DUTY OF CARE 1) Parties
3) Defences
2) Cause of action
4) Advice - 3 heads of damages:
§ General damages ∴ put claimant in a position as if tort ≠ committed
DOCTOR’S DUTY TO WARN
• Duty to diagnose / treat / warn of significant risks > every risk
§ Special damages: Out-of-pocket expenses, e.g. baby clothes • Objectively significant:
• Q) Established category? § Costs of raising child: Up to age of majority 1) Bolam test
o Employer/employee: Hatton - Court: May recover general + special damages, but not costs of raising child Sidaway
o Doctor/patient: McFarlane 1) Doctors assume responsibility for physical well being of child, not economic loss - Neck pain, 1% spinal damage ≠ disclosed
o Teacher/pupil: Lewis 2) Benefits can’t be calculated to offset the burdens - No reasonable body of medical opinion would disclose this risk
o Transport operators/passengers: Silverlink 3) Disproportionate to place liability on raising healthy child
o Prison officer/prisoner: Dorset Yacht 4) Distributive justice: Other claimants = ↑ deserving, e.g. suffering physical injury Chester
o Manufacturer/consumer: Donoghue 5) Blessing - Back pain, 1-2% nerve damage ≠ disclosed
- Medical opinion would disclose b/c serious
• If novel, use Caparo test: Cattanach à Australian case
Caparo - Costs of raising child = recoverable 2) Modified Bolam, unless court considers practice = unreasonable
1) Is harm reasonably foreseeable? 1) Deeper pockets w/ doctor’s insurers > parents § Highly anxious patient?
2) Proximity? 2) Sought sterilization ∴ parents didn’t think it was a blessing § Patient requires risk to be disclosed for employment purposes?
3) Public policy reasons: Must be fair, just + reasonable to impose DOC on D § Patient’s history, e.g. bad experience w/ operations
• Disabled child
REASONABLY FORESEEABLE § Patient has physical condition that makes risk ↑ important to them?
Parkinson
• DOC owed to foreseeable victim of harm/class > world at large - Wanted to limit family to 4 children, but sterilization negligently performed + conceived disabled child
3) Material risks test: Would a reasonable patient expect risk to be disclosed?
• Objective test: Would reasonable person in D’s position foresee risk of harm? - Court: Cost of raising child = directly linked to child’s disability e.g. education costs, house adjustments
Pearce
Long Island Railroad - But ordinary costs of raising child ≠ recoverable, e.g. food, clothes
- Recommended a natural birth, 0.1% risk of stillbirth ≠ disclosed
- Dropped package of fireworks + injured X on platform ≠ foreseeable harm
• If mother = disabled - Reasonable patient wouldn’t expect risk to be disclosed b/c low probability
Claimant = susceptible to injury ≠ egg-shell skull rule Rees
Haley - Blind ∴ couldn’t cope w/ raising child, but sterilization negligently performed = conceived healthy child • Not informed of alternative treatments:
- Blind man tripped into trench = injured - Court: Breached her autonomy to not have a child b/c disability Birch
- Court: Reasonably foreseeable a blind man would walk down the street - Steyn: Judicial creativity went too far - 1-2% risk of stroke = disclosed, but not told about MMR scan (no risk of stroke)
- Causation: If warned, she wouldn’t have undertook angiogram
Unborn claimants Wrongful birth claims
• Common law: • Parental claim: Doctor failed to detect disability in utero. If parents knew = abort. • Subjectively significant = important to particular patient
Burton o 1) Must be disabled child Rogers à Australian case
- DOC owed to unborn child = actionable on birth o 2) Abortion lawfully available when breach occurred - Operation to restore eyesight. Doctor assured her good eye would be safe, but both eyes blinded
Rance - Recovered damages b/c it was important to her
• S1 Congenital Disabilities (Civil Liability) Act 1976: Foreseeable claimant if child injured in utero - Doctor failed to detect at 26 weeks: Abortion ≠ lawfully available
o Child claim: Must be born alive w/ negligently inflicted injuries, not naturally occurring o 3) Mother would have undergone an abortion CLAIMANT DIES
• S2: Mother has immunity for negligence, except for negligent driving b/c insured Lee • Claimant’s estate can bring action:
- Both parents suffered epilepsy ∴ ↑ risk of foetal abnormality o Law Reform (Miscellaneous Provisions) Act 1934: Limited damages
PROXIMITY - High-resolution ultrasound to ensure healthy child + told doctor she’d terminate if disabled child o Fatal Accidents Act 1976: Recover damages for loss of dependency, e.g. income
Geographical proximity - Would have incurred costs of raising healthy child ∴ only awarded extra costs of raising § Period between negligence + death
Dorset Yacht disabled child Hicks
