Tolive123
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Can someone please help me outline the structure/points for this past paper question?
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Catherine1973
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isn't it mostly about what standards of duty of care are expected and did this breach that standard?

(off top of my head its Bolam with a bollivo gloss or maybe other way round)

there does seem to be a lot of extraneous facts in the question when really its just - dr didn't spot something, should they have?

Maybe Contributory negligence as a defence if she didn't act rationally herself.

But for all tort negligence it's pretty standard structure (off top of my head again)

Did they owe a duty of care
what standard owed and did they breach it
causation then remoteness, then any defences.
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Nightwish1234
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Hi, classic structure for any negligence problem question is 1) was there a duty of care? 2) was this breached 3) did the breach cause the harm 4) is this actionable harm
DoC: So, it's safe to say a duty of care was owed - it is well established that GP's and other classes of medical professionals owe their patients duties of care (Darnely v Croydon may be cited here if you need precedent).

Breach: To establish breach you need to demonstrate they fell bellow the standard of a reasonably competent person acting in the same position - the facts here flag up two issues you should consider: firstly, what is a reasonable standard, secondly, does his competency and experience offer any mitigation? Bolam finds that there will be no breach if the defendants practice is accepted by a body of experts in that field (n/b this does not mean they can obstinately follow an old technique if it is contrary to a substantial body of informed opinion) - we aren't told if his practice followed practice guidelines, so this may be a problem. FB v Princess Alexandra Hospital (a case of a junior doctor acting in A&E, which he was not fully competent for) holds that the level of responsibility is that at the level you are acting, the defendants background will not elevate of diminish this. So - he is to be held to the standard of a GP.

We aren't actually told if he acted below this standard - perhaps a different GP would have made the same incorrect diagnosis. You could argue either way here, but the fact the ambulance crew diagnosed her 'immediately' suggests he may be in breach.

Harm and Causation: Assuming that Dr Clifford did fall below the standard of a reasonably competent general practitioner and was thus in breach, you need to see if the harm the claimant suffered was a result of this breach. 'But for' Dr Clifford's actions, would she have suffered the harm in the same way? You are told that had she had antibiotics earlier she would likely not have suffered the same harm
You may want to question whether her wait of 8 days breaks the chain of causation - but you would struggle to prove this in my opinion, as she was highly likely to not suffer this harm if treated correctly.

Thus as the earlier user commented, the real contentious part is finding the breach, the rest seems a lot of extra information without much use.
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Tolive123
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(Original post by Nightwish1234)
Hi, classic structure for any negligence problem question is 1) was there a duty of care? 2) was this breached 3) did the breach cause the harm 4) is this actionable harm
DoC: So, it's safe to say a duty of care was owed - it is well established that GP's and other classes of medical professionals owe their patients duties of care (Darnely v Croydon may be cited here if you need precedent).

Breach: To establish breach you need to demonstrate they fell bellow the standard of a reasonably competent person acting in the same position - the facts here flag up two issues you should consider: firstly, what is a reasonable standard, secondly, does his competency and experience offer any mitigation? Bolam finds that there will be no breach if the defendants practice is accepted by a body of experts in that field (n/b this does not mean they can obstinately follow an old technique if it is contrary to a substantial body of informed opinion) - we aren't told if his practice followed practice guidelines, so this may be a problem. FB v Princess Alexandra Hospital (a case of a junior doctor acting in A&E, which he was not fully competent for) holds that the level of responsibility is that at the level you are acting, the defendants background will not elevate of diminish this. So - he is to be held to the standard of a GP.

We aren't actually told if he acted below this standard - perhaps a different GP would have made the same incorrect diagnosis. You could argue either way here, but the fact the ambulance crew diagnosed her 'immediately' suggests he may be in breach.

Harm and Causation: Assuming that Dr Clifford did fall below the standard of a reasonably competent general practitioner and was thus in breach, you need to see if the harm the claimant suffered was a result of this breach. 'But for' Dr Clifford's actions, would she have suffered the harm in the same way? You are told that had she had antibiotics earlier she would likely not have suffered the same harm
You may want to question whether her wait of 8 days breaks the chain of causation - but you would struggle to prove this in my opinion, as she was highly likely to not suffer this harm if treated correctly.

