Negligence and Damages in Birth Injury

This assignment analyzes a case study involving a baby born with mental and physical disabilities due to alleged medical negligence during labor. It examines the hospital authorities' breach of duty of care, potential defenses, and the claimant's entitlement to damages based on relevant legislation and case law. The analysis considers contributory negligence by the claimant and its impact on the final damage award.

Running head: TORT AND NEGLIGENCE
TORT AND NEGLIGENCE
Name of the student:
Name of the university:
Author Note

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TORT AND NEGLIGENCE
Table of Contents
Issue:................................................................................................................................................2
Analysis with Relevant Legislation.................................................................................................2
Duty of Care................................................................................................................................2
Breach of Duty.............................................................................................................................3
Causation.....................................................................................................................................4
Remoteness of Damage...............................................................................................................5
Proximity.....................................................................................................................................6
Foreseeability...............................................................................................................................6
Defense and possible outcomes:..................................................................................................7
Conclusion.......................................................................................................................................8
Bibliography..................................................................................................................................10

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Issue:
 Was the Hospital authority responsible for the mental and physical disability of the baby
born?
 Was the party entitled to claim damages from the hospital authorities?
 Was the party also partially responsible for the mental and physical disabilities of the
baby born?
Analysis with Relevant Legislation
The remarkable case Donoghue v Stevenson 1talks about the principles of negligence. It was held
in this case that the claimant must prove before the court:
 The defendant had Duty of care to the to the claimant
 There was a breach of such duty
 The claimant suffered a loss due the breach of duty by the defendant
 The damage was not too remote
 There was proximity between the parties
 The damage was foreseeable
Duty of Care
According to the aforementioned case, it is important to note that the claimant must prove
that the defendant owed a duty to him. It is essential for the alleged party to prove in the court of
law, that the he had taken due care to prevent the occurrence of any incident which hampered the
interests of the other party2. It is important for the alleged party to prove that it was not
1 [1932] AC 562
2Spamann, Holger. "Monetary Liability for Breach of the Duty of Care?." Journal of Legal Analysis 8.2 (2016): 337-
373.

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TORT AND NEGLIGENCE
reasonably possible for him to foresee the injury caused or loss suffered by the victim to prevent
the same3. In this case it can be noted that the doctor had a duty to the claimant who was his
patient. It was the duty of the doctor to properly diagnose the disease of the patient while she was
admitted in the hospital. It is also important to mention that it was the duty of the consultant to
pay attention to the advice of the GP of the claimant regarding her medical records prior to her
pregnancy.
Breach of Duty
It can be stated that for breach of duty in negligence to be established, the claimant must
prove that the defendant had had failed to take reasonable care as prescribed by the law4. The
claimant has to prove that the defendant failed to perform the duties vested in him or required to
be performed by him due to which the interest of the client was hampered5. In the remarkable
case, Vaughan v Menlove 6, it was held by the court that for deciding breach of duties in
negligence an objective test is required. The duty of the person should be judged by the standard
of a reasonable man. It was also stated that if the party is a professional his duty would be judged
by the standard of any reasonable man within that profession7. However in the case, Condon v
Basi 8it was held that the objective test can vary depending on several factors. The hospital
authorities neglected her medical records of the past and also failed to advise her to opt for
Caesarean form of operation for giving birth to her baby. It can be reasonably deduced that
3Goldberg, John CP, Anthony J. Sebok, and Benjamin C. Zipursky.Tort Law: Responsibilities and Redress.Wolters
Kluwer law & business, 2016.
4 Duggan, Magdalena. "Tortious Liability for a Negligently Performed Surgery in Utero under English and Irish
Law." Hibernian LJ 15 (2016): 27.
5 Wright, Jane. Tort law and human rights. Bloomsbury Publishing, 2017.
6 (1837) 3 Bing. N.C. 467
7 Robbennolt, Jennifer K., and Valerie P. Hans. "The psychology of tort law." Advances in Psychology and Law.
Springer International Publishing, 2016. 249-274.
8 [1985] 1 WLR 866

