Business Law: Tort Law - Negligence Problem Question Analysis

This report provides a comprehensive analysis of a tort law problem concerning negligence. The analysis examines the elements of negligence, including duty of care, breach of duty, and causation, using case law such as Caparo Industries plc. Vs. Dickman and Bolam v Friern Hospital Managment Committee. The report considers the application of the Caparo test, the concept of contributory negligence, and the standards of care expected of medical professionals. It addresses the liability of multiple parties, including a doctor and another individual involved in an accident, evaluating potential defenses and the impact of actions such as not wearing a helmet and running a red light. The analysis concludes with a determination of liability based on the presented facts and legal principles, providing a detailed breakdown of the legal arguments and outcomes.

BUSINESS LAW
TORT LAW

Law of Tort – Problem Question
The issue in the given case study is to analyse whether a tort claim can be succeeded on the
part of Anna against Baz and Diana under the negligence conduct. In order to establish the
tort law claim, the various aspects of Negligence would be examined. These are the existence
of the duty of care on the part of the defendants, the violation of such duty of care and that
the damages that were sustained were the direct result of the breach of the above assessed
duties, and thus the defendants Baz and Diana indulged into negligent conduct. On the other
hand, the defendants can succeed in avoiding the liability by proving that one or more of the
above elements were missing.
Existence of Duty of Care
Negligence tort is a branch of tort law which focuses on the negligent conduct of the parties.
The negligent conduct denotes a situation wherein an individual has indulged into omissions
in acting thus has not acted in a manner a reasonably prudent person would have done in the
given situation1. There existed a duty to care on part of the defendants is the prime condition
to be proved to successfully establish the negligence claim. As pronounced in the renowned
case of Caparo Industries plc. Vs. Dickman2, in order to establish whether there existed a
duty of care or not, the three step test must be satisfied. However, the said test need not be
applied where there is a proximate relationship between the parties as mentioned in the legal
provisions of tort law. In the given case study, there are three parties. While a proximate
relationship exists between Dianna and Anna by the virtue of being the doctor and the patient,
the Caparo test needs to be applied in case of Baz and Anna.
The three steps in the Caparo test are elaborated as follows. The first step calls for the
assessment of the proximate relationship which does not simply mean the proximity in
physical manner, but means the legal proximity. The fact that both Baz and Anna were
driving on the road, both had a physical as well as the legal proximity in terms of the road
users. It is to be noted that as per the general rule of the law, a road user owes a duty to care
towards all the other road users3. As per the second step of the test it is to be seen whether
defendants engaged in the acts which led to the establishment of the risk or the increment of
the same that further led to the harm. In the given case study it is to be noted that as per the
1 Kirsty Horsey and Erica Rackley, Tort Law (4th edn, OUP 2015) 38-39.
2 Caparo Industries pIc v Dickman [1990] 2 AC 605
3 'What Are The Duties Of Road Users? | Truth Legal Solicitors' (Truth Legal Solicitors, 2018)
<https://www.truthlegal.com/what-are-the-duties-of-road-users/> accessed 11 March 2020.

road safety standards the prescribed speed limit was 30 miles per hour, in contrast to this the
car of Baz was approaching at a speed of 50 miles per hour. The third step calls for the
assessment as to whether there was a foreseeability of the risk on the defendant’s part. The
fact that Baz was driving at a higher speed than the prescribed limit leads to the observation
that though the lights were green but such a high speed at the cross roads was relevant for the
causation of the accident. Thus, there was a foreseeability of the risk on the part of Baz. The
last step is to make sure that the imposition of the liability must be just and fair. Thus, the
above assessment prima facie leads to the observation that there existed duty of care on the
part of Baz as well.
Possible defence: Contributory Negligence
However, one of the yet another important features of the negligence tort is the “contributory
negligence.” The said rule acts as a defence on part of the defendants wherein the injured
party has himself/herself failed to act prudently which has led to the causation of the injuries,
as was held in the case of Davies v Swan Motor co4. There are two principles that need to be
established here that are failure on the part of claimant to take proper care risking their own
safety and that the damages were suffered as a result of the failure determined above. Thus,
when an injured party creates an unreasonable risk for himself or herself, the entire
responsibility of the accident would be on that party itself and the fact would be ignored that
the other party was involved as well. It is to be noted in the given case that not only did Anna
failed to wear a helmet while riding the bicycle, but also the fact that as she was getting late
to the school, she attempted to cross the road while it was showing red lights, which led her
vehicle bumped into the car of Baz. This means though Baz was involved in the accident, but
the fact that Anna was crossing the red light and was not wearing the suitable head gear
would prevent Anna from sustaining a claim against Baz.
Hence, it can be concluded that there was a duty of care on the part of Dianna and Baz.
However, in the case of claim against Baz, the contributory negligence on part of Anna
would restrict the claim and thus, defendant is free from the responsibility of such a duty of
care and claim.
4 Davies v Swan Motor co [1949] 2 KB 291