Thus as the earlier user commented, the real contentious part is finding the breach, the rest seems a lot of extra information without much use.
Thank you so much!!!! I really appreciate it
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Pythian
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(Original post by Tolive123)
Thank you so much!!!! I really appreciate it
It's a shame that you didn't give anyone any of your own ideas. Is that because you don't have any? You just copy & pasted everything shamelessly. I am sure you'll copy and paste Nightwish1234's answer in your essay. She did the working out and you'll get the credit.
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Tolive123
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(Original post by Pythian)
It's a shame that you didn't give anyone any of your own ideas. Is that because you don't have any? You just copy & pasted everything shamelessly. I am sure you'll copy and paste Nightwish1234's answer in your essay. She did the working out and you'll get the credit.
I did have my own points obviously 😂 i had an idea about the structure/cases but just wasnt too sure if it was correct and Nightwish1234 only gave me a guidance not the actual answer hmmm im sure you would have of picked up on that but.....If Nightowl1234 doesnt have a problem then who are you to say anything 😂. Strange how to referred to Nightwish1234 as “She” as if you know who that person is in order to justify their gender.
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Tolive123
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Also that question is from a past paper so how can i get credit when its just for my own practice and understanding 😂
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Nightwish1234
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Of course it’s lovely to see when students attempt questions beforehand, and it can be helpful to see their thought process when posting questions so we can offer constructive criticism, however I don’t believe I gave her/him the full answer. The content I provided would afford students a 2:2 at best - there is a lot of development required to make it a complete answer. Perhaps it is worthwhile posting your thought process in future, so we can help guide you in reaching the right answer, but equally we don’t know your circumstances so there is no benefit to gain by making any presumptions about your work ethic.

Regarding my gender, Pythian made no assumptions - this is shown on my TSR profile
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Tolive123
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(Original post by Nightwish1234)
Of course it’s lovely to see when students attempt questions beforehand, and it can be helpful to see their thought process when posting questions so we can offer constructive criticism, however I don’t believe I gave her/him the full answer. The content I provided would afford students a 2:2 at best - there is a lot of development required to make it a complete answer. Perhaps it is worthwhile posting your thought process in future, so we can help guide you in reaching the right answer, but equally we don’t know your circumstances so there is no benefit to gain by making any presumptions about your work ethic.

Regarding my gender, Pythian made no assumptions - this is shown on my TSR profile
Also i know that tort law has a lot of case law however how many cases do you think i would need to mention for this problem question
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Tolive123
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Would i need to mention the Caparo Test too?
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Nightwish1234
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(Original post by Tolive123)
Would i need to mention the Caparo Test too?
Considering the Caparo test is only necessary where the duty of care is not established - there is a very well established DoC in GP/Patient relationships - so no. If you had spare time, you could mention it, but I don't see what it would add to your answer. If anything, it might suggest you aren't aware of when there is or is not a duty of care.

(Original post by Tolive123)
Also i know that tort law has a lot of case law however how many cases do you think i would need to mention for this problem question
There is no formula here - if you follow the IRAC structure (Issue, Rule, Apply, Conclude) one would think there is a bare minimum of one case per issue you consider. Don't throw cases in just for the sake of showing you really studied your case list - e.g. with caparo above, we know theres a DoC between healthcare practitioners and their patients. On the other hand, for contentious points you may well want 2-3 different cases to explain why its contentious, as with the Breach section where I mentioned Princess Alexandra and Bolam.
Is this for degree or A-Level? Sometimes you can discuss the rule and need for reform or departure at Uni level, and then in so doing bring in more literature or cases. As a general rule of thumb, 1-3 for each issue you identify.

(Original post by Tolive123)
I have another question regarding the problem question - Could you argue that Dr Clifford could not be held liable because she fell into a coma as soon as she got home therefore even if he had diagnosed her correcly she would have of gone home and still had a coma? GP usually dont administer antibiotics straight away it takes time to get them via pharmacy and therefore during that time the damage would be done therefore its all actually dependent on the fact that she should have not left going to the GP after 8 days? Not too sure if that made sense but..
I'm not entirely convinced by this argument, although yes it could be used. Firstly, because in my experience, after a GP appointment one collects the prescribed medication almost immediately after. Secondly, (weaker argument) because if this was an urgent condition perhaps an ordinary GP would have told her she needs urgent treatment, and not told her to go home and take medication whenever suited her.
However, yes, it is a possibility that even if he had been correct in his diagnosis, she would not have taken the antibiotics until she went home. The fact it was an immediate collapse helps this argument, I would just not rely on the fact that 'it takes time to get them from the pharmacy', shift the argument to most people don't take the medication the moment they leave the practice/pharmacy rather waiting until they are home.
Discuss this argument, but don't rely on it - say it's a possibility that he is not liable, then go on and explore the rest in full.
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Tolive123
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(Original post by Nightwish1234)
Considering the Caparo test is only necessary where the duty of care is not established - there is a very well established DoC in GP/Patient relationships - so no. If you had spare time, you could mention it, but I don't see what it would add to your answer. If anything, it might suggest you aren't aware of when there is or is not a duty of care.


