Establishing The Breach Of Duty Of Care In Tort Law

Tort law is Civil Law and applies when contract cannot be reputable. The purpose of Civil Law is not to penalise people, but to recompense them for the wrongdoing of the defendant. The Breach of Duty of Care falls directly under the Tort of Negligence, Tort of Negligence came about due to loss or damage that happened because of the wrongdoing caused by the defendant. In Tort law there are no contracts so the plaintiff cannot sue the defendant before the defendant can be found liable, there are 3 things that needs to be recognised and these are Duty Owed, Duty Breached and that the breach caused the damaged this also known as Causation.

The aim of this essay will be looking at the factors that must be established when proving a breach of duty of care in Tort Law.

Tort Law was first recognised by the Norman French law (1066) and was introduced at the Norman conquest. It was brought in to settle cases, where no contract exists between two parties and to protect individuals from the negligence of others. Tort law can cover a few areas: Negligence, Trespass, Assault and Battery and wrongful imprisonment. Similar areas are covered in Criminal law, the difference is that Tort Law seeks to compensate the individuals for wrong done to them whereas Criminal law will actively seek to punish, the individual might come to harm ,but there is no legal contract in place (Brendan Greene 2015) Course note Tort law).Private healthcare would be different as there is payment and consideration involved while in national healthcare there isn’t .In order for negligence in healthcare to be recognised three things have to be present : Duty is owed to the plaintiff ,the defendant breached the duty and that the harm caused was directly because of the breach owed. Duty owed, and Duty breached must be present for the case to go through, however Harm/Causation is judged on balance of probabilities. So, whether harm was caused by the breach, or if there are any other factors that could have added or caused the harm itself.

One of the most important cases in Tort Law is the case of Donoghue v Stevenson (1932). Where the precedent was set on the neighbour law. Mrs Donoghue was brought a bottle of ginger beer by a friend in a café which contained the remains of a decomposing snail. As a result, she suffered gastro-enteritis, legally Mrs Donoghue could not sue the café owner, through contract law as she did not purchase the ginger beer. Her friend could not sue as he suffered no injury (Martin ,1999 p77), Donoghue’s only other option was to sue the manufacturer for negligence under Tort law. The lower courts found it quite difficult to establish whether Stevenson could be classed as a neighbour as he was miles away. On appeal to the house of Lords they decided that one party should be able to sue another who caused them loss even If there is no contract, they then went on to state this with a new principle which stated that “everyone has a duty of care to their neighbour’’. The judge governing had to resolve who a neighbour was and the proximity between the neighbours for them to establish if Duty was owed to Mrs Donoghue, the case reached the house of lords which was then the highest court of Appeals on the primary issue of whether any duty of care was owed by the manufacturer (Stevenson) to the consumer in this case Mrs Donoghue (Johnson 1995, p20). Lord Atkins gave the leading judgement that there did not need to directly be close to be classed as neighbours but have some form of contract between them. The courts came to the decision that duty was owed by Stevenson.

Another case which was a non-health case which developed the idea on proximity when establishing duty owed is the case of Bourhill v Young (1943). In this case, Young was riding his motorcycle neglectfully which caused an accident which resulted in him dying. Mrs Bourhill who was pregnant at the time saw the result of the accident and went on to have stillborn and claimed it was a result of seeing the accident, Bourhill’s lawyers tried to argue that Young owed her a duty of care because of his neglectful driving but the courts decided that Young did not as there was ‘insufficient proximity’ .Proximity means that both parties must be sufficiently close so it is ‘reasonably foreseeable’, that one’s parties’ negligence would cause loss or damage to the other. Which in Bourhill case Young was not close to her therefore he did not owe Bourhill duty of care. However, he did owe a duty of care to the other road users. There are many different factors that can add to a stillborn death of a baby and on the balance of probabilities it would not have been easy to weigh up the different causes.

In the NHS (National Health Service) Tort Law is very significant because there is no contract between healthcare professionals and the patients. In negligence if a case was brought to a healthcare professional, the NHS will assume Vicarious Liability for their employees as they are liable for their work, unless there is suggestion that they did not manage themselves in a way that was Reasonable in their job description. This is shown in the case of Bolam v Friern Management Committee (1957) which is a case between a doctor and his patient.

The Bolam v Friern Management Committee (1957) is one of the most important cases that is still used till this very day when looking at negligence cases. Bolam, a psychiatric patient sued his doctor for negligence due to him not being told of the aftermath of the ECT treatment. As a result of this he suffered a seizure and broke his pelvis. He sued and claimed that the failure to gain informed consent was a breach of duty owed that the harm (the broken pelvis) was a direct result of the breach of duty of care. The doctor did not hold him down or administer any drugs, Bolam believed the doctor should have. The judge ruling asked other skilled professionals if they would have done the same or anything different, they said no as it was common practice and ruled in the favour of the hospital as it did not constitute as a negligent act. The judge also stated that ‘a medical professional would only be judged negligent if their behaviour fell below that of ordinary professional’. The statement made by the judge was set at a precedent when looking at the practice of medical professionals. This is now called the ‘Bolam Test’, the Bolam case highlighted that the expected skill was not that of the highest expert skill, but that of an ordinary competent expert. This finding has been backed up in many other cases like in the case of Whitehouse v Jordon (1981). One case that made changes to the Bolam test is the case of Maynard v West Midlands RHA (1984).

