Breach of Duty of Care

Chris bought a balti pie during half time at a match between the Wanderers and United football teams. The pie was in a sealed opaque foil package with the manufacturer’s name “Pukiepies” marked on the packaging. Chris opened the package and began eating the pie. On his third mouthful of the pie he bit down on something hard which also tasted revolting.

Chris instantly spat the mouthful back onto the package and discovered that the hard object was a decomposing finger. Chris later felt dizzy and suffered very bad stomach ache and went to the Accident and Emergency Department at Witherington Hospital. At the hospital, gastroenteritis caused by the poison in the decomposing finger was swiftly diagnosed and Chris’s stomach was pumped. A junior doctor, Dr Hugh Sless, then injected Chris with antibiotics to prevent infection.

Dr Sless did not ask Chris whether he was allergic to antibiotics before injecting him. In fact Chris did have an allergy to antibiotics and as a result suffered a very bad reaction. Chris’s wife, Karen, had been informed that he was in the hospital and, since she could not drive, her daughter Sally offered to drive Karen to the hospital. Karen knew that Sally had been drinking alcohol and was over the legal limit, but she was desperate to get to the hospital and so she accepted the lift anyway. On the way to the hospital, Sally was driving too fast, lost control of the vehicle and veered onto the wrong side of the road and crashed into a lamppost.

Karen suffered injury to her back in the crash and Sally was shaken up but otherwise not hurt. Karen and Sally were then taken to the Accident and Emergency Department at Witherington Hospital. An orthopaedic specialist, Dr Bones, examined Karen’s back briefly and declared that she had sustained no serious injury in the crash. In fact Karen had severed vertebrae and within one week she became permanently paralysed from the waist down. Doctors have since diagnosed that if her back had been x-rayed and she had been treated immediately she would have had a 50% chance of recovering. Sally visited her father in the hospital after she left the Accident and Emergency Department.

The doctor explained to Sally that Chris had suffered breathing difficulties from the allergic reaction to the antibiotics, as a result of which he had been starved of oxygen and was now permanently brain damaged. Sally was shocked to see her father in this state and now suffers from post traumatic stress disorder. Explain and apply the principles of duty of care, breach of duty, causation, and any possible defences in relation to the following potential negligence claims: A claim by Chris against “Pukiepies” for personal injury (ignore any statutory provisions relating to defective products).

A claim by Chris against Witherington Hospital for his brain damage (assume that the hospital is vicariously liable for Dr Sless). A claim by Karen against Sally for personal injury. A claim by Karen against Witherington Hospital for her permanent paralysis (assume that the hospital is vicariously liable for Dr Bones). A claim by Sally against Witherington Hospital for her PTSD.

A CLAIM BY CHRIS AGAINST PUKIEPIES

Chris may have a contractual claim as well as a tort claim under the principle in Donoghue v. Stevenson(1) where Lord Adkin formulated the “neighbour principle”. The type of the packaging used for packing the pie means that the supplier intended that the pie reaches the consumer in the same state as it left the manufacturer without any intermediate interference by any retailer. Lord Adkin’s principle contained two elements namely, the element of “reasonable foreseeability” and secondly, the test of “neighbourhood” principle where the claimant is “closely and directly” effected by the defendant’s conduct.

According to the facts, Chris had consumed a pie that was wrapped in an opaque packaging so there was no likelihood of intermediately interference by the retailer. Secondly, it must have been foreseeable that failure of the supplier’s conduct to check the pies prior to dispatch could have eliminated the risk of injury to a consumer. Finally, the consumer was directly and closely affected by the defendant’s conduct. In applying these principles, the supplier does owe a duty of care to Chris. Once the duty of care has been established, Chris must substantiate that there was a breach by the defendant, which caused the injury to Chris.

With regards to the causation, the facts are ambiguous as to whether there had been interference with the chain of causation. There may have been interference by the doctor, which in that case the Pukiepies would not be liable for the injuries sustained by Chris. Chris may argue that the manufacturer was in breach of his duty by failing to check the pies prior to dispatch and secondly the breach had resulted in an injury to him. However, causation may be a problem as the rule of novus actus interveniens may prevent the application, thus the defence may challenge that the chain of causation was broken by the new intervening act of Dr Sless.

A CLAIM BY CHRIS AGAINST WITHERINGTON HOSPITAL

The litigant in an action against a Health Authority for medical negligence must establish that the medical professional has been negligent and the employer is vicariously liable. The question is whether the medical professional owes a duty of care to the claimant. Lord Brown Wilkinson had confirmed in Wilsher v. Essex Area Health Authority(2) that Health Authorities owe a duty of care to their patients.

The standard of care that is required from professionals because of their professional role is assessed by the professional standard of care. Thus, a question of breach is assessed by applying the “Bolam test” to establish a breach of duty by a professional. In Bolam v. Friern Hospital Management Committee(3) the court formulated a two-stage test. First test focuses on the standard of care required from a professional; the courts agreed that the standard of care required from a professional person is of the reasonable skilled person of that trade or profession in question. In Wilsher it was confirmed that the standard of care required from a professionally qualified defendant is determinable by considering the task s/he has undertaken and the nature of his/her “post”. Thus, it was also added that defendant’s status and rank in the profession is distinct from his/her “post” which means that s/he must show the same standard of care and skill required from other members of the same “post”.

