Chapter 8 Answers to chapter-opening problem questions

Breach of duty: the standard of care

The best way to answer this question is to work through each of the potential claimants one by one. Use headings. The key issue here is whether Iris or the Doctor are liable in the tort of negligence for Kate’s injuries. You should make sure that you state clearly which defendant(s) the claimants may potentially claim against – for example, Kate will have a potential claim against both Iris and the doctor – and the injury for which they are responsible – i.e. minor cuts and bruises and/or infection. Your structure is crucial. It must be coherent. This is the thread, which holds the separate pieces of the analysis together. Generally, this explains how you get from one issue to the next, and the use of headings can often help in a complicated problem question. Do not have more than one bite at an issue: identify it, analyse it, dispose of it, and move on.  Often, one issue will only arise if another is resolved in one particular way: make this kind of relationship between the issues clear. Finally, although the question is located in the ‘breach’ chapter of the book, it is important that you consider all the elements to a claim in negligence in order to answer the question fully.

Kate v Iris

Kate and Iris have spent the afternoon looking at wedding dresses. Before heading home they go to a new champagne bar to celebrate finding ‘the one’. Iris offers Kate a lift home in her car, assuring Kate that she’s all right to drive as she’s ‘probably only just over the drink-drive limit’.  On the journey home Iris loses control of the car and crashes into a lamp post. Kate suffers minor cuts and bruises and is taken to hospital for a check up.

Iris clearly owes Kate a duty of care (Chapter 3). The next question to consider is whether she has ‘breached’ this duty by failing to act as a reasonable driver should. You are told that she believes she is ‘probably only just over the ‘drink-drive limit’. Clearly, the reasonable man would not drive a car if she believed himself to be ‘just over’ the drink-drive limit and so you can use this detail to suggest that she is in breach of her duty of care – that is she has fallen below the standard of care required of the reasonable man. Do not introduce other facts as to why Iris might have crashed.

Clearly, Kate’s minor cuts and bruises were caused by the accident and were reasonably foreseeable so both factual and legal causation are established (see Chapter 9). Iris will obviously want to raise a defence. Remember voluntary assumption of risk does not apply to road traffic accidents (Road Traffic Act 1988 section 149). Nor did Kate act illegally by getting into the car with Iris (despite knowing she is drunk). The only one defence open to Iris is contributory negligence. In order for the defence to be established, three questions need to be addressed which you should address in turn:

  1. Did Kate fail to exercise reasonable care for her own safety?
  2. Did this failure contribute to Kate’s damage? and
  3. By what extent should Kate’s damages be reduced? (Chapter 10)

At the hospital Kate contracts an infection in a cut to her right arm. The doctor on duty decides not to treat the infection with antibiotics immediately as he has recently read a report in a little-known medical journal which suggested that it is better to allow the body ‘time to heal’ following a trauma. Kate’s right arm is partially paralysed.

Iris would also be liable for the infection (Robinson v Post Office [2000]). If the doctor’s actions amount to negligence (see further below) you should consider whether this would break the chain of causation in relation to Kate’s claim against Iris (Knightley v Johns [1982] see further section If so the doctor (and the hospital as his employer) would now be liable for this new injury and Iris would only be responsible for the injuries up to the doctor’s decision not to treat the infection.

Kate v the doctor (and the Hospital)

The doctor clearly owes Kate a duty of care. In relation to breach you should compare and contrast the decisions in Bolam, Bolitho and Montgomery v Lanarkshire NHS Trust [2015] here in order to establish whether the doctor’s actions are reasonable. It is very unlikely that the doctor’s actions are reasonable - a reasonable doctor would have treated Kate’s infection. Once breach is established, Kate would need to show that on the balance of probabilities that the paralysis was caused (in fact and law) by the doctor’s negligence (that is, on the balance of probabilities ‘but for’ the failure to treat the infection Kate’s arm would not be paralysed and that the harm is of a sufficiently foreseeable kind) (Chapter 9).

Kate v the Hospital

Remember also to discuss the vicarious liability claim against the doctor’s employer, that is against the Hospital (Chapter 20). As usual, you should state the law and then apply it to the facts as given. The following conditions must be met:

  1. There must be an employer-employee relationship;
  2. The employee must have committed a tort; and
  3. The tort must be committed while the employee was acting in the course of employment.

The test in relation to the latter is one of ‘close connection’ (Lister v Hesley Hall Ltd [2001]).

There are no applicable defences here.

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