The Maynard v West Midlands RHA (1984) helped establish the breach of duty. The doctors made a judgement to test Maynard for Hodgkin’s disease which was potentially lethal at the time. Maynard sued the doctors claiming the test was not necessary and caused him to have damage to his laryngeal nerves. The trial judge in the lower courts found in favour of the plaintiff (Maynard). This however was reversed at the court of Appeal and confirmed in the House of Lords. The Bolam test was used with two sets of skilled professionals who had different views, some were in favour of Maynard, others were not, the judge could not say which experts were more expert as he was not a skilled professional. Maynard lost his case as no breach could be found.

In Sidaway v Bethlem Royal Hospital (1985) case the issue of Informed Consent was tested. A doctor informed Sidaway that in doing the operation there was a minor risk (less than 1%), he did not however fully explain the consequences of this in terms of the patient’s health. Through no fault of the doctor the operation went wrong and as a result, Sidaway was left disabled because of nerve damage. Sidaway sued and lost on the fact that fully informed consent is not required under English law. The judge said if the possible outcome is less than 1% then the doctors or any other healthcare professionals cannot be liable for breach of duty, this was added to the Bolam test and is known as the 1% test.

A negligence case cannot be promising on the breach of duty of care alone. For the case to be found successful the breach must be a direct cause of the loss or injury to the plaintiff. In some cases, Res Ipsa Loquitor applies when needing to form negligence. It means that ‘the thing speaks for itself’ (Matthews 2015) so loss or injury is obviously a result of the breach of duty. Cassidy v Ministry of Health (1951). Cassidy went into hospital to be treated for two stiff fingers and came out worse. He sued for negligence because the doctors could not explain why he ended up worse than before, in this occurrence the plaintiff claimed Res Ipsa Loquitor and the Ministry of Health was found guilty, this was based on the balance of probabilities.

Bolitho v City and Hackney Health Authority (1998), Bolitho a two-year-old child underwent an operation to correct a blockage of the arteries. This occurred in December, in January 1984 the child was readmitted back to the hospital, a doctor was called twice but failed to show up. Bolitho died and his parents sued the Hackney Health Authority for negligence. Healthcare duty is always owed, and the doctor failed in his duty by not attending, the hospital admitted negligence in terms of the failure of the doctor to attend,

The defence of the doctor was that even if he was able to attend, he still would not have intubated the child, because of his age and his previous condition and ensuing brain damage would not have been avoided. The judge applied the Bolam test, other health professionals said they would have intubated others said they would not. A precedent was set by the House of Lords on appeal that stated that evidence given by the doctor must be Responsible, Reasonable and Respectable. If Bolitho could prove that intubation was the necessary course of action, then negligence could be proven, despite counter opinion. In these circumstances the Lords were satisfied that the doctor would not have intubated the child and it would not be deemed as negligent. Consequently, the lords upheld the previous judgements finding in favour of the defendants. This case has been undermining of the Bolam test.

The Wilsher v Essex (1998) In this case a premature baby developed blindness because of too much oxygen given by the doctor. The Court of appeal found that the defendant Health Authorities conduct was the most likely cause and agreed with the plaintiff. However, the house of lords overturned this decision, they argued on the balance of probabilities, there were four other explanations which could be ruled out, it could be argued also that causation was not proven.

In showing negligence several possibilities, need be considered in the first instance the ‘thin skull’ rule applies. That is that even if the claimant suffers from some form of disorder which is known to the doctor the act of ‘not knowing‘ is a defence.

In the case of Carver v Hammersmith & Queen Charlotte’s Special HA (2000). The doctors had failed to warn a mother that a test for Down Syndrome, had a one in three failure rates. The Health Authority was judged negligent for failing to fully inform the mother of its risks, the judge, judged in favour of Carver, using the ‘reasonable, responsible and respectable concept the judge maintained that the health authority breached the duty and did not act in a way that reasonable for a doctor.

In finishing we can see that the purpose of Tort Law is to compensate those who have suffered, injury, damage and loss due to the negligence of another individual. Within the health care setting it looks to deal with the wrongdoing, where there is no contract. Within the cases talked over it is seen that to show a breach of duty, duty owed must be established. For a breach to be successful, the breach must be a direct cause on the balance of probabilities for the damage sustained by the plaintiff. In conclusion case law evidence, the fact that it is difficult to establish these factors given the difficult nature of the health care profession.

Reference list

1. Brendan Greene (2015): Course Note Tort Law; Hodder
2. De Cruz,P. (2005) Nutshells: Medical law London Sweet and Marshall
3. Howarth,D , Matthews M ,Morgan J ,O’Sullivan J ,Tofaris S (2015) Tort Law, Cases & Materials: Oxford ,Bloomsbury
4. Johnson & Cooper, S. (1995): A Level Law Blackstone: London
5. Martin,J.&Gibbins ,M (1999) A-Z of Law. Hodder: London