Medical + Professional Negligence

• Liability for Negligence


  Unintentional harm is actionable if there is a breach of the legal duty owed by the wrongdoer.

  
  

  As a general principle, liability for breach of duty must involve fault

  
  

  In order to determine if there is liability, we apply a series of tests to establish if the defender was negligent. As soon as we answer one in the negative, there is no negligence (no liability)
• damnum absque injuria


  "loss without injury", a loss that cannot be recovered in a court of law.
• Tests for establishing a claim in negligence


  1. Duty of care

  - Is there a duty of care owed? and to who

  
  

  2. Breach of Duty - has there been a breach

  
  

  3. Causal Link - Did the breach cause the harm?

  
  

  4. Remoteness - Is the loss proximate?
• Losses usually recovered ; examples.


  Personal injury and property damage arising from positive conduct by the defender
• Losses sometimes recovered


  personal injury and property damage arising from omissions;

  
  

  personal injury and property damage caused by a third party;

  
  

  harm to reputation; deprivation of liberty; economic loss; psychiatric harm suffered as a secondary victim;

  
  

  losses incurred in breach of statutory duty or in the exercise of statutory powers; and novel circumstances

  
  

  The only relevant remedy is damages

  Losses that are too remote will not be compensated
• How is the duty of care used in liability?


  Operates to limit the scope of liability

  
  

  Used as a threshold device to open up or restrict liability in given circumstances
• The obligation??? of duty of care

  It is not an obligation

  
  

  A common law duty of care "does not usually demand compliance with a specific obligation [requirement or stipulation].

  It is only when an act is undertaken by a party that a general duty arises to perform the act with reasonable care."

  Per Cory J in Lewis v British Columbia [1997] SCR 1145 at para 17
• Bourhill v Young (1943)


  Unforeseeable harm - miscarriage on witnessing aftermath of an accident - motorcycle rider not liable

  
  

  The duty to take care is not owed to the world at large, but to those to whom injury may reasonably and probably be anticipated if the duty is not observed." per Lord Macmillan in Bourhill v Young, 1942 SC (HL) 78 at 88
• Muir v Glasgow Corporation


  Dropped teapot and scolded a girl

  Could a reasonable person foreseen this happening?

  
  

  The same question may also be expressed: "Is the harm that has been incurred within the scope of the duty?"
• Proximity and Foreseeability


  Both the "to whom" and the "in respect of what" questions may be addressed by invoking the concept of proximity

  
  

  "The duty is created by the relationship, and the scope of the duty is determined by what in the context of that relationship is reasonably foreseeable."

  Per Lord Hope, Mitchell v Glasgow City Council [2009] UKHL 11 at 16
• Hill v Chief Constable of West Yorkshire [1989] AC 53


  Duties are owed to identifiable persons or persons within a reasonably well defined class as being reasonably likely to be affected by the defender's conduct
• Bolton v Stone [1951] AC 850


  Duties are owed in respect of harm that would have been within the defender's contemplation as being reasonably likely to follow from their conduct.
• Lord Reid in The Wagon Mound No2 [1967]


  Failure to guard against foreseeable, but improbable risks may require justification
• Hughes v Lord Advocate 1963


  Where the type of harm suffered is foreseeable (burns), it does not matter that the precise way it was caused, was unusual (explosion).

  
  

  Where harm of the type covered by the duty arises there may be liability notwithstanding the fact that the precise circumstances under which the harm was incurred could not have been foreseen
• Reasonable foreseeability - particular characteristics of victim?


  No duty per se arises from a pursuer's unknown susceptibility

  But, if there is a breach of duty the wrongdoer must "take the victim as he finds him/her"

  [The defender]..must take his victim as he finds him, and if his victim has a weak heart and dies as a result of the injury the negligent man is liable in damages for his death, even although a normal man might only in the same circumstances have sustained a relatively trivial injury"

  Per Lord Clyde in McKillen v Barclay-Curle & Co Ltd 1967 SLT 41 at 42
• Breach of Duty (Negligence)


  'unintentional harm'The conduct must constitute negligenceDuty is breached when conduct 'falls short' of the standard of careThe standard is objective, the standard is that of the 'ordinary reasonable person in the circumstances of the defender'
• Waugh v James K Allen Ltd


  To breach a duty, the conduct must have been voluntary
• Muir v Glasgow Corporation


  The standard varies with the degree of risk: "There is no absolute standard, but it maybe said generally that the degree of care required varies directly with the risk involved." per Lord MacMillan
• Does the 'Standard of a Care' vary from person to person?


