Hospital Management Committee

In order to pursue a successful claim of negligence, The claimant must be able to prove the three elements. The claimant must prove the defendant owed them a duty of care as in the case Donoghue v Stevenson [1932] AC 562. The claimant must also prove the defendant breached that duty of care as in the case Nettleship v Western [1971 2 QB 691, Also the breach of that duty caused foreseeable damage as in the case Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428.

If the claimant is successful in proving all three element, they will be successful in proving negligence in court. The law of negligence was first established in the case Donoghue v Stevenson [1932] AC 562 in which Lord Atkins explained the neighbor principle and said, “the rule that you are to love your neighbor becomes in law, you must not injure your neighbor; and the lawyers question, who is my neighbor?

Receives a restricted reply. You must take reasonable care to avoids acts or omissions which you can reasonably foresee would be likely to injure your neighbor. Who then, in law is my neighbor? The persons who are so closely and directly affected by my act that ought reasonably to have them in contemplation as being so affected when I am directing my mind to acts or omission which are called in question. ”

Lord Atkins neighbor principle as been used in a number of cases such as, Anns v Merton London borough Council [1978] AC 782, Caparo Industries plc v Dickman [1990] 1 AII ER 568 and Bourhill v Young [1943] AC 92, were the three fold test was set, which must show these three elements, harm must be reasonably foreseeable as a result of the defendants conduct, the parties must be in a relationship of proximity and thirdly it must be fair, just and reasonable to impose liability.

The standard reasonableness of care in negligence never amounts to an absolute duty to prevent harm from others, it set standards, there fore the courts imposed the reasonable man test and if a defendant falls below the reasonable man test he as breach his duty of care for carelessness of others which causes damage as in the case Roberts V Ramsbottom [1980] 1 WLR 823, the classic statement given by Alderson B in Blyth Birmingham Waterworks Co [1856] 11 Ex 781:

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. The starting point for assessing where her the defendants breach of duty is a factual cause of the claimants damage is the ‘but for’ test. The basic test is whether the damages would not have occurred but for the breach of duty. The purpose of the but for test is to remove irrelevant causes.

On a balance of Probability this is an all or nothing approach to prove causation’s in the case Bonnington Castings Ltd v Wardlaw [1956] AC 613. The claimant must prove damages was caused by the breach of duty, the reason for denying the duty of care would be due to ’floodgates’ where the defendant might be exposed to liability for an in determination amount to an indeterminate class. This may be countered by the use of proximity to limit potential number of claimants as in the fire brigade case Capital & Counties plc v Hampshire County Council [1997] 2 All ER 865,

In the case involving Mr Carnell (the defendant) and his co worker Arnold the claimant, it would appear Arnold would have a case of liability against his employer as the incident took place at the workplace. Arnold and Mr Carnell were both employed by the tower crane company; Mr Carnell was doing his incompetent best in his job role, due to Mr Carnell’s negligence Arnold was squashed by a pallet of bricks then later died.

According to the principle from the case Wilsons v Clyde coal Ltd English[1938] AC, It would appear that Mr Carnell would not be held liable but its their employer who would be seen as liable as they had a duty of care under the Health and safety Act [1974]. Although in some cases employer’s have to provide employees with competent colleagues, It states that Mr Carnell was doing is ‘incompetent best’, so there for Mr Carnell lacked knowledge and skill in the job role he had been given. “An employer owes a personal duty to his employees” according to Lord Herschell in the case Smith v baker [1891] AC.

A tower crane company had a legal responsibility to provide a safe working environment and also employ staff who is competent in their job role. In the case where the lecture which was driving his fast car, then later crashed his car which resulted in crushing a lady called Margret, he could be found liable. The driver was not considered a good driver, but in the police report it stated he was driving carefully and reported that the car had been poorly maintained, which resulted in the wheel falling of which caused the accident.

In order for the claimant to win the case she must prove causation in fact. The claimant must prove a link between the incident and the injury as in the case Cork v Kirby Mclean Ltd[1952] 2 AII er 402. Lord Denning was quoted as saying “If the damage not have happened but for a particular fault then that fault is the cause of the damage; if it would have happened just the same fault or no fault, their fault is not the cause of the damage.

A case that is similar to this case study is Nettleship v Western [1971 2 QB 691, were a learner driver was found liable for injuring the passenger as a result of crashing in to a lamppost. The defendant was later convicted of driving without care towards other and attention. In the case Robert the trainee doctor who turned away Sarah at the accident and emergency, Robert owed Sarah a duty of care which he breached by failing to examine her, but in any case you must prove all three elements to pursue a successful claim in negligence.

The trainee doctor could not be held liable due to ratio decendi, if Robert had of examine Sarah, by the time all the test result had of came back and Robert had of treated Sarah the poison would have been so advanced that the treatment would not have worked in time to save Sarah’s life, regardless of the breach of duty, Robert would be found not liable for causation, as in the case Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428.

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