There is no formula here - if you follow the IRAC structure (Issue, Rule, Apply, Conclude) one would think there is a bare minimum of one case per issue you consider. Don't throw cases in just for the sake of showing you really studied your case list - e.g. with caparo above, we know theres a DoC between healthcare practitioners and their patients. On the other hand, for contentious points you may well want 2-3 different cases to explain why its contentious, as with the Breach section where I mentioned Princess Alexandra and Bolam.
Is this for degree or A-Level? Sometimes you can discuss the rule and need for reform or departure at Uni level, and then in so doing bring in more literature or cases. As a general rule of thumb, 1-3 for each issue you identify.


I'm not entirely convinced by this argument, although yes it could be used. Firstly, because in my experience, after a GP appointment one collects the prescribed medication almost immediately after. Secondly, (weaker argument) because if this was an urgent condition perhaps an ordinary GP would have told her she needs urgent treatment, and not told her to go home and take medication whenever suited her.
However, yes, it is a possibility that even if he had been correct in his diagnosis, she would not have taken the antibiotics until she went home. The fact it was an immediate collapse helps this argument, I would just not rely on the fact that 'it takes time to get them from the pharmacy', shift the argument to most people don't take the medication the moment they leave the practice/pharmacy rather waiting until they are home.
Discuss this argument, but don't rely on it - say it's a possibility that he is not liable, then go on and explore the rest in full.
Is the case Wilsher v Essex [1988] a good case to mention for establishing a duty of care or would it be used to establish a breach of duty?

also could I use Hedley Bryne v Heller for duty of care and say there is a “special relationship” between Dr Clifford and Sarah

Should I also mention whether the damage caused actually constitutes to a harm?
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Nightwish1234
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(Original post by Tolive123)
Is the case Wilsher v Essex [1988] a good case to mention for establishing a duty of care or would it be used to establish a breach of duty?

also could I use Hedley Bryne v Heller for duty of care and say there is a “special relationship” between Dr Clifford and Sarah

Should I also mention whether the damage caused actually constitutes to a harm?
The ratio to be taken from Wilsher v Essex is regarding indivisible/divisible harm when considering causation (as the facts center around what caused the baby's blindness, as it could have been either the oxygen provision or the other four factors.) and the standard a junior doctor owes (the same as a qualified doctor). It obviously reflects the large body of case law findings a DoC between healthcare practitioners and their patients, but I don't think you need a case to establish this point - it is just fact. You could use it to reinforce the Princess Alexandra case regarding the standard of care at which a less experienced practitioner is to be held.

Again, the duty of care is just accepted - Hedley Byrne focuses more about assumption of a DoC (i.e. where it is not well established). I think you might be overthinking this point.

I'm not exactly sure what you mean by your third question - she suffered physical harm (loss of sight/hearing). The issue is whether there is a causal link between his actions and the type of harm suffered (most recent case law on the area is Khan v Meadows which emphasised the SAAMCO test over the 'but for' test).
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Nightwish1234
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(Original post by Tolive123)
You stated to use the case Darnely v Croydon for showing there is a duty or care owned but that case is in relation to a receptionist and a patient instead of a doctor/ patient? Is that relevant to use??
The reason I mentioned Darnley was the judgement (although focusing on DoC's between receptionist and a person attending urgent care) explicitly makes clear that if this were between a healthcare professional the matter would not be contentious. There is no need to mention any case law (in my opinion!) for this duty, but if you will, I would just find a judgement that makes it clear in obiter or as the ratio decidendi that healthcare professionals owe their patients duties (other ones could be say ABC v St George, which considered the scope of the duty).
In my previous comment my reasoning was more there is no need to apply Caparo or Hedley Byrne as theyre for where duties aren't established and, off the top of my head, these are not even medical cases.

