Rights and Obligations in the Tort of Negligence

A) Rights and Obligations in the Tort of Negligence.

In order for a claim in negligence to succeed, four elements have to be satisfied:

• • Duty – does the law recognise that a duty of care is owed?

• • Breach – has the defendant failed to live up to the standard of care required?

• • Damage – has the claimant suffered injury or loss?

• • Causation – is the defendant wholly or partly responsible for bringing about such loss or injury?

The principle imposing liability in tort for such careless behaviour was established in the leading case of Donoghue v Stevenson[1] and remains valid today subject to inevitable refinements and modifications.

Gillian owes a duty of care to her clients. She was in dereliction of this duty by allowing George (in breach of an express prohibition) to drive Marcia. Marcia has suffered demonstrable harm in the form of the immediate assault and psychological aftermath. However, it is doubtful that the necessary causation exists. Even though it can be argued that were it not for Gillian’s actions, Marcia would not have suffered harm, the damage to Marcia can be said to be too remote in that it was not a foreseeable consequence of her actions. In The Wagon Mound (No.1)[2], Viscount Simonds held that “the essential factor in determining liability is whether the damage is of such a kind that the reasonable man should have foreseen”. If George were incapable of driving and physical injury resulted, this might have been reasonably foreseeable but a sexual assault is not a reasonably foreseeable consequence of breaching the prohibition of non-employees from driving. In any event, the assault by George is a novus actus interveniens – an action unrelated to Gillian’s negligence breaking the requisite chain of causation.

It follows therefore that the taxi firm will not be held liable: in addition to the issue of remoteness discussed above, while the firm could be held vicariously liable for the acts of employees such as Gillian, George was not an employee. Although, if he were, even so extreme an act as a sexual assault might be regarded as “in the course of his employment” (Lister v Hesley Hall[3]). The firm is probably further protected by the fact that although in accordance with the principles of Lister (warden of a school boarding house sexually abusing pupils – employers held liable) they could be held responsible for such an attack were it carried out by an employee, by adopting a policy of female-only employees and expressly forbidding the delegation of driving, they might be regarded as having taken reasonable steps to care for the safety of Marcia in this respect.

George will however be held liable for the psychological damage to Marcia as well as any physical injury. There has been considerable reluctance on the part of the courts to allow recovery in respect of purely psychiatric illness on the grounds of the difficulties surrounding foreseeability of such damage and the pubic policy reluctance to “open the floodgates” to such claims. However, in Page v Smith[4] it had been argued in the Court of Appeal that claims should succeed where the risk of psychiatric illness was foreseeable in the case of a person of reasonable fortitude. This approach was upheld by Lord Lloyd who stated that the “floodgates” argument in respect of encouraging bogus claims was overcome by the control mechanisms imposed by the law: proximity between defendant and victim and the requirement that a defendant should have foreseen “injury by shock to a person of normal fortitude or ordinary phlegm”. Thus there should be no doubt as to George’s liability to Marcia not only in respect of the assault but also in respect of her mental illness since such a consequence can be anticipated even in persons of normal fortitude.

The assault by Marcia upon Paul clearly gives rise to liability on the part of Marcia in the torts of assault and battery. However, the question arises as to whether there is any responsibility on the part of Marcia’s Consultant Psychiatrist and the hospital authorities which employed him. Clearly, if Marcia were to suffer damage as a result of negligent medical treatment, there would be primary liability to her on the part of the practitioner and vicarious liability on the part of his employers. However, can there be liability to Paul who was a third party and not the patient? The authors of Markesinis and Deakin’s Tort Law[5] concede that in America such actions have been successful but comment:

“In English law, actions of this nature are fraught with difficulties because they involve potential liability for an omission (to warn or prevent conduct) and the voluntary act of an intermediary.”

They argue that the suggestion that a doctor can never owe a duty of care to someone who is not his patient is “untenable”. It was held in Sion v Hampstead HA[6] that a doctor can in principle be held liable to the relatives of a patient if the particular requirements of proximity and public policy (discussed above) can be satisfied. Each such case will turn upon its own factors and there must be some doubt that the Consultant or his employers would be held liable to Paul in this case. Again the issue of foresee ability will have to be examined. It is said that Marcia’s condition left her with an aversion to male drivers. This much would have been known to the Consultant. Indeed, the “strong recommendation” of his employers was that she was not to be transported by male drivers. If, therefore, as a result of the Consultant disregarding this advice, harm were suffered by Marcia in the form of an exacerbation of her illness, it is highly probable that he would be held liable to her. (It should be noted in this context, however, that the Consultant may seek to exonerate himself by arguing that the “therapy” of exposure to male drivers was justified by reference to the accepted standards of his profession and the accepted state of medical knowledge prevailing at the time.) However, even if it were established that his actions in placing Marcia with Paul were negligent, to what extent does his duty extend to Paul?