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opting for a different method of giving birth to her baby could have eliminated or minimized the
risk of disability of the baby. Thus, it can be stated that there was a breach of duty on the part of
the doctor for not taking into consideration the medical records of the patient and failing to take
the advice of her GP. The doctor had also failed to understand the severity of her disease, pre-
eclampsia and the consequences of the same on childbirth. The consultant considered that Gilly
was well enough to go full term and that this would be better for the baby. He did not advise
Gilly that the baby was small for its gestational age. Thus, it can be stated that there was breach
of duty on the part of the consultant in faulty and wrong advice.
Causation
In the case Barnett v Chelsea & Kensington Hospital,9it was held by the court that it is
essential for the claimant to determine the reason of causation of the damages. The claimant must
prove in the court of law that the damages suffered by the claimant were due to the negligent
actions of the defendant. In the aforementioned case, it was held by the court for proving the
liability of the defendant, a ‘but for’ test is generally conducted to deduce whether the defendant
was liable for the damage faced by the claimant. In this chosen case study, the claimant had
suffered from the neglect of care of the doctors and the hospital authorities. The baby was born
with mental and physical disabilities due to the same.
Remoteness of Damage
In the remarkable case Re Polemis & Furness Withy & Company ltd. 10it was held by the
court that the claimant must initially prove in the court that the defendant owed a duty to the
claimant and must prove that the claimant suffered a loss due to the breach of duty of the
defendant. Furthermore the claimant must also prove that the damage faced him was foreseeable
9 [1969] 1 QB 428
101921]3 KB 560

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to the defendant. The claimant must prove in the court that the damage sustained by him was not
too remote. In the case The Wagon Mound no 1 11it was held by the court that there must a test to
prove that the damage faced by the claimant was not too remote.
The objective of the test is to analyze whether the damage faced by the claimant was
foreseeable to the defendant. The rue of the aforementioned case was applied in cases Hughes v
Lord Advocate 12and Doughty v Turner Manufacturing Company13. However, it is to be noted
that there remains some confusions regarding the remoteness of damage faced by the claimant.
In the case Smith v Leech Brain14 it was decided by the court that egg shell skull rule would be
applied in considering the remoteness of damage faced by the claimant. This rule states that the
defendant must accept the claimant, the victim in a state in which he had found him. This means
that the defendant must take responsibility of the vulnerability of the victim, if the same has a
condition which has been pre-existing and would be likely to suffer a greater injury due to the
actions of the defendant. In this chosen case study, it can be stated that the victim, the claimant
had been suffering from pre- eclampsia and the hospital authorities had been aware of her
medical condition. The victim had also been in a car crash, as a result of which she sustained
severe injuries to her chest and stomach and the same had been informed to the hospital
authorities by the GP of the claimant. Thus, it can be held that the doctors of the aforementioned
hospital failed to consider her medical records, prior to delivering her baby. They failed to
predict the damages caused to her baby because of the aforementioned conditions of the victim.
They even failed to advise to her to opt for a caesarian form of operation to eliminate the risk of
any mental and physical damage to the baby. Thus taking the above-mentioned points into
11 [1961] AC 388
12 [1963] AC 837
13 [1964] 1 QB 518
14 [1962] 2 QB 405

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consideration it can be stated that the damage was not to remote and could be foreseeable to a
reasonable person within that profession
Proximity
In the remarkable case Donoghue v Stevenson 15 Lord Atkin had established that the
neighbor principle to judge the proximity between the parties. It states that there needs to exist a
legal relationship between the parties for breach of duty of care to be established. In the case
Anns v Merton London Borough Council 16 it was held by the court that a two-stage test needs to
be undertaken for the understanding the proximity. The test involved examination of:
 Whether any proximity exits between the alleged party and the victim and whether any
careless act of the wrong doer could hamper the interest of the victim.
 There are no provisions, which could reduce the scope of duty.
Foreseeability
In the remarkable case Caparo Industries Plc v Dickman 17 a three-stage test was coined
up to impose the duty of care. It can be stated that the in this case the House of the Lords had
overruled the former Anns test. The Caparo test involved the examination of:
 whether the damage caused to the victim was foreseeable to the alleged wrong doer
 there was proximity between the parties
 There is reasonable ground to impose duty of care.
Defense and possible outcomes:
15 [1932] UKHL 100
16 [1978] AC 728
17 [1990] 2 AC 605