Breach of Duty
The next key condition that needs to be established is that the parties violated their duties as
were determined in the previous sections. As Baz has been free from the claim, the breach of
duty would be examined in the case of Dianna only.
As was held in the case of Vaughan v Menlove5 the objective test is applied to test whether
there was a violation of the duty of care on the part of the defendants in the given
circumstances. The objective test works on the legal principal that there was a requirement to
take a certain standard of care by the defending parties and there was a failure on their part to
take the reasonable steps to maintain such standard of care even when the foreseeability of
harm was clear and evident. Maintenance of the attitude of reasonable care and act in a given
situation refers to the employment of the requisite skills as any competent person would have
done in the given circumstances. Thus, it is to be proved by the claimants that the parties
indulged into irresponsible behaviour. The fact that the defendant is the medical professional,
who is required to exercise key specific skills leads to certain modifications in the breach of
duty of care. As per the legal rules, it is to be noted that there would no instances of
negligence on the part of the medical professionals if the procedures have been followed
properly as prescribed by a responsible body in this regard, as was held in the case of Bolam
v Friern Hospital Managment Committee6.
In the given case it is to be noted that Diana was the senior house officer who had attended
the case of the accident of Anna. This means, as a senior house officer, she was expected to
exercise certain key skills for the right diagnosis of the possible issues from the accident.
Some of the practices she did follow were taking the medical history from Anna (patient)
before giving the treatment to her and enquire about the facts of the incident. One of the key
medical practices in the case of the accidents is to examine the body of the patients by the
professionals themselves, as the patients are not in the right state of mind to recollect each
and every possible detail because of the trauma sustained. It is to be noted that as Dianna
asked Anna about the injuries on head, Anna replied she was not able to recollect any such
incident. Instead of following the generally applicable medical practice of examining the
possible injuries by doctor himself, Dianna relied on the statement of Anna and initiated
5 Vaughan v Menlove (1837) 3 Bing. N.C. 467
6 Bolam v Friern Hospital Managment Committee [1957] 1 LR 582.

discharge order for her. The examination of the physical injuries to the head is one of the
prime practices specially in the case of accidents. While Anna was discharged on the basis of
reliance of her statement itself, in reality she had hit her head to the road significantly. This is
in addition to the fact that no piece was advice was extended to Anna or her parents regarding
the delayed effects of the accident if any, as the case was of the head injury. Thus, the above
analysis lead to the observation that there was a failure on the part of Dianna to fulfil her
duties as a reasonable medical professional would have undertaken to do so in the given
circumstances of head injury.
Causation
The yet another condition to be fulfilled to establish the claim of the negligence is the
causation. In this condition factual causation and the legal causation has to be established
which means that the damages that were occurred were the direct cause of the breach of the
duty of care.
In the case of the factual causation the ‘but-for’ test is applied where it is examined that what
were the probabilities of the occurrence of the harms in relation to the breach of the duty as
was held in the case of Barnett v Kensington & Chelsea Health Management Committee.7
Applying the above principle it is to be noted that there were two causes for the cerebral
haemorrhage. First, blood vessel where the occurrence of the haemorrhage took place was
unusually weak which increased the extent of the harm and the second that the regular
hospital practice was not followed which could have aided in the timely diagnosis of the head
injury. The delay in proper treatment and the absence of advice over the head injury is one of
the key causes of worsening the condition of Anna. It cannot be stated that timely diagnosis
would have prevented the damages to which extent, but surely the negligence on the failure
of diagnosis contributed towards the effects.
For the legal causation to be established, the doctrine of remoteness must be assessed as was
held in the case of The Wagon Mound no 18. According to the said principle, it must be
established that there was no remoteness between the damages and the breach of duty.
Monetary or economic loss, physical harm, mental injury or the nervous shock specifically
fall in the category of the legally caused damages. Thus, as Anna has sustained paralysis
down the side of her body, it is both a combination of physical as well as the mental injury.
7 Barnett v Kensington & Chelsea Health Management Committee [1968] 2 WLR 422.
8 The Wagon Mound no 1 [1961] AC 388

Conclusion
The discussions conducted in the previous parts lead to the conclusion that Dianna is liable
towards Anna in the light of medical negligence. However, Baz would not be held liable as
Anna had indulged into contributory negligence by not wearing proper headgear and heeself
contributed towards her injuries.

Bibliography
Books
Kirsty Horsey and Erica Rackley, Tort Law (4th edn, OUP 2015)
Case Laws
Caparo Industries pIc v Dickman [1990] 2 AC 605
Vaughan v Menlove (1837) 3 Bing. N.C. 467
Davies v Swan Motor co [1949] 2 KB 291
Bolam v Friern Hospital Managment Committee [1957] 1 LR 582.
The Wagon Mound no 1 [1961] AC 388
Barnett v Kensington & Chelsea Health Management Committee [1968] 2 WLR 422.
Others
'What Are The Duties Of Road Users? | Truth Legal Solicitors' (Truth Legal Solicitors, 2018)
<https://www.truthlegal.com/what-are-the-duties-of-road-users/> accessed 11 March 2020