Mr Fogg should have done something to prevent the formation of (DVT). Mr Fogg complaint the airline upon landing which means he was about to disembarked but if he would have complaint well before during the journey then the air crew was responsible for helping him to move around and switch his seat as in the case of Olympic Airways v. Husain29 claimants husband had asthma where ambient cigarette smoking can be dangerous he asked for non-smoking seats but he was provided seats near to the smoking section despite the fact that they complaint to the airline and requested to give them seats further away from the smoking section.
The airline was held to be negligent. The litigation involves Mr Fogg complaining for the blood clot. The airline is only liable if the damage so sustained is caused by an accident as stated in 1929 Warsaw Convention treaty30 Article 17 states that “The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft … ” The conditions of SimpleFlight.
com were not unusual or unexpected then the standard he choose for his travel as in the case Emma Moore V hotel plan31 where under the holiday contract the tour operator was liable for the damages received by the claimant even though the injuries were caused by the third party’s breach of duty. Mr Fogg was only in contractual relationship with 80 Day Tour Travel. Similar in the case Trevor [2009]32 it was held that tour operator is liable for the negligence by the suppliers for not taking precautions to secure a bed from collapsing.
Sitting in a cramped position give raise to the formation of blood clot in the deep veins of the legs so called “economic class syndrome” similarly in the case of Scherer v Pan American World Airways Inc33 was held that the condition has not been caused by an art 17 “accident” Mr Fogg could have included in his hand language a pair of tight stockings by wearing of it can have prevented the raise to blood clot to back up my point I have the case of Church of Latter-Day Saints v Yorkshire Fire Authority34. His own choice attributed for developing the risk of blood clot because of his unhealthy choice.
In my judgement SimpleFlight. Com is not liable for the consequent damages suffered by Mr Fogg and the evidence suggests that it is unjust and unreasonable to impose negligence by the SimpleFlight. Com. Passepatout NHS Trust is Liable under Negligence and Trespass to the person Under the doctrine of respondeat superior35 Passepatout NHS Trust is vicarious liability36, for the negligent act and omissions of doctor case example Edmonds v Chamberlain Memorial Hospital37 where it is said it rely on the hospital to choose the doctor.
By looking at case of Viasystems (Tyneside) Ltd v Thermal Transfer [2006]38 it maintains that vicarious liability is the entire liability and Docks and in Harbour Board v Coggins and Graffith Ltd [1947]39 case Lord Macmillan stated: “That the crane driver was in general the servant of the appellant board is indisputable. The appellant board engaged him, paid him, prescribed the jobs he should undertake and alone could dismiss him. ” The hired employee is in charge but the real control and responsibility is of the institute/employer because it has ultimate authority to dismiss.
It is obvious that the NHS is liable of negligence to this claim. NHS Trust owes a duty of care to Mr Fogg under the neighbour principle of Lord Atkins. 40 Contrarily to the case of Blyth v Birmingham Waterworks (1856)41 Mr Fogg suffered professional medical negligence42 not general negligence the standard of care should have been fulfilled. I shall apply the Bolam test43 which states “If a doctor reaches the standard of a responsible body of medical opinion, he is not negligent”.
This lacks in the case of Mr Fogg and the doctor should have taken in account all the precautions. Lord Esher stated “whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognise that if he did not use ordinary skill and care in his own conduct with regard to those circumstances he would cause danger or injury to the person or property of the other, a duty arises to use ordinary skill to avoid such danger”.
It was shown in Bolam46 and Jones v Fay47 case once the duty of care is breached the claimant is capable to be compensated. Mr Fogg complained upon landing at the London airport and visited the local hospital, under Passepartout NHS Trust, where the doctor advised him that there was nothing to worry about and that the pain would subside in a couple of days. I see unprofessional attitude feedback from the doctor by looking at the expert medical evidence which signifies DVT.
The doctor was aware that Mr Fogg has just landed and had travelled the doctor should have called for X-ray or MRI scans. With the help of direction of McNair J. Bolam-Bolitho48 test it proves the breach of duty of care and negligence by the doctor when the doctor conducts the inspection. Whereas Mr Fogg was under the anaesthetic therefore was unable to consent, but the doctor without Mr Fogg`s consent, made couple of incisions with a scalpel in the area of the blood clot and failed to locate the blood clot.
Mr Fogg agreed for the anaesthetics it does not mean he agreed for incisions. In the case of Paula Thomas 49 the medical doctor negligently caused grievance to the claimant because of the doctor’s incorrect observation. It also suggests unreasonable medical practice because expert evidence shows that blood clot can be located by X-ray and MRI scans therefore the doctor did not apply proper surgical procedure, Hutchinson50 the doctor failed to diagnose in the hospital. In the case Alice Mary v John Aymard 51 doctor failed to give proper advice.
Consent must be informed and voluntary, and the person must be capable to decide52. Under HCCA53, 1996 section 10 states that there should be no treatment without consent. Consent must be expressed54 to be deemed and Mr Fogg only consented for anaesthetic, not for the incisions. Doctor held the treatment without examination and informing55 Mr Fogg as in the case of Janet 56 the MRI scans were not available for the patient (claimant), the defendant was liable for not informing the patient about the risk without MRI.
Incisions amount to the trespass as said by Lord Steyn57-“Surgeon owes a duty of care to a client describing to him the injuries which he might sustain”. Mr Fogg was not informed by the doctor of the risks the claim is valid to make under both negligence and trespass to person Sidaway v Bethlem Royal Hospital Governors [1985]58 when it is remote side effects elaborate explanation may not be required to treat the main dangerous pronlem so Bolam test is irrelevant as said by Lord Scarman.
But doctor caused Mr Fogg’s death not using MRI scanning which would have suggested the right treatment therefore he breach of the duty of care. In Chester v Afshar59 case “But for Test” for satisfied and doctor has therefore violate the right of Mr Fogg to choose. Doctor is liable for the trespass to person60 F v West Berkshire Health Authority. 61Because there was no need of emergency62 treatment without consent63 implied consent is also unjustifiable case in point Airdale NHS Trust v Vland [1993]64.
The evidence that Mr Fogg died after two days of the medical malpractice amount to trespass to the person and negligence by Passepartout NHS Trust case in point Mr Leslie Burke v GMC. Majrowski v guy’s and Mr Leslie Burke v GMC [2005] EWCA 1003 [2005]65 Vicarious liability in regards to Passepartout NHS Trust can be understood by the case, Barnett v Chelsea66 which suggest that if the doctor would not have act negligently than Passepartout NHS Trust would not have been liable too, and also in the case of Wilsher v Essex 67 it was enough to decide when the hospital caused injury these cases also illustrate the same point Bailey v Ministry 68 and Fairchild v Glenhaven 69 the employer increased the risk by keeping such a doctor in practice.
Tankship (UK) Ltd v Morts Dock70 where it was held the D is liable for fouling similarly That is may be by foul that Passepartout NHS Trust hired the doctor but is still liable. To conclude the case I hold NHS trust liable for the breach of duty of care towards the claimants husband Mr. Fogg simple flight are not liable due to the fact they were contracting on behalf of 80 day tour travel. WORD COUNT: 2361