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According to Law Reform (Contributory Negligence) Act18, contributory negligence can
be a ground of defense for the defendant. It is one of the most grounds taken in the cases of
negligence. However according to the aforementioned, act it can be stated that contributory
negligence acts a partial defense in all cases. This ground of dense in more favorable to the court
as it can divide the amount of damages to be claimed between the parties. S.1(1) Law Reform
(Contributory Negligence) Act 1945 defines contributory negligence as a condition where the
victim, the claimant suffers a loss due to the negligence of the defendant as well as partial
negligence of the victim or the claimant itself. In such a case, the defendant cannot be held
solely responsible for the damage sustained by the claimant and thus cannot be expected to pay
the entire amount of damage as claimed by the claimant. Revill v Newbery19 in this remarkable
case it was held by the court that the contributory negligence defense ground remains valid even
when other grounds of defense to negligence fail.
According to the aforementioned act, it can be stated that the it is the burden of the
defendant to prove that there was negligence on the part of the claimant as well. It is the
responsibility of the defendant to prove before the court that the claimant could not take proper
care in a condition when the incident occurred which resulted in the loss suffered by the
claimant. The Defendant must also prove that the failure of the claimant to take reasonable care
was a contributory cause of the damage suffered. In this case study, it can be noted that on the
request of Gilly, the hospital authorities decided to delay the inducement of labor for thirty six
hours, the time taken by her husband to fly from New York City. It is believed and considered
that the brain damage of the baby happened within the stated thirty six hours. Therefore, it can be
held that the hospital authorities cannot be held solely responsible for the damage caused to the
18 1945
19 [1996] 2 WLR 239

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baby at birth. It was on the request of the victim that the hospital authorities delayed the
inducement of labor, thus the victim can be also held partially responsible for the mental and
physical damage sustained by the baby at birth. In the remarkable case, Davies v Swan Motor
co20it was held by the court that the exposure on oneself to danger can be a reasonable cause for
the occurrence of contributory negligence. In this chosen case study, it can be noted that the
Claimant had exposed herself to the danger by suggesting the hospital authorities to delay the
inducement of labor for a period of thirty-six hours, which is when the damage was expected to
have been caused to the baby. It is important to mention that there was negligence on the part of
the claimant as well to have neglected the advice of her GP and insist the hospital authorities to
perform a Caesarian operation to deliver her baby as that would have minimized the risk of any
mental and physical damage to be caused to the baby.
Conclusion
Thus after analyzing the case study in relation to the relevant legislation it can be stated
that the claimant is entitled to claim damages for the breach of duty and negligence of the
hospital authorities, as result of which her baby was born with mental and physical disability.
The negligence of the hospital authorities was constituted by breach of duty of care, when they
failed to take consideration of the claimant’s medical condition, the status of development of the
fetus in her womb and her previous medical records. They even failed to take the advice of the
GP of the claimant and therefore did not perform a Caesarian operation for delivering her baby
which would have possibly eliminated any risk the damage caused to the baby. However it can
be mentioned that the Hospital authorizes and the doctors in their defense can bring charges of
contributory negligence on the claimant for suggesting them to delay the inducement of labor for
20 [1949] 2 KB 291

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a period of thirty six hours which is when the baby supposedly sustained the damage. Therefore
it can be said by analyzing the case facts that the claimant would be entitled to claim damages
from the hospital authorities but the amount of damage will not sole borne by the hospital
authorities as there was contributory negligence on the part of the victim as well.

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Bibliography
McCabe v Hall [2015] EWHC 260 (QB)
Doy v Dr Gunn [2011] EWHC 3344 (QB)
Audrey Burnett v Dr Lynch [2012] EWCA Civ 347
Dr Maguire v North West Strategic Health Authority [2012] EWHC 3272 (QB)
Donoghue v Stevenson [1932] AC 562
Spamann, Holger. "Monetary Liability for Breach of the Duty of Care?." Journal of Legal
Analysis 8.2 (2016): 337-373.
Goldberg, John CP, Anthony J. Sebok, and Benjamin C. Zipursky.Tort Law: Responsibilities and
Redress.Wolters Kluwer law & business, 2016.
Vaughan v Menlove (1837) 3 Bing. N.C. 467
Condon v Basi [1985] 1 WLR 866
Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428
Re Polemis & Furness Withy & Company ltd 1921]3 KB 560
The Wagon Mound no 1[1961] AC 388
Hughes v Lord Advocate [1963] AC 837
Doughty v Turner Manufacturing Company [1964] 1 QB 518
Smith v Leech Brain [1962] 2 QB 405

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TORT AND NEGLIGENCE
Revill v Newbery [1996] 2 WLR 239
Davies v Swan Motor co [1949] 2 KB 291
Wright, Jane. Tort law and human rights. Bloomsbury Publishing, 2017.
Duggan, Magdalena. "Tortious Liability for a Negligently Performed Surgery in Utero under
English and Irish Law." Hibernian LJ 15 (2016): 27.
Robbennolt, Jennifer K., and Valerie P. Hans. "The psychology of tort law." Advances in
Psychology and Law. Springer International Publishing, 2016. 249-274.