- Prison officers left Borstal boys unsupervised at night ∴ damaged claimant’s boat - Daughters lost consciousness for 3 mins ∴ recover damages within that period
- Geographically close: Small class of persons at risk = proximity Wrongful life claims
§ Not financially dependent on minors ∴ FA ≠ relevant
• Child claim ≠ lawful, b/c cannot argue they shouldn’t exist
Lewis Essex
- Kindergarten teacher left child (4) unsupervised, b/c attended to another child - Mother exposed to measles ∴ severely disabled child
- Child collided w/ lorry + driver died
- Court: L = one of a class of road users ∴ anyone could have been hit by kid ≠ proximity
- Banned in English law:
1) Duty cannot be to destroy child, b/c breaches sanctity of life BREACH OF DUTY
2) Cannot compare existence of disabled child to non-existent child ∴ cannot quantify damages
Palmer v Tees
- Before releasing psychiatric patient, Armstrong said he had sexual feelings towards minors Barristers SET STANDARD OF CARE
- Missed hospital appointments + ↓ supervision ∴ raped + murdered Rosie Palmer (4) • No immunity • Standard of reasonable man ≠ standard of perfection
- Rosie = one of general public at risk of Armstrong’s activity, no special risk ≠ proximity Simons
D’s particular characteristics
1) Other professions ≠ immune
Knowledge proximity Age = suppresses standard of care
2) Public confidence in legal system
Dorset Yacht • Extremely young
3) Weeds out “bad eggs”
- In prison ∴ officers knew of their criminal tendencies = proximity Lewis
OMISSIONS - Child ≠ negligent for wandering onto road
Lewis • No duty to rescue: Stovin v Wise
- Teacher knew kids act unpredictably = knowledge proximity o 1) Causation issue • Child expected to reach standard of “ordinarily prudent + reasonable” X-aged child in D’s position
o 2) Restricts autonomy Mullin
Hill o 3) Why place burden solely on 1 person? - Sword fight (15) w/ rulers = snapped + blinded ≠ breach
- Jacqueline Hill = last victim of Yorkshire Ripper (Peter Sutcliffe) o 4) Floodgates - Reached standard of care reasonably expected of 15 year old
- Mother argued police were negligent in capturing him
- Police didn’t know who Yorkshire Ripper was ≠ proximity Exceptions Inexperience
1) Special relationship: D fails to control 3 rd party: Dorset Yacht • Professional context: Inexperience ≠ suppress standard of care
Temporal proximity Wilsher
Palmer v Tees 2) D creates source of danger
Haynes v Harwood - Junior doctor put capita in vein > artery = blinded baby ∴ breach
- 12 months between release + damage ≠ proximity
- D left horse unattended = bolted ∴ injured policeman = DOC
• Non-professional:
Relational proximity - Reasonably foreseeable that any noise would spook horse, especially in school area
Weston
• Pre-existing relationship ∴ assume responsibility for C’s welfare - Inexperienced driver hit lamppost = broke N’s leg
Topp
• If D exerts ↑ control over C = ↑ relational proximity - Standard applied to a new driver = that of an experienced + skilled driver
- Bus left unattended w/ keys in ignition = stolen + killed T ≠ DOC
PUBLIC POLICY: Fair, just + reasonable to impose liability? - Haynes horse = inherently dangerous vs. bus requires human intervention
Dangerous sports / recreational activity
Police in criminal investigations à Michaels / Osman
3) D knew/ought to have known 3 rd party created danger on his property + failed to take reasonable steps to • Lower standard of care: D must not show reckless disregard for claimant’s safety
Hill o Inherent risk / makes urgent decisions / participants + spectators voluntarily accept risk of physical harm
prevent
- Public policy reasons precluded imposing DOC on police - Sumner
Goldman
1) Defensive practices = fewer arrests - Cameraman at horse show = injured
- Tree caught on fire + spread to neighbour’s property = DOC
2) Diverts resources for litigation > investigating crime - No reckless disregard b/c told him to step back + rider controlled horse
1) Experienced landowner knew risks of not putting out fire
3) Leave it to Parliament, not courts
2) Cheap steps, e.g. water down/remove tree
4) Floodgates Specialism = elevates standard of care
Littlewoods Bolam
Wrongful conception claims - “Ordinary skill of an ordinary competent man exercising that particular art”
- Cinema owner unaware of vandalism + fire spread to neighbour’s property = no DOC
• Parental claim: Doctor negligently performed sterilization ∴ conceived unwanted child
McFarlane 4) D assumed responsibility to C • GP
- Wanted to limit family to 4 children, but vasectomy negligently performed + conceived healthy child Mitchell Holt
- D threatened to kill M. Council warned D to stop, or else evicted ∴ D killed M - GP failed to identify symptoms, later hospitalized w/ brain hemorrhage
- Not fair, just + reasonable to impose DOC to protect M from D’s criminal acts - Lacked usual symptoms ∴ no breach