In Goodwill v BPAS[7], the defendant carried out a vasectomy on a patient and informed him that the operation had been a success. Some years later he met the claimant with whom he took no precautions after telling her of his operation. The vasectomy had in fact failed and she became pregnant. Her claim against the doctor failed on the ground that the doctor did not know and could not have known of the existence of the claimant and therefore he owed no duty toward her because as a potential sexual partner of the patient she belonged to “an indeterminately large class of females who might have sex with [the patient] during his lifetime”. Interestingly, Peter Gibson LJ observed that the situation might be different if the claimant had been the patient’s partner at the time of the operation and had been involved in the consultations. This would have given rise to a “special relationship” with her and a consequent duty of care. It is arguable therefore that in this case such a relationship might be established with Paul: if Marcia’s condition were such that there might be a perceived risk of harm to men with whom she might come into contact, this would probably represent too large a class but the Consultant here was intentionally exposing Marcia to a member of a specific class (i.e. male drivers) but again it could be questioned whether even this class is too wide. If it were taken to be all male drivers during the rest of Marcia’s lifetime it would probably fall into the same category as potential sexual partners in Goodwill whereas Paul might argue that his existence might have been ascertained as a result of the hospital transport arrangements. Some support for this view may be found in Palmer v Tees HA[8] in which the claimant was the mother of a 4 year-old girl who was abducted, sexually abused and murdered by a dangerous psychiatric patient who had been in the care of the defendant. The suffered psychiatric damage as a result. Her claim failed for the lack of “proximity” between the defendant and the victim with the judge at first instance observing that it was not sufficient to show that the victim was at risk merely as a result of being a young girl in the light of the propensities of a dangerous patient. However, it was held that even if the necessary proximity had existed it would not have been “fair, just and reasonable” to impose a duty of care on the defendant: public policy considerations were cited such as the undesirability of encouraging doctors to engage in defensive medicine, the “floodgates” argument in respect of such claims and the fact the claimant retained a remedy with the Criminal Injuries Compensation Board. Paul’s claim is therefore finely balanced but would probably fail.

The “Standard Practice” defence allows too many careless professionals to avoid liability.

In the tort of negligence, professional persons are not judged according to the proverbial standard expected by “the man on the Clapham omnibus”. Instead the Bolam[9] test is applied. In that case the claimant suffered a fractured pelvis while undergoing electro-convulsive therapy. It was alleged that the doctor had departed from the practice of some fellow professionals at the time by failing to administer a relaxant drug and failing to provide an effective means of restraint. Evidence was received of a variety of contemporary practices in respect of such treatment. Mc Nair J stated that professional persons were governed by the accepted practices of their peers in the application of their particular calling or skill:

“The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is established law that it is sufficient if he exercises the skills of an ordinary competent man exercising that particular art.”

McNair J relied upon the dicta of Lord President Clyde in Hunter v Hanley[10]:

“In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men, nor because he has displayed less skill and knowledge than others would have shown. The true test in establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care.”

Thus there will be careful consideration of the state of professional knowledge and expertise at the time of the injury. In Roe v Ministry of Health[11], the plaintiffs were paralysed when contaminated anaesthetic was administered to them during the course of their operations. The cause of the contamination was undiscoverable cracks in the ampoules supplying the drug. Lord Denning concluded that the anaesthetist did not know at the time of the operation that such cracks might exist and did not therefore guard against such dangers. Significantly, however, he went on to hold that it was not negligent of the anaesthetist not to possess this knowledge at the material time making the famous comment, “We must not look at the 1947 accident with 1954 spectacles”.

Where there is an acknowledged departure from general practice, as in Kralj v McGrath[12] liability will be established (a delivery of a baby by a method that was generally recognised to be inappropriate) but the courts are reluctant to find negligence where there is an apparently genuine divergence of medical opinion. More controversial is a situation in which there is said to have been an “error of judgment”. In Whitehouse v Jordan[13], Lord Denning gave the somewhat disingenuous example of one of his decisions being overturned by the House of Lords, “Is it to be said that I was negligent?”. Upon being duly reversed on this occasion also, Lord Edmund Davies commented that the phrase “error of judgment” was wholly ambiguous:

“…while some such errors may be completely consistent with the due exercise of professional skill, other acts or omissions in the course of exercising clinical judgment may be so glaringly below proper standards as to make a finding of negligence inevitable.”

