Original post by lawobiterGenerally, where there is an established duty of care (such as the established duty between road-users), you do not need to do ponder whether or not one exists – i.e. by exploring the neighbour or Caparo tests. You do, however, need to explore whether or not there has been a breach of that duty and whether or not the breach is the immediate or material causation to the harm. In assessing whether or not Peter has breached his duty of care, the court will apply an objective test to ascertain whether, in consideration of the circumstances, the reasonable man would or would not carry act such acts or omissions (Blyth v Birmingham Waterworks). Once a breach is apparent, you should explore whether or not the factual and legal causation tests are met.
There must be a causal link between Roger's injuries and Peter's breach of the duty of care. First, it must be established that Roger's injuries were the factual cause of his loss, in the sense that the injuries would not have occurred 'but for' Peter's negligence. Here, you should apply the 'but for' test (Barnett v Chelsea & Kensington Hospital [1969]).
The second scope of liability is the question of law in relation to novus actus intervenes and remoteness. Peter is only responsible for types of loss that are a reasonably foreseeable consequence of his negligence. In The Wagon Mound (no 1) [1961] AC 38, it was held that if a reasonable person would not have foreseen the damage, it cannot be recovered. Likewise, there must be no intervening factor which breaks the chain of causation (novus actus interveniens). Of relevance is Susan's actions. If Susan’s acts were foreseeable as a result of her negligence, the chain of causation remains. You must discuss whether or not the chain is still unsevered this can be done by discussing the original uinjuries suffered and whether or not the actions thereafter constitute a break.
There is a long-established principle that a person must take their victim as they find him (Smith v Leech Brain & Co [1962] ). Therefore, even if brain damage is an unforeseeable circumstance as to Peter’s original breach of duty, he must take him as he finds him and he will be liable, notwithstanding the lack of foreseeability. The first question to posit is: would Roger have suffered the brain injuries but for Peter's negligence? If yes, factual causation may not be met. If Roger already had pre-existing brain injuries and the crash materially exacerbated that, is he liable under the egg skull shell rule? You should analyse and either apply and disregard causation. Are their multiple causes? Could both parties be held liable for the injuries? – i.e. Peter with respect to the original crash and possible furtherance of the injuries and Susan failing to do what a reasonably prudent doctor would do? Again, a bad result does not necessarily render it negligence; it must be demonstrated that her actions fell far below that of a doctor in the relevant community. Apply the Bolitho test (described below).
Susan
It is clear that Susan owes a duty of care to Roger as a doctor; however, it must be determined that she was in breach of her duty and that the breach was the cause of the harm.
To prove a breach of duty on the doctor’s part, you should apply the Bolam test. In Bolam v Friern Hospital Management Committee [1957] it was held, inter alia, that a doctor will not be considered negligent if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Notwithstanding that, if she did act in accordance to accepted practices, but the conclusion was illogical, she will still be negligent (Bolitho (Deceased) v City and Hackney HA [1993]). It does not matter that Susan is a trainee; she is adjudged to owe the same standard of care as a qualified doctor (Willsher v Essex Area Health Authority [1988]). Her experience does not negate any supposed liability on her part.Therefore, any breach rests on whether or not her actions would be considered reasonable by the majority of other doctors. It is not enough to show that another doctor would have acted differently.
Having proved a breach of duty, it is necessary to demonstrate that the breach of duty caused the injury.
Factual causation may be established by the standard “but for” test, that is, “but for” the negligence, would the claimant have suffered loss? If the answer is yes, factual causation is not present; if the answer is no, then it is present. Again, the original crash is of pertinence. Legal causation must also be established. You should apply the test of novus actus interveniens and remoteness. It has been held that for medical treatment to break the chain of causation, it must be grossly negligent. You should consider mutitiple discreet causes - i.e. where there are a number of agents but only one of which was the result of the Defendant's negligence (Wilsher v Essex AHA). Likewise, are there multiple cumulative causes? For example, where a nuber of "agents" can be shown to materallt contributed to an indivisible injury, the defendant will only be liable if one of those agents is the result of his negligence. If applicable, is the injury divisible and did the negligene has more than de minimis contribution to it?
Next, you should consider whether loss of chance applies; that is, with reasonable care, would the injury have been diagnosed earlier – and, if so, would that have made a difference? There must be more than 50% chance that Roger would have survived the injuries had there been an earlier diagnosis (Hotson v East Berkshire HA). The proximity of time between the original purported negligence (e.g. the misdiagnosis) and the collapsing is of relevance here. It is less than probable that Roger would have been cured over a period of 24 hours. It is for a medical expert to demonstrate that Roger is worse off on account of Susan discharging him.
Again, with regards to liability you should determine whether or not either or both are liable for the injuries based on the tests of causation. Where both parties are adjudged to be responsible, the loss may be apportioned between those parties (Webb v Barclays Bank Plc and Portsmouth Hospitals NHS Trust [2001).