3) Defences
2) Cause of action
4) Advice - 3 heads of damages:
§ General damages ∴ put claimant in a position as if tort ≠ committed
DOCTOR’S DUTY TO WARN
• Duty to diagnose / treat / warn of significant risks > every risk
§ Special damages: Out-of-pocket expenses, e.g. baby clothes • Objectively significant:
• Q) Established category? § Costs of raising child: Up to age of majority 1) Bolam test
o Employer/employee: Hatton - Court: May recover general + special damages, but not costs of raising child Sidaway
o Doctor/patient: McFarlane 1) Doctors assume responsibility for physical well being of child, not economic loss - Neck pain, 1% spinal damage ≠ disclosed
o Teacher/pupil: Lewis 2) Benefits can’t be calculated to offset the burdens - No reasonable body of medical opinion would disclose this risk
o Transport operators/passengers: Silverlink 3) Disproportionate to place liability on raising healthy child
o Prison officer/prisoner: Dorset Yacht 4) Distributive justice: Other claimants = ↑ deserving, e.g. suffering physical injury Chester
o Manufacturer/consumer: Donoghue 5) Blessing - Back pain, 1-2% nerve damage ≠ disclosed
- Medical opinion would disclose b/c serious
• If novel, use Caparo test: Cattanach à Australian case
Caparo - Costs of raising child = recoverable 2) Modified Bolam, unless court considers practice = unreasonable
1) Is harm reasonably foreseeable? 1) Deeper pockets w/ doctor’s insurers > parents § Highly anxious patient?
2) Proximity? 2) Sought sterilization ∴ parents didn’t think it was a blessing § Patient requires risk to be disclosed for employment purposes?
3) Public policy reasons: Must be fair, just + reasonable to impose DOC on D § Patient’s history, e.g. bad experience w/ operations
• Disabled child
REASONABLY FORESEEABLE § Patient has physical condition that makes risk ↑ important to them?
Parkinson
• DOC owed to foreseeable victim of harm/class > world at large - Wanted to limit family to 4 children, but sterilization negligently performed + conceived disabled child
3) Material risks test: Would a reasonable patient expect risk to be disclosed?
• Objective test: Would reasonable person in D’s position foresee risk of harm? - Court: Cost of raising child = directly linked to child’s disability e.g. education costs, house adjustments
Pearce
Long Island Railroad - But ordinary costs of raising child ≠ recoverable, e.g. food, clothes
- Recommended a natural birth, 0.1% risk of stillbirth ≠ disclosed
- Dropped package of fireworks + injured X on platform ≠ foreseeable harm
• If mother = disabled - Reasonable patient wouldn’t expect risk to be disclosed b/c low probability
Claimant = susceptible to injury ≠ egg-shell skull rule Rees
Haley - Blind ∴ couldn’t cope w/ raising child, but sterilization negligently performed = conceived healthy child • Not informed of alternative treatments:
- Blind man tripped into trench = injured - Court: Breached her autonomy to not have a child b/c disability Birch
- Court: Reasonably foreseeable a blind man would walk down the street - Steyn: Judicial creativity went too far - 1-2% risk of stroke = disclosed, but not told about MMR scan (no risk of stroke)
- Causation: If warned, she wouldn’t have undertook angiogram
Unborn claimants Wrongful birth claims
• Common law: • Parental claim: Doctor failed to detect disability in utero. If parents knew = abort. • Subjectively significant = important to particular patient
Burton o 1) Must be disabled child Rogers à Australian case
- DOC owed to unborn child = actionable on birth o 2) Abortion lawfully available when breach occurred - Operation to restore eyesight. Doctor assured her good eye would be safe, but both eyes blinded
Rance - Recovered damages b/c it was important to her
• S1 Congenital Disabilities (Civil Liability) Act 1976: Foreseeable claimant if child injured in utero - Doctor failed to detect at 26 weeks: Abortion ≠ lawfully available
o Child claim: Must be born alive w/ negligently inflicted injuries, not naturally occurring o 3) Mother would have undergone an abortion CLAIMANT DIES
• S2: Mother has immunity for negligence, except for negligent driving b/c insured Lee • Claimant’s estate can bring action:
- Both parents suffered epilepsy ∴ ↑ risk of foetal abnormality o Law Reform (Miscellaneous Provisions) Act 1934: Limited damages
PROXIMITY - High-resolution ultrasound to ensure healthy child + told doctor she’d terminate if disabled child o Fatal Accidents Act 1976: Recover damages for loss of dependency, e.g. income
Geographical proximity - Would have incurred costs of raising healthy child ∴ only awarded extra costs of raising § Period between negligence + death
Dorset Yacht disabled child Hicks
