Advice in the Matter of Joleons
Introduction
This paper provides advice in the matter of Joleon's potential claims for compensation in the tort of negligence against Dirk, Victor, Jermaine and Dr Gerard, who may vicariously implicate his employer health authority. Each potential defendant is considered separately for the sake of clarity and brevity. Relevant case law is identified, discussed and applied in the formulation of advice tailored to suit the facts and the pertinent legal matrix. Each potential defendant is offered advice in summary on the basis of the analysis of their conduct in all the circumstances of the case and general points of observation are made where appropriate.
Advice to Dirk
Joleon's first injury is suffered when Dirk spills hot coffee over him and he is badly scalded. In order to establish a claim in negligence against Dirk it is necessary for Joleon to satisfy five primary conditions. Each of these conditions is fundamental to the claim and all must be made out on the civil standard of proof which is the balance of probability. If Joleon fails to make out a satisfactory case on any of the conditions his claim will fail. The conditions are as follows. Joleon must prove he is owed a duty of care by Dirk. He must prove breach of that duty. He must prove damage suffered. He must prove that the damage suffered was a direct consequence of the breach. Finally he must prove that the damage suffered was a reasonably foreseeable consequence of the breach (i.e. that the damage is not too remote for recovery).
The question is thus whether Joleon is owed a duty of care by Dirk. The foundation authority on this point lies in Donoghue v Stephenson (1932)1 where Lord Atkins held: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question.”
Overlaying this authority is the more modern precedent of Caparo Industries plc v Dickman (1990)2 which provides the following elaboration: “In addition to foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of ‘proximity' or ‘neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the court should impose a duty of a given scope upon the one party for the benefit of the other.”
The Caparo formulation was recently upheld by the House of Lords in the case Sutradhar v Natural Environment Research Council (2006). On the facts and with a view to both Donoghue and Caparo it is advised that it is very clear that Dirk would be held to owe Joleon a duty of care given that he is a patron in his establishment and he has responsibility to bring Joleon a steaming hot liquid which has the potential to cause serious harm. Joleon will be considered to be a neighbour of Dirk under Donoghue and it is fair, just and reasonable to hold him to account under a duty of care in terms of Caparo.
As for breach of duty one must immediately ask the following question: why is a man who suffers from an illness that causes him to collapse spasmodically and at random charged with responsibility for delivering food and beverages including hot drinks to patrons tables? It seems quite bizarre and is instantly suggestive of negligence. It is inferred from the facts presented that Dirk is aware of his condition and has continued these activities regardless.
Blyth v Birmingham Waterworks (1856) provides the following guidance on the matter of breach of duty: “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.”
It is submitted that a reasonable man would have employed an individual to work as a waiter who was not liable to throw food and scalding drinks over customers at any given moment. It is thus advised that Dirk is in breach of his duty to Joleon.
The damage suffered by Joleon is manifest. His legs have been badly scalded. It is also necessary, as stated, to prove that the damage was a natural and direct consequence of the breach of duty. On the facts this is presumably not a contentious matter. Although causation problems can cause a claim to fail, as in Barnett v Chelsea and Kensington Hospital Management Committee (1969)5, in this case it is advised that Joleon will be able to establish causation without undue difficulty given the flow of events.
Finally, Joleon must demonstrate that the damage he suffered was not too remote in the circumstances. The Wagon Mound No.1 (1967)6 provided that only damage that is considered to be a reasonably foreseeable result of the breach will be deemed recoverable under a claim in the law of negligence. On the facts it seems that such an incident was reasonably foreseeable, although the advice is conditional on further particulars as to the exact nature of Dirk's illness and his prior awareness of it (which has been inferred thus far). Assuming that Dirk is aware of his condition and that the condition manifests itself causing collapse with relative regularity (the brief merely states "occasionally": that could mean five times a day or once a year etc) then it is advised that Joleon will be able to satisfy this criterion and complete his claim at law.
