In concerns the breach of duty element, all

In order for there to be a claim in negligence there has to
be five elements which you have to go through; there must be actionable damage,
duty of care aimed to the claimant, breach of duty, causation of the damage of
the defendants actions and finally if there are any defences. Even though this
problem question concerns the breach of duty element, all of the five elements
will be needed for a claim in the tort of negligence. In this question there
will be a claim for Hettie v Andy and another claim for Andy v Dr Salt.

 

For a claim against Hettie v Andy, the first thing we need
to establish is that has Hettie suffered from any actionable damage. Hettie has
suffered from actionable damage for the fact that due to Andy’s negligence, the
water has damaged Hettie’s lounge and damaged the wooden flooring.  This can be seen in the case of Rotwell v
Chemical & Insulating Co Ltd where Lord Hoffmann said, “Damage…is an
abstract concept of being worse off, physically or economically, so that
compensation is an appropriate remedy”1. In this
case Hettie has suffered property damage meaning that she is economically worse
off thus she has she has suffered from actionable damage.

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The next step after actionable damage is establishing a duty
of care is owed to the claimant. To
establish a duty of care between the claimant and the defendant we have to
satisfy three things which was established in the case of Caparo v Dickman2; there must be
a reasonable foresight of harm, there must be a relationship of
proximity between the claimant and the defendant and that it must be fair, just
and reasonable in the circumstance for a duty of care to be
imposed. In this case the harm was reasonably foreseeable, as
Andy knew the consequences if he carried out the work wrong, and damage could
be done to Hettie’s property. The concept of proximity was
established in the case of Bourhill v Young3, the claimant and the
defendant had a close relationship for the fact that they were neighbours,
which succeeds this criterion. Finally, it is fair, just and
reasonable to owe a duty of care as Andy is an apprentice
plumber meaning that should be held to account to his
customers when he or she does something wrong. All of this
suggests that Andy owes Hettie a duty of care. 

 

After establishing that a duty of care was owed to Andy we
have to show that there was a breach of this duty. The professional standard of
care comes from Bolam v. Friern Hospital Management Committee4 where
McNair J said that “where you get a situation which involves the use of some
special skill or competence, then the test whether there has been negligence or
not is the not the test of the man on the top… the test is the standard of the
ordinary skilled man exercising and professing to have that special skill”.
This suggests that the person performing the task does not have to been in the
top of the profession, just like Andy wasn’t but someone in his position for
example another apprentice, would they have done the same Andy did? Another
apprentice in Andy’s position would have not agreed to fix Hettie’s problem
especially when Andy had only seen Drew deal with a similar problem, he had no
experience himself in carrying out the task. This can also be seen in the
judgement in Wells v Copper5 where it
was said that the defendant may be liable if he is undertaking a task which go
beyond his skills and requires someone who is more experienced to undertake the
task. This suggests that Andy was in breach of duty, as he knew he was not
experienced in completing the task at hand but he still undertook the task.  

 

The next element to a negligence claim is causation.
Causation is divided into two sections; factual and legal causation. You have
to look at both parts to have a successful claim in negligence. The test for
causation is the ‘sine qua non’ test (the ‘but for’) test. ‘But for’ the
actions of the defendant, would the claimant have suffered those damages. The
answer here is no for the fact that if Andy did not attempt to fix the
radiators then Hettie would have not suffered from the damage. Meaning that
Hettie’s claim passes the factual causation test. After this comes legal
causation, in relation to remoteness the current rule for this is that, is the
type of harm reasonably foreseeable? This comes from The Wagon Mound6 case. In
this case it was reasonably foreseeable that as Andy has not previously carried
out any work like this before that something could go wrong, which is what
happened; the water damaged the wooden flooring and the lounge. Thus Andy
should be liable for the damage caused based on legal causation.

 

Finally, we have to ask if the defendant can raise any
defences. In this scenario the defendant does not have any defences, which he
could raise, as there wasn’t a voluntary assumption of risk from the claimant,
there wasn’t contributory negligence or an illegality defence.