- Prison officers left Borstal boys unsupervised at night ∴ damaged claimant’s boat - Daughters lost consciousness for 3 mins ∴ recover damages within that period
- Geographically close: Small class of persons at risk = proximity Wrongful life claims
§ Not financially dependent on minors ∴ FA ≠ relevant
• Child claim ≠ lawful, b/c cannot argue they shouldn’t exist
Lewis Essex
- Kindergarten teacher left child (4) unsupervised, b/c attended to another child - Mother exposed to measles ∴ severely disabled child
- Child collided w/ lorry + driver died
- Court: L = one of a class of road users ∴ anyone could have been hit by kid ≠ proximity
- Banned in English law:
1) Duty cannot be to destroy child, b/c breaches sanctity of life BREACH OF DUTY
2) Cannot compare existence of disabled child to non-existent child ∴ cannot quantify damages
Palmer v Tees
- Before releasing psychiatric patient, Armstrong said he had sexual feelings towards minors Barristers SET STANDARD OF CARE
- Missed hospital appointments + ↓ supervision ∴ raped + murdered Rosie Palmer (4) • No immunity • Standard of reasonable man ≠ standard of perfection
- Rosie = one of general public at risk of Armstrong’s activity, no special risk ≠ proximity Simons
D’s particular characteristics
1) Other professions ≠ immune
Knowledge proximity Age = suppresses standard of care
2) Public confidence in legal system
Dorset Yacht • Extremely young
3) Weeds out “bad eggs”
- In prison ∴ officers knew of their criminal tendencies = proximity Lewis
OMISSIONS - Child ≠ negligent for wandering onto road
Lewis • No duty to rescue: Stovin v Wise
- Teacher knew kids act unpredictably = knowledge proximity o 1) Causation issue • Child expected to reach standard of “ordinarily prudent + reasonable” X-aged child in D’s position
o 2) Restricts autonomy Mullin
Hill o 3) Why place burden solely on 1 person? - Sword fight (15) w/ rulers = snapped + blinded ≠ breach
- Jacqueline Hill = last victim of Yorkshire Ripper (Peter Sutcliffe) o 4) Floodgates - Reached standard of care reasonably expected of 15 year old
- Mother argued police were negligent in capturing him
- Police didn’t know who Yorkshire Ripper was ≠ proximity Exceptions Inexperience
1) Special relationship: D fails to control 3 rd party: Dorset Yacht • Professional context: Inexperience ≠ suppress standard of care
Temporal proximity Wilsher
Palmer v Tees 2) D creates source of danger
Haynes v Harwood - Junior doctor put capita in vein > artery = blinded baby ∴ breach
- 12 months between release + damage ≠ proximity
- D left horse unattended = bolted ∴ injured policeman = DOC
• Non-professional:
Relational proximity - Reasonably foreseeable that any noise would spook horse, especially in school area
Weston
• Pre-existing relationship ∴ assume responsibility for C’s welfare - Inexperienced driver hit lamppost = broke N’s leg
Topp
• If D exerts ↑ control over C = ↑ relational proximity - Standard applied to a new driver = that of an experienced + skilled driver
- Bus left unattended w/ keys in ignition = stolen + killed T ≠ DOC
PUBLIC POLICY: Fair, just + reasonable to impose liability? - Haynes horse = inherently dangerous vs. bus requires human intervention
Dangerous sports / recreational activity
Police in criminal investigations à Michaels / Osman
3) D knew/ought to have known 3 rd party created danger on his property + failed to take reasonable steps to • Lower standard of care: D must not show reckless disregard for claimant’s safety
Hill o Inherent risk / makes urgent decisions / participants + spectators voluntarily accept risk of physical harm
prevent
- Public policy reasons precluded imposing DOC on police - Sumner
Goldman
1) Defensive practices = fewer arrests - Cameraman at horse show = injured
- Tree caught on fire + spread to neighbour’s property = DOC
2) Diverts resources for litigation > investigating crime - No reckless disregard b/c told him to step back + rider controlled horse
1) Experienced landowner knew risks of not putting out fire
3) Leave it to Parliament, not courts
2) Cheap steps, e.g. water down/remove tree
4) Floodgates Specialism = elevates standard of care
Littlewoods Bolam
Wrongful conception claims - “Ordinary skill of an ordinary competent man exercising that particular art”
- Cinema owner unaware of vandalism + fire spread to neighbour’s property = no DOC
• Parental claim: Doctor negligently performed sterilization ∴ conceived unwanted child
McFarlane 4) D assumed responsibility to C • GP
- Wanted to limit family to 4 children, but vasectomy negligently performed + conceived healthy child Mitchell Holt
- D threatened to kill M. Council warned D to stop, or else evicted ∴ D killed M - GP failed to identify symptoms, later hospitalized w/ brain hemorrhage
- Not fair, just + reasonable to impose DOC to protect M from D’s criminal acts - Lacked usual symptoms ∴ no breach
