Assignment On The Negligence

Running head: NEGLIGENCE
NEGLIGENCE
Name of Student
Name of University
Author Note

2NEGLIGENCE
Table of Contents
Issue.................................................................................................................................................3
Rules................................................................................................................................................3
Application......................................................................................................................................4
Conclusion.......................................................................................................................................4
Reference.........................................................................................................................................5

3NEGLIGENCE
Issue
The main issue in this case is whether Pat’s doctor would owe the three students any duty
of care.
Rules
As per the common law of torts for the establishment of negligence four elements must
be proved. These four elements are duty, breach, cause and harm. There should be a duty of care,
the duty should be a breach of that duty, the breach should be causing harm to the plaintiff and
because of the breach the plaintiff has suffered harm.
The test of duty of care was first established in the case Donoghue v Stevenson [1932]. In
the case the court held that for establishing the duty of care there must be some general concept
of relation present between the parties.
As per the egg shell skull rule the defendant would be liable for the unforeseeable and
uncommon reactions of the plaintiff towards the negligence of the defendant. The rule was first
established in the case Smith v Leech Brain & Co [1962].
In the case Esanda Finance Corporation v Peat Marwick Hungerfords [1997] it was held
that any person would not be held liable for any third party loss that was not foreseeable from the
beginning.

4NEGLIGENCE
Application
In the case it was seen that Pat was having difficulty in staying awake in lectures and she
contacted her doctor who was negligent in failing to diagnose. The doctor had a duty of care
towards Pat, he breached the duty, because of this breach Pat developed painful swellings and by
her contact three fellow students developed mumps and were unable to sit for the exam. This can
be considered as the causation and harm of the negligence of the doctor.
Applying the test of duty of care established in Donoghue v Stevenson it can be seen that
there was a general concept of relation present between the doctor and Pat. They had a doctor-
patient relation for which the doctor owed her a duty of care. However there is no general
relation between the three students and Pat’s Doctor.
Applying the egg shell skull rule, established in the case Smith v Leech Brain & Co
[1962], it can be said that the doctor would be liable for the effect of his negligence.
Applying the Esanda Finance Corporation v Peat Marwick Hungerfords [1997] it can be
said that the defendant would not be held liable for unforeseeable third party losses. However in
this case the losses were foreseeable as mumps is carried on through contact. If Pat’s doctor
diagnosed the disease on time then those three students would not have developed the disease
and would be able to sit for their examinations.
Conclusion
Thus it can be concluded that Pat’s doctor owes the three students a duty of care.

5NEGLIGENCE
Reference
Donoghue v Stevenson [1932] All ER 1
Esanda Finance Corporation v Peat Marwick Hungerfords [1997] 188 CLR 241
Smith v Leech Brain & Co [1962] 2 QB 405