1954 Limitations Act 1980 Lister v Hesley Hall Ltd [2001] 1 AC 215 UKHL 22 http://www.parliament.the-stationery-office.co.uk/pa/ld200001/ldjudgmt/jd010503/lister-1.htm Viewed November 17, 2006 Loux, Andrea C Is He Our Sister? Sex, Gender, and Transsexuals Under European Law Web Journal of Current Legal Issues http://www.workplacebullying.co.uk/sister.html Viewed November 30, 2006 Majrowski v. Guys and St. Thomas NHS Trust [2006] UKHL 34 http://www.bailii.org/uk/cases/UKHL/2006/34.html Viewed November 17, 2006 Markesinis, B.S./ Deakin, S.F. The Random Element of their Lordships Infallible Judgement: An Economic and Comparative Analysis of the Tort of Negligence from Anns to Murphy, (1992) 55 MLR 619 McFarlene v EE Caledonia [1994]1 ALL ER 1 (CA) McLaughlin v O’Brian [1983] AC 410. (HL) Murphy v Brentwood District Council [1991] 1 AC 398 [HL] Nettleship v Weston [1971] 2 QB 691 (CA) North Glamorgan NHS Trust v Walters [2003] Lloyds Rep Med 49 (HL) Overseas Tankship (UK) Ltd. v Morts Dock & Engineering Co. Ltd. (The Wagon Mound 1) [1961] A.C. 388 (PC) Rogers, W.V.H. Winfield & Jolowicz on Tort. (2002) Sweet and Maxwell Sinclair, Adele. Harassment, Discrimination in Interpretation. 1 WebJCL1 1998 http://www.neiladdison.pwp.blueyonder.co.uk/work.htm Viewed November 17, 2006 Stapley v Gypsum Mines [1953] 2 ALL ER 478 (HL) Wheat, Kay. Law Commission Consultation Paper No 137 - Liability for Psychiatric Illness. [1992}2 Web JCLI http://webjcli.ncl.ac.uk/articles2/wheat2.html#affection Viewed December 9, 2006 Wilsher v Essex Area Health Authority [1988] AC 1074, [1988] 2 WLR 557 (HL) Table of Cases Alcock v Chief Constable of the South Yorkshire Police (1991) 4 ALL ER 907 (HL) Anns v Merton London Borough Council (1978) AC 728 (HL) Attia v British Gas [1988] QB 304 (CA) Barnett v Kensington hospital management committee [1969] 1 QB 428 Bolam v Friern Hospital Management Committee [1957] 1 WLR 582. (CA) Bolitho v. City and Hackney Health Authority [1998] AC 1074 (HL) Bourhill v Young [1943] AC 92 (CA) Caparo Industries Plc. v Dickman [1990] 1 All ER 568 (HL) Carty V London Borough of Croydon [2005]1 WLR 2312 (HL) Civil Liability (Contributions) Act 1978. Davies v. Mann (1842)152 Eng. Rep. 588 Donoghue v Stevenson [1932] AC 562 (HL) Fairchild v Glenhaven Funeral Services Ltd [2002] 1 WLR 1052 (HL) Fatal Accidents Act 1976 Froggatt v Chesterfield and North Derbyshire Royal Hospital NHD Trust [2002] All ER 218 (CA) Froom v Butcher [1976] 286 (CA) Jayes v IMI (Kynoch) Ltd (1985) (HL) http://www.publications.parliament.uk/pa/ld199697/ldhansrd/pdvn/lds05/text/51220-34.htm Viewed December 7, 2006 Jones v. Livox Quarries Ltd. [1952] 2 Q.B. 608 Hudson v Ridge Manufacturing [1957] 2 All ER 229 (HL) Lister v Hesley Hall Ltd [2001] 1 AC 215 UKHL 22 http://www.parliament.the-stationery-office.co.uk/pa/ld200001/ldjudgmt/jd010503/lister-1.htm Viewed November 17, 2006 Majrowski v. Guys and St. Thomas NHS Trust [2006] UKHL 34 http://www.bailii.org/uk/cases/UKHL/2006/34.html Viewed November 17, 2006 McFarlene v EE Caledonia [1994]1 ALL ER 1 (CA) McLaughlin v O’Brian [1983] AC 410. (HL) Murphy v Brentwood District Council [1991] 1 AC 398 [HL] Nettleship v Weston [1971] 2 QB 691 (CA) North Glamorgan NHS Trust v Walters [2003] Lloyds Rep Med 49 (HL) Overseas Tankship (UK) Ltd. v Morts Dock & Engineering Co. Ltd. (The Wagon Mound 1) [1961] A.C. 388 (PC) Stapley v Gypsum Mines [1953] 2 ALL ER 478 (HL) Table of Statutes Civil Liability (Contributions) Act 1978. Fatal Accidents Act 1976 Law Reform (Contributory Negligence) Act 1954 Limitations Act 1980 Protection From Harassment Act 1997 Read More