Take what I say with a pinch of salt - I haven't studied tort law since my second year of university.
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Tolive123
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(Original post by Nightwish1234)
The reason I mentioned Darnley was the judgement (although focusing on DoC's between receptionist and a person attending urgent care) explicitly makes clear that if this were between a healthcare professional the matter would not be contentious. There is no need to mention any case law (in my opinion!) for this duty, but if you will, I would just find a judgement that makes it clear in obiter or as the ratio decidendi that healthcare professionals owe their patients duties (other ones could be say ABC v St George, which considered the scope of the duty).
In my previous comment my reasoning was more there is no need to apply Caparo or Hedley Byrne as theyre for where duties aren't established and, off the top of my head, these are not even medical cases.

Take what I say with a pinch of salt - I haven't studied tort law since my second year of university.
Thank you i will look into that case!!

In the problem question i dont think the “but for” test is satisfied because even if Sarah didn’t go to the GP (regardless of Dr Clifford incoorect diagnosis) she would have of still had the same outcome (loss of sight + hearing) shown in the case Barnett v Kensington & Chelsea Management Committee (1969) however there was a material increase of risk and will the case Bailey v MoD [2008] back this point up? Would you say my analysis is correct that the “but for” test is not satisfied?

im really not sure as it did say that If antibiotics were administered there would be a low chance of the harm being present therefore the “but for test” would apply as it was dependent on DR Clifford giving the correct analysis.
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Tolive123
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Could i also mention “loss of chance” and use the case Gregg v Scott [2005] to back up my point?
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Pythian
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(Original post by Tolive123)
I have another question regarding the problem question - Could you argue that Dr Clifford could not be held liable because she fell into a coma as soon as she got home therefore even if he had diagnosed her correcly she would have of gone home and still had a coma? GP usually dont administer antibiotics straight away it takes time to get them via pharmacy and therefore during that time the damage would be done therefore its all actually dependent on the fact that she should have not left going to the GP after 8 days? Not too sure if that made sense but..
This is something that I was thinking off, and you most definitely need to mention it. It feeds into critical analysis of a problem question. To get a first, every single nugget of information in the problem question needs to be analysed.

It's the classic 'but-for' test: Barnett v Chelsea & Kensington Hospital. You should mention it & discount it (if you wish).
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Pythian
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(Original post by Tolive123)
Would i need to mention the Caparo Test too?
Caparo is a pure economic loss case which is a whole different area in the Tort of negligence. The same with Hedley Byrne v Heller. As nightwish says, it's only relevant if we have a new type of relationship. This was established in the SC in Darnley v Croydon and Steel v NRAM (Lord Wilson). This is not the case here. We have a situation with a deep historical jurisprudence.
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Pythian
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(Original post by Nightwish1234)
The ratio to be taken from Wilsher v Essex is regarding indivisible/divisible harm when considering causation (as the facts center around what caused the baby's blindness, as it could have been either the oxygen provision or the other four factors.) and the standard a junior doctor owes (the same as a qualified doctor). It obviously reflects the large body of case law findings a DoC between healthcare practitioners and their patients, but I don't think you need a case to establish this point - it is just fact. You could use it to reinforce the Princess Alexandra case regarding the standard of care at which a less experienced practitioner is to be held.

Again, the duty of care is just accepted - Hedley Byrne focuses more about assumption of a DoC (i.e. where it is not well established). I think you might be overthinking this point.

I'm not exactly sure what you mean by your third question - she suffered physical harm (loss of sight/hearing). The issue is whether there is a causal link between his actions and the type of harm suffered (most recent case law on the area is Khan v Meadows which emphasised the SAAMCO test over the 'but for' test).
Indeed.

The House of Lords in Wilsher v Essex AHA confirmed that junior doctors owe the same duty of care as fully qualified doctors. The fact that our doctor is inexperienced is of no relevance. Wilsher also concerns situations where there are a number of potential causes to the injury. If so, it falls to the claimant to maintain the likilihood of causation. That part doesn't seem v. relevant.
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Pythian
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(Original post by Tolive123)
Could i also mention “loss of chance” and use the case Gregg v Scott [2005] to back up my point?
Does this help you?

In Tort, generally, courts will not compensate claimant for "loss of chance" if that chance is less than 50%. We don't have any stats to help guide us on this point.
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