  No, the same care must be taken as a junior doctor vs a specialist doctor
• Considerations when setting the standard of care

  • Onus on pursuer to establish the standard of care that ought to have been taken.Factors:Risk/probability of accident occurringMagnitude of possible harm'Reasonable' precautionsThe standard varies with (i) the probability of injury and (ii) potential magnitude of harm if injury occurs
• Probability of injury - Bolton v Stone 1951 and Lamond v Glasgow Corporation 1968


  llustrate the 'calculus of risk' approachThe greater the risk the greater amount of precautions should be taken.
• Paris v Stepney BC 1951


  the magnitude of potential harm was greater for Paris so more precautions should have been taken. The cost and effort of providing goggles was very small compared to the magnitude of the risk.
• Harris v Perry 2008

  1 year old broke their skull on bouncy castle (boy did flip on bouncy castle) - parent had their back turned. Is there that standard that children should be supervised? Held there was no breach of duty - cannot be expected to look after child 100% of the time.
• Anderson v Imrie (2018)


  1 year old left unsupervised, climbed on gate within farm yard - left with another child who owned a farm, left them unsupervised. 11 year old fell and had serious injuries. Child was left unsupervised by an adult that's meant to be looking after them. Occupier of the farm was looking after the boy 
• Brown v Rolls Royce


  Common practice to provide employees of barrier cream. Rolls royce did not do this. Employees always in contact with oil, therefore many companies do this. Employee contracted dermatitis. However, rolls royce gave alternative provision - they had done what a reasonable employer would have done.
• The duty of the pursuer and causation


  The onus is on the pursuer to prove that the breach of duty caused the harm complained of.This involves mixed questions of fact and law
• Fact - Causation


  What causal connection existed between the breach of duty and the harm complained of?
• Law of Causation


  was the original act of negligence an effective cause of the resultant harm?In addition to the factual cause, the defender's breach of duty must be the legal cause of harm
• causa sine qua non


  Factual causation (latin
• Novus actus interveniens

  Intervening cause, a new act which breaks the chain of causation.
• Casual connection to causation


  Cannot be assume; it must be proved, or at least be interferred from the facts
• McWilliams v Archibald Arrol & Co 1962


  was the breach (failure to provide safety belt) the causa sine qua non of his death? He was a steel erector , they were not provided safety belt and fell to his death. "He would not of worn it anyway even if it had been proving
• Barnett v Chelsea & Kensington Hospital Management Committee 1969

  He had drunk a cup of tea which had arsenic poisoning, went to casualty, told to go see their doctor, however died before they could reach the doctor.He would've died anyway, arsenic poisoning would've killed him
• Kay's Tutor v Ayrshire & Arran HB (1987) SC(HL) 145


  Was the overdose the causa sine qua non of the child's deafness? - meningitis case, was this dose the cause of the deafness or was it the meningitis? Pursuer failed to establish but for the breach deafness would not have occurred.
• McTear v Imperial Tobacco Ltd (2005) 2SC 1

  Was the spouse able to show that her husband would not have died of lung cancer had he not smoked the defender's brand of cigarettes? Would it have mattered what brand of smoke? (part of judgement), they had failed to show he would not have died of lung cancer.
• Sayers v Harlow (1958)


  reasonably foreseeable conduct of victim (no novus actus interveniens)she had entered into public toilet maintained by harlow. The toilet stall broke - she was stuck in the stall. She tried to escape and she fell after trying to balance on the seat and toilet roll holder.
• McKew v Holland & Hannen & Cubitts

  • unreasonable conduct of victim (is novus actus interveniens)leg would give way with no warning after injuring it at work.was going down stairs and fell , their legs gave way. They tried to jump the rest of the way. They then injured their good leg. They broke that chain of causation.
• Remoteness and foreseeability


  there may be breach of duty, but the claim (or part of it) may be 'too remote' from the breachRemoteness of damage is connected with the extent of liability (reparation)This approach equates direct consequences with those that are reasonably foreseeable
• Simmons v British Steel plc

  Liability limited to foreseeable consequences
• Kyle v P&J Smormonth-Darling 1993 SC 57


  Deprivation of legal right"