Subject to receipt of further particulars it is therefore advised that Dirk is liable to Joleon for his scald injuries. Unfortunately for Joleon the damages potentially claimable from Dirk are likely to be limited to compensation for the initial effects of the injury, because other injuries for which Dirk is not responsible intervene on the facts. To put it bluntly, it is not possible to claim for pain, suffering and loss for scald injuries on legs that have been amputated.
Advice to Dirk re the car crash
The same liability matrix applies to Dirk in relation to the incident that occurred in his car. The first question that must be asked is why he chose to drive Joleon rather than summon an ambulance? Joleon suffers further injury as a result of this decision, and as a result of Dirk's failure to fasten a seat belt around him. In combination the court is likely to find that Dirk has been grossly negligent. Moreover: Why does Dirk have a car, and why is he driving, given that he suffers from an illness that cause him to spasmodically lose all control of his legs? (!)
Dirk is likely to take a full share of responsibility for the consequences of the collision alongside Jermaine, who actually caused the collision. However, given that Joleon is unconscious and that his legs are subsequently amputated as the result of yet another person's negligence, Dirk's liability may be limited to the pain and suffering suffered up until amputation, which may result in him avoiding liability to pay substantial damages.
Advice to Victor
Victor adds to Joleon's injuries by pouring sulphuric acid onto his legs. This act was not motivated by malice but at first sight it appears to be a grossly negligent act given the proximity of a water supply. The same liability matrix that was applied in relation to Dirk's liability is applicable to Victor. When Victor voluntarily acted to assist in good faith he assumed a duty of care in regards to Joleon under Donoghue and Caparo. In terms of breach of duty the Blyth v Birmingham formulation as discussed above suggests that no reasonable "man" (see below for specific comment re Victor's age) would have poured liquid over Joloen without first checking what the liquid was. Victor's position would have been slightly better if the liquid was contained in an unmarked bottle, but the facts clearly state that the bottle was labelled and marked as containing acid. Victor's age mitigates in his favour, as does the fact that he is motivated by the highest ambition in giving assistance.
While Victor's age will certainly be taken into account by the court it does not provide him with a defence: see Gorely v Codd [1967]7. The appropriate standard of care is such that could be reasonably expected of an ordinary child the same age as Victor: see McHale v Watson (1966)8. On the facts it is advised that it may well be considered negligent not to have checked the clearly marked bottle before pouring the liquid.
It is advised that the issues of damage, causation and remoteness do not present an obstacle to the claim on the facts so they are not discussed in detail.
Therefore it is likely that Joleon has a claim against Victor, but any damages recoverable will be restricted to the initial effects of the acid, for precisely the same reason as that discussed in relation to the limitation of Dirk's liability: you cannot claim for the pain of acid burns on amputated legs.
That said, it is doubtful that Joleon would be motivated to pursue Victor with vigour on the facts. Victor is a child and therefore is unlikely to be worth suing. Generally speaking, parents cannot be made liable for the torts of their children: Barnes v Hampshire County Council (1969)9. Also the sympathy of the court will be with Victor, given his age and his heroic, albeit misplaced and inept attempts at first aid. The Compensation Act 2006 provides in section 1 that the court in considering a claim in negligence may take into account the fact that its ruling might: “(a) prevent a desirable activity from being undertaken at all, to a particular extent or in a particular way, or (b) discourage persons from undertaking functions in connection with a desirable activity.”
Therefore it is advised that while Victor is likely to be found technically liable, it is unlikely that a claim will be pursued against him given his age and the scenario that unfolded after his negligence and independent of it. If a claim is pursued any damages awarded would be minimal.
Advice to Jermaine
Jermaine is a recently qualified driver who causes further injury to Joleon after colliding with Dirk's car because he failed to check the road was clear. It is completely irrelevant that Jermaine is a newly qualified driver. Jermaine will be held against the objective standard of care that would be expected of a hypothetical 'reasonable man', namely that of a reasonably skilled and competent driver in all the circumstances. The question is not whether Jermaine did the best that he could, but whether his actions satisfy this objective benchmark: Muir v Glasgow Corporation (1943).