 

After going through all the steps in order to raise a claim
in negligence, Andy satisfies all these criteria’s meaning that he is liable in
the tort of negligence and thus Hettie should be compensated for her losses.

 

For the claim against Andy v Dr Salt, the first thing in
establishing a claim in the tort of negligence will be actionable damage. Andy
has suffered actionable damage for the fact that his arm has been broken in the
fall and now is permanently deformed. This can be seen in the case of Rotwell v
Chemical & Insulating Co Ltd 7where
Lord Hoffmann said, “Damage…is an abstract concept of being worse off,
physically or economically, so that compensation is an appropriate remedy”. In
this case Andy has been physically worse off after the incident thus he has
suffered actionable damage. 

 

The next step after actionable damage is establishing a duty
of care is owed to the claimant. We can see that a duty of care is owed to the
patient from his/her doctor from Bolam v. Friern Hospital Management Committee8. In this
case we would not need to apply the Caparo test for the fact that we can
clearly see that Dr Salt owes a duty to Andy.

 

After establishing that a duty of care was owed to Andy we
have to show that there was a breach of this duty. The legal standard of care,
which is the objective test of the reasonable person, comes from Blyth v
Birmingham Waterworks Co9. In this
case the defendant was a doctor so we apply the professional standard of care
(the Bolam test), which comes from Bolam v. Friern Hospital Management
Committee “a doctor is not guilty of negligence if he as acted in a accordance
with a practice accepted as proper by a responsible body of medical men skilled
in that particular”10. This
shows that Dr Salt was in breach of duty, as he did not act in accordance to
which a reasonable person in that profession would have done. Another doctor
would have given Andy an X-ray, as it was the usual practice to X-ray an
injured arm if the patient had fallen regardless if he or she thought that the
radiation of X-rays was dangerous. This suggests that Dr Salt breached his duty
of care, which was owed to Andy, so the element of breach of duty is satisfied.

 

The next stage is causation. As we have seen previously
there are two stages to causation. First we have to satisfy factual causation,
the ‘but for test’. The question we have to ask is ‘but for’ the actions of the
doctor would have Andy suffered from the damage that he did? The answer to that
would be no for the fact that if Dr Salt had carried out the X-ray when it was
needed Andy’s would have not been permanently deformed. Andy’s claim passes the
factual causation test. After this comes legal causation which asks the
question if whether the defendant was responsible for the harm? In relation to
remoteness the current rule for this is that, is the type of harm reasonably
foreseeable? This comes from The Wagon Mound11. In the
case of Dr Salt it was reasonably foreseeable that if he did not carry out the
X-ray then damage would be done to Andy’s arm, which is what happened thus Dr
Salt should be liable for the harm on the basis of legal causation. In this
case the courts would take the narrower approach to the harm.

 

Once the tort has been established, we ask whether the
defendant can raise any defences. In this scenario the defendant does not have
any defences, which he could raise, as there wasn’t a voluntary assumption of
risk from the claimant, there wasn’t contributory negligence or an illegality
defence.

 

Therefore, after going though all the steps in the tort of
negligence I conclude that Dr Salt is liable and thus Andy should be
compensated for his losses.

 

 

1
Rotwell v Chemical & Insulating Co Ltd 2007 UKHL 39

2 Caparo Industries v Dickman Plc
1990 2 AC 605

 

3
Bourhill v Young 1943 AC
92 

 

4
Bolam v Friern Hospital Management Committee 1957 1 WLR 582 (QB)

5
Wells v Cooper 1958 2 QB
265

 

6
The Wagon Mound (No.1)
1961 AC 388

7 Rotwell (n 1)

8 Bolam (n 4)

9
Blyth v Birmingham
Waterworks Co 1856 11 Ex. 781

10 Bolam (n 4)

11 Wagond Mound (n 6)