A claimant who wishes to sue in negligence must have fulfilledfour elements to be successful. The defendant must owe a duty of care to the claimant,there must be a breach of that duty, there is consequently actionable damage whichwas not too remote. Using the problem question, Hettie will be advised that sheis able to claim or negligence against Andy’s conduct for property damage. Andywill also be advised that his negligence claims Dr Salt falling under theexpected standard of care of a medical professional.
The question is mainlyconcerned with how the breach of duty has occured and whether the defendant canbe held fully liable for the claimant’s loss. The issues raised in the questionare primarily concerned with the duty of care an inexperienced apprentice holdswhen carrying out work and the standard of care that is expected from a doctorto their patient. Hettie v Andy Firstly, it must be shown that the defendant Andy, owes aduty of care to Hettie in order to determine the tort of negligence. In SpartanSteel & Alloys Ltd v Martin & Co (Contractors) Ltd1,it was established that the defendant owed the plaintiffs a duty not to damage thecable which supplied power to the plaintiff’s factory. Using this, it can beaccepted that Andy owed Hettie a duty of care not to damage her property thus, thereis no need to apply the Caparo test. Furthermore, as a general rule, the conduct of the defendantmust be judged by the standard of the hypothetical “reasonable person”, inorder for there to be a breach of duty.
Andy is an inexperienced apprentice tryingto qualify as a plumber hence raising the issue of whether he should be held tothe same standard as a fully qualified plumber. In Nettleship v Weston2,it is illustrated that one’s conduct should not be judged by the standard oflearner but by the standard of a reasonably competent and experienced professional.Yet, it was held in Wells v Cooper3 thatthe defendant had discharged the duty of care has he had not fallen below thestandard of care expected of him as a reasonably competent amateur carpenter.Andy, however, attempted to remove radiators and clean them, based on what hethought he knew from the week before. Therefore, the defendant has attempted ajob which exceeds his capabilities and would usually require professional work. Although, Andy has seen Drew deal with asimilar problem, Andy suggests that he knows how to carry out the work thus, hedoes not fulfil the proper standard of care and is in breach of his duty. It must also be proved that the breach of duty has caused actionabledamage to Hettie.
Using Spartan Steel & Alloys Ltd v Martin & Co(Contractors) Ltd, which illustrates the physical damage to property, due tothe damage to the melt that was in the furnace at the time of the power cut. InHettie’s case, it can be established that property damage to the lounge isrecoverable and thus, can be compensated. Additionally, in order to determine causation, it must beproven that it was the defendant’s action that caused that plaintiff’s loss. Thiscan be achieved by applying the ‘but for’ test by asking whether if it was notfor Andy’s conduct, would Hettie’s loss still have occurred in any event? Inthis case, if Andy had not attempted to remove the radiator and clean them,there would not have been damage to Hettie’s property. It must also be proventhat the damage was not too remote. The decision in The Wagon Mound (No1)4established that if a reasonable person would not have foreseen the damage, itcannot be recovered.
This test was applied in Hughes v Lord Advocate5,where the plaintiff suffered serious burns when he tripped with a lamp in amanhole, which had been left unattended. It was held that the defendant wasliable because the accident was caused by a known source of danger, thus, theinjury was foreseeable. Lord Morris pointed out that defenders are not absolvefrom liability because they “did not envisage the precise concatenation ofcircumstances which led up to the accident…”6 In this case, Andy was aware of the damage hemay inflict on Hettie because he would have been aware that not carrying outthe correct steps as a plumber, would lead to property damage. Therefore, Andyis liable for the plaintiff’s loss. Andy v Dr Salt It should firstly be determined whether Dr Salt owed Andy aduty of care. Under the European Convention of Human Rights, Article 2 requiresa state to have a structure which will help to protect life7.Consequently, pubic bodies including hospitals, can be held liable forviolation of Article 2 for failing to prevent the infliction of harm by others.Thus, Dr Salt is potentially liable in negligence so the Caparo test is thus not necessary in this case.
