4: Part III Special Cases - Negligence II

Question 1

What is negligence and professional negligence

Answer 1

• Negligence may occur within a situation in which a specific skill or ability, linked to a specific profession, is offered (e.g., Tradespeople, Solicitor, Private Doctor etc)
• Professional negligence often revolves around how this specialised profession, skill or experience influences the scope of a duty of care, and how a breach of this duty is dealt with

Question 2

How is a breach of duty of care determined in relation to professional negligence

Answer 2

In determining whether the duty of care has been breached, the conduct of the professional is judged against the standard in their profession

• E.g., electrician negligently rewires appliances in a home, which leads to a fire - it would be inappropriate to hold them to the standard of an ordinary person, as they are using a specialised skill – thus, they are held to the standard of an electrician
• Must be proven no other professional would have done that

So, the usual practice in the profession will become important (but not necessarily decisive)

Hunter v Hanley tells us that to be successful, a pursuer must demonstrate thatthe defender has adopted a course of action which no professional person ofordinary skill would adopt if acting reasonably

Question 3

What are the challenges from the pursuers’ perspective (Gordon v Wilson 1992 SLT 849)

Answer 3

It can be argued that the flexibility of the standard of care in professional negligence is logical and useful from the professional point of view (allowance for professional judgment, may to an extent help support progress inscience/medicine)
However, this may create difficulties for a pursuer…

Gordon v Wilson 1992 SLT 849

• Argued that doctor was negligent in delaying to refer patient to specialist
• One body of opinion agreed with the pursuer, and one body of opinion agreed with the defender
• Professional negligence cannot be established by preferring one body of opinion over another (Honisz v Lothian Health Board [2006] CSOH 24 at 39)
• No negligence simply where there is a contrary body of opinion (Bolam v Friern Hospital Management Committee)

Question 4

What standard of care/skill is expected of a professional?

Answer 4

We have established that a professional must adopt a course of conduct which can be endorsed by a responsible body of other professionals (Hunter) – there is no expectation of exceptional skill, only the ordinary skill of an ordinarily competent professional

Question 5

What standard of care/skill is expected of an inexperienced professional?

Answer 5

• This issue was considered in Wilsher v Essex Area Health Authority [1987] QB730
• Junior doctor gave too much oxygen to baby
• Inexperienced individual was held to same standard as professional, because you have to hold them to what their post is
• There will be no distinction regarding experience, but there is specificity regarding specialities – Sidaway v Bethlem Royal Hospital Board of Governors [1985] AC 871
• Different standard for neurosurgeon and doctor: relates to post still

Question 6

Describe the freedom of contracting for professionals

Answer 6

• Many professional relationships will arise through a contract –contractual obligations may thus coincide with a duty of reasonable care
• Where there is a contractual relationship, a pursuer may base