Nettleship v Weston (1971) offers further authority and is of direct relevance on the facts. In Nettleship a learner driver hit a lamp post and injured her driving instructor. The Court of Appeal confirmed that the standard of care to be expected of a learner driver is the same as that expected of any normal motorist. Roberts v Ramsbottom (1980)12 offers supporting authority on this point.
Jermaine will thus be found liable on the 5 point negligence matrix discussed above. His liability will be shared by Dirk. Joleon will not be considered to have been responsible for contributory negligence (as the plaintiff was in Froom v Butcher (1976)13 for failing to wear a seat belt) because he was unconscious when Dirk failed to fasten a seat belt around him. Jermaine's liability (and that of his insurer) will be limited by the causation issue inherent in the fact intervening medical negligence later results in the amputation of Joleon's legs for the reasons discussed above: see Joyce v Wandsworth Health Authority (1996).
Advice to Dr Gerard
Dr Gerard carried out an operation on Joleon that has been denounced vociferously in some medical journals. Further information and expert medical opinion is requested about Joleon's condition when he reached hospital. Further information and expert opinion is also requested on the nature of the operation performed, the chances of success and the other options available to Dr Gerard.
Hunter v Hanley (1955) offers foundation guidance on the question of medical negligence as follows: “the true test for establishing negligence in diagnosis or treatment on the part of the doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.”
This case should be considered in the context of Bolam v Friern Hospital Management Committee (1957)16, where a patient also suffered injury as a result of the use of some contentious medical practices. There was a difference of opinion in the medical profession about the appropriateness of the treatment given. It was held that a doctor will not be considered negligent if he has acted in accordance with a practice that is accepted as proper and reasonable by a responsible body of medical professionals skilled in that sphere. De Freitas v O'Brien (1995)17 added to Bolam by ruling that it is unnecessary to establish that the treatment has majority support within the medical profession, where at least some proportion of the profession is in support.
However, Dr Gerard must be advised that the case of Bolitho v City and Hackney Health Authority (1997) has advanced the law from the Bolam test. It was held by the House of Lords that the Bolam test is unsatisfactory. In Bolitho their Lordships stressed that the court must take steps to assure itself that the medical opinion relied upon is, in all the circumstances of the case, both reasonable and logical. Subject to the receipt of further information it seems there is a likelihood that Dr Gerard's choice to perform the much criticised procedure will be deemed to have been negligent on the facts. The consequences of the procedure certainly bear that conclusion out. Of course, more information is requested on this complex and substantial point, but if Dr Gerard is found liable then by the operation of principles of vicarious liability the hospital and health authority for which he works will also be found liable. It is therefore unlikely that Dr Gerard would be subject to personal liability on the facts given that his employers will have much deeper pockets and insurance to cover the claim. Bolitho is also a strong precedent on the issue of causation (as is the case of Allied Maples Group Ltd v Simmons & Simmons (1995) in regard to the liability consequences of findings on causation). However, while these authorities will be central to any claim made by Joleon, further advice on the technicalities of causation in this claim cannot be given until the essential information requested above has been supplied.
Liability will extend fully to include the amputation of Joleon's legs, given that the infection caused by the procedure performed by Dr Gerard is the direct and immediate cause of the amputation of Joleon's legs: an operation that was necessary to save Joleon's life. The amputation performed by Mr Cahill is not a novus actus interveniens (new intervening act) given that it flows naturally and directly from the infection suffered by Joleon. The 'but for' test indicates that the amputation of the legs would not have occurred but for Dr Gerard's negligence, so causation problems such as those encountered in the medical negligence case Robinson v Post Office (1974) will not arise to obfuscate the line of liability.
It is unknown whether Joleon regained consciousness at any time prior to the amputation of his legs. Mr Cahill will not be liable in tort for performing the operation without consent in this emergency situation and is protected by the defence of necessity: see F v West Berkshire Health Authority (1989).
Again section 1 of the Compensation Act 2006 may have a bearing on the court's decision, and the court will be wary of making a ruling on negligence that unjustly or unreasonably impedes medical treatment in future cases, but on the facts it seems that Dr Gerard can be advised that his employers are likely to be subject to the most substantial claim for compensation arising from this incident.