The standard of care required from Dr Sless is the same standard that is required from a person in the same post bearing in mind the nature of his post and the task he had undertaken. However, the court is likely to consider the action taken by the doctor and under what circumstances. There may be emergency circumstances, which posed the doctor to take such an action considering the emergency of the patient condition. Dr Sless failure to make enquiry as to whether Chris was allergic to antibiotics does not automatically render Dr Sless as being in breach of his duty to Chris. It may be that Chris may have been unconscious at the time or that the emergency of the situation meant that Dr Sless was more concerned with giving the patient the right treatment as required at the time without considering the possible adverse affects. The question before the court would be what action would another doctor in similar circumstances would take on the basis of one responsible body of medical opinion Bolitho v. City and Hackney Health Authority(4).

Even if Dr Sless was found to be in breach of his professional standard of duty, Chris would still need to prove causation by substantiating that Dr Sless’s negligence was the cause of Chris’s brain damage. Under the “but for” test a causation can be difficulty to establish particularly where the injury would have happened in any event regardless of the defendant’s breach of duty of care. In Barnett v. Chelsea and Kensington Hospital Management Committee(5) where a doctor was found to be in breach of his duty but not liable as the cause of injury would not have been prevented in any event regardless of doctor’s negligent or not.

The Witherington Hospital may argue that even if Chris had not been given the anaesthetic he would still have suffered from brain damage as a result of consuming the decomposed finger. Barnett case may be applied in proving the action that would have been taken by a group of professional doctors from the same post but it is crucial that this opinion is supported by body of responsible medical opinion.

The novus actus interveniens is interpreted as meaning new intervening act, which in effect breaks the chain of causation and extinguishes the effect of the first incident. The question as to the cause of Chris’ brain damage is whether there was a new intervening act by Dr Sless which has broken the chain of causation transferring the entire blame on the second defendant’s action. However, in professional negligence cases, treatment can only break the chain of causation if the treatment in question is “so grossly negligent as to be in no sense a response to the injury inflicted by the defendant(6)”; same principle was established in Conley v. Strain(7).

A CLAIM BY KAREN AGAINST WITHERINGTON HOSPITAL

As identified previously, health professionals owe a duty of care to their patients. The question as to the liability of the hospital is dependent on whether the doctor was in breach of his duty and whether the cause of the injury is attributable to the act of the defendant (doctor). The case of Barnett v. Chelsea and Kensington Hospital Management Committee(8) which bear similar facts to Karen’s case may be applicable in determining liability. In this case the claimant was admitted to emergency and casualty having drank tea the doctor send him away without treatment, subsequently, he died from arsenic poisoning. In Karen’s case she has been sent away by Dr Bones without being diagnosed that she had a broken back. However, Barnett case can be distinguished on the basis that Karen was not beyond treatment as she had 50 % chance of recovery if she was diagnosed at the time she was taken to hospital. There may be culpability by the hospital for negligence but they will only contribute for the 50% of the damages.

Furthermore, the hospital may argue that her injury was caused by the car accident and the action of the doctor has not broken the chain of causation unless the claimant can prove that the doctor’s act was grossly negligent to amount to a new intervenient act Conley v. Strain(9). Bolam test may also apply in the circumstances and expert evidence as to the action that would have been taken by a group of professionals from the same filed. Furthermore, there may be issue of contributory negligence by Karen for taking a risk by accepting a lift from her intoxicated daughter. In effect, if the hospital is found liable, contributory negligence may reduce the liability of the hospital to 25-30% but the court is likely to consider, the existence of mitigating factors such as that Karen needed the lift to attend to her husband in hospital.

A CLAIM BY SALLY AGAINST WITHERINGTON HOSPITAL

There are number of cases on psychiatric harm, Alcock v. Chief Constable of South Yorkshire(10) indicating that psychiatric illness cases are difficult to establish as there is a difficulty in proving duty of care owed by the defendant. Sally is able to prove that she suffers from psychiatric illness as she has a posttraumatic stress disorder, which is considered as being psychiatric illness White v. Chief Constable of South Yourkshire(11).

In this case, Sally is likely to be considered as being secondary victim as she has a close relationship with the injured person (her father). However, the facts are ambiguous as to who informed Sally that her father’s condition was serious. This may be used as a defence on the basis that she was informed of the situation prior to seeing her father. In cases concerning secondary victims, it has been decided that foreseeability of psychiatric illness must be established by the claimant. In other words, no duty of care is owed to avoid causing psychiatric harm to people who are “peculiarly susceptible” to such harm, because they have a nervous or emotional disposition; thus the claimant’s application is unlikely to succeed Bourhill v. Young(12).

In this case, the hospital is likely to contend that they had no duty to avoid psychiatric harm to Sally, firstly because the doctor was not aware that she would suffer such a harm and secondly that the doctor had informed Sally of her father’s situation before she had visited her father. Furthermore, the hospital may contest that Sally was acquainted about her father’s physical condition but she had decided to visit him without giving due consideration to the consequences. At this point, the doctors were at no duty to prevent her from seeing her father. The hospital is likely to rely on Bourhill case. Finally, the hospital may claim that Sally had contributed to her own psychiatric illness. Hospital will use the defence of contributory negligence to reduce the level of damages if found liable.

FOOTNOTES

1 [1932] AC 562

2 [1987] Q.B 730, CA [1998]AC 1074, HL

3 [1957] 1 WLR 582

4 [1998] AC 232

5 [1969] 1 QB 428

6 Clerk & Lindsell on Torts 1995 17th Edt

7 [1988] IR 628

8 [1969] 1 QB 428

9 [1988] IR 628

10 [1992] 1 AC 310

11 [1999] 2 AC 455

12 [1943] AC 92 at 117.

BIBLIOGRAPHY

• Clerk & Lindsell on Torts 1995 17th Edt
• Giliker, P & Beckwith, S “Tort” 2000 Sweet and Maxwell
• Lunney, M & Oliphant K “Tort Law: Text and Materials” 2nd Edt 2003 OUP