Moreover, it has to be determined that Dr Salt was in breachof the standard of care. In Bolam v Friern Hospital Management Committee8 itwas established that a doctor will not be in breach of the duty of care if hisor her behaviour lies up to the standard of other responsible medicalprofessionals. This test was applied in Maynard v West Midlands HA9,where it was held that in relation to a diagnosis and treatment of a certain condition, adoctor is not necessarily negligent where one respectable body of professionalopinion is preferred to another. McNair J emphasises that a man cannot carry on with anold technique if it has been proven “to be contrary to what is reallysubstantially the whole of informed medical opinion”.10 In the case of Dr Salt, he was oneof a minority of doctors who believed that x-rays were dangerous and thus didnot give Andy one.
Thus, Dr Salt can discharge the duty of care if othermedical professionals agree with his reasoning. However, Bolam has beenmodified by Boltho v City and Hackney Health Authority11.Here, a doctor failed to put a tube down the throat of a child to assist hisbreathing. There were five experts that believed the doctor to be negligent andthree that said she had not. It was made clear from Bolitho that a doctorcannot escape liability for his or her conduct unless that conduct has rationaljustification. Dr Salt lacks this logical justification as the deformation ofAndy’s arm could have been avoided if did the usual practice to x-ray and setin a plaster and is thus, the defendant’s conduct is judged according to thestandard of a reasonable person in the medical profession.
Therefore, Dr Saltfalls below the standard of care expected of him and is in breach of his duty. Furthermore, it has to be established that defendant’sconduct has caused the claimant’s loss to establish causation. This can be doneby applying the ‘but for’ test thus asking whether if it had not been for DrSalt’s conduct, would Adam still have suffered a personal injury? In Barnett vChelsea and Kensington Hospital Management Committee12,the doctor was in breach of his duty for failing to examine a man whosubsequently died from arsenic poisoning. Expert evidence suggested, however,that that the man would have died anyway hence, the doctor’s breach of duty hadnot caused the man’s death. In this case, Dr Salt failed to examine Andy andsent him home. As a result, Andy suffers from a permanently deformed arm whichwould have been avoidable if the correct examination was carried out by the defendant.Therefore, if it was not for the defendant’s negligence towards the claimant,Andy’s loss would not have occurred; making Dr Salt liable. The claimant’s lossmust not have been too remote thus it must be of a foreseeable type.
In Roe v Ministry of Health13no duty was owed by the nurse to the patient who because paralysed. It was notknown that contamination could occur when the patient was injected by ampoules containingfluid. Thus, the defendant was not liable. Dr Salt should have been able to reasonablyforesee the claimant’s loss and a doctor would have been aware of the risks ofsending a patient home without full examination. Therefore, Dr Salt is liable for the plaintiff’sloss Overall, Hettie is able to claim negligence against Andy ashe tried to carry out a task that was not within his capabilities and hasnegligently caused property damage to Hettie’s lounge as a result.
Such a losswould not have occurred without Andy’s conduct, thus making him liable for anydamages. Andy would be advised that his claim against Dr Salt would also besuccessful as he is owed a duty of care that has been breached when he was senthome by Dr Salt and subsequently, suffered permanent deformation of his armwhich could have been avoided. If the claimant’s loss would have occurred evenwith examination, then Dr Salt would not be held liable. However, his conducthas caused Andy’s loss and so, he should be held negligible. 1 1973Q.B 272 19712 Q.B 6913 19582.
Q.B. 2654 1961AC 388 5 19631 ALL ER 7056 Hughesv Lord Advocate 1963 1 ALL ER 705 (Morris, John)7 HumanRights Act 1998, Art 2 (1)8 19571 W.
L.R. 5829 19851 All ER 635, HL10 Bolamv Friern Hospital Management Committee 1957 1 W.
L.R. 582 (McNair, J)11 1998A.
C. 85012 19691 Q.B. 42813 19542 Q.B 66