The Bolam principle was the subject of some controversy in Sidaway v Governors of the Bethlem Royal Hospital[14]. The patient underwent an operation to her spine which involved a 1-2% risk of injury to her spinal cord and consequent paralysis. The surgeon failed to inform her of this risk and she claimed that she would not have undergone the operation had she been aware of it. Lords Bridge and Keith agreed with expert evidence that non-disclosure in such a situation was the accepted practice of a competent body of medical opinion and that this therefore afforded a complete defence to the claim. Nonetheless, Lord Bridge did not accept that the Bolam approach would apply in every instance and that even where there was no medical evidence to the effect that the action fell short of the accepted standard of practice, it would be open to the judge to conclude where the circumstances warranted it that the failure to disclose might be such that no prudent medical practitioner would countenance it. Lord Scarman preferred the perspective of the “reasonable patient” and suggested that the test should not be what information was supplied as a part of accepted procedure but rather what information the patient might reasonably expect to receive.

This notwithstanding, in the vast majority of cases judges are reluctant to “second guess” the views of apparently well-qualified professionals and this has the effect of placing the professional client in a markedly disadvantageous position compared to the standards which he would be entitled to expect in other spheres of activity. Regrettably, it is the esoteric nature of the professions (and perhaps a degree of fellow-feeling on the part of judges!) that allows the defence of “standard practice” to continue to succeed. By way of contrast, courts routinely adjudge liability in negligence arising from road traffic accidents. It would be inconceivable to expect such cases to be characterised by the appearance of expert witnesses such as driving instructors to testify as to whether the actions of a particular driver fell short of the accepted standards of skill on the roads of today. Why should the manner of exercise of the “special skill” of driving be subject to more rigorous interpretation than that of the exercise of abilities in callings which enjoy the mystique and kudos of being classed as one of “the professions”?

Particularly in the medical arena, two public policy considerations are often argued: the scope for self-regulation and the impact upon a profession of a proliferation of claims. The former argument is as spurious as the latter. The existence of disciplinary procedures within professional regulatory bodies such as the General Medical Council and the Law Society ought not to mitigate the responsibilities imposed by the civil law any more than the existence of Road Traffic regulations could be said to reduce the necessity for civil remedies arising out of motor accidents. The “floodgates” argument as applied to claims for professional negligence is self-serving and unconvincing. If so many members of a profession are operating at such low standards of care that allowing claims against them to be actionable would produce an unacceptably high level of litigation, this must surely argue in favour of a tightening of standards and improvement of practice rather than increasing the scope of immunity from such claims.

Outside such traditional professions as medicine and law, standard practice is much less likely to be tolerated as a defence. For example, the expectations upon employers in respect of the health and safety of their workforce are highly regulated. This is perhaps as a result of the frequent underpinning of the principles of negligence by the existence of highly codified statutory duties breach of which constitutes an actionable tort as an alternative to a pleading of negligence. Similarly, in Lloyds Bank v Savory[15] it was held that the defendants remained liable even though they had been able to demonstrate compliance with accepted banking procedures. Lord Edmund Davies in Whitehouse (supra) has already hinted that where the court feels able to make a judgment as to a lack of appropriate competence, it should do so notwithstanding the fact that it is confronted with a battery of “tame” experts prepared to testify as to the prevailing standard practice of the profession.

Therein lies the greatest evil and potential scope for abuse of the standard practice defence. Despite the improvements brought about by the Woolf Reforms with a greater use of jointly instructed experts, there remains a natural tendency for professional witnesses to interpret facts and offer opinions in a manner calculated to support the party instructing them. Thus, it remains possible for a negligent professional to assemble subjective evidence which will argue that he has satisfied the Bolam criteria, namely that while his conduct may not equate to the best practice prevailing in the profession at the time, it still does not fall short of the ordinary competence of a person exercising that particular calling. This has a corrosive effect. The ability – indeed the duty – of the court objectively to measure the actions of the defendant against those which might reasonably be expected of him is diluted when the court abdicates this responsibility in favour of reliance upon the testimony of “tame” experts purporting to possess a superior knowledge of the standards of the profession than that which the court would be capable of determining for itself. The courts are left in a position in which they can only judge the professional defendant to be negligent when his behaviour falls so far short of accepted norms that no reasonable fellow professional can possibly defend it.

Bibliography

Deakin, S., Johnston, A. & Markesinis, B., Markesinis & Deakin’s Tort Law, (5th Ed., 2003)

Kidner, R., Casebook on Torts, (8th Ed., 2004)

All England Direct (Lexis/Nexis)

Halsbury’s Laws Direct (Lexis/Nexis)

Lawtel

Westlaw

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Footnotes

[1] [1932] AC 562.

[2] [1961] AC 388

[3] [2002] 1 AC 215

[4] [1996] 1 AC 155

[5] (5th Ed., 2003), p.320

[6] [1994] 5 Med LR 170

[7] [1996] 2 All ER 161

[8] [1999] Lloyds Rep Med 351

[9] Bolam v Friern Hospital Management Committee [1957] 1 WLR 582

[10] 1955 SLT 213

[11] [1954] QB 66

[12] [1986] 1 All ER 54

[13] [1981] 1 WLR 246

[14] [1985] AC 871

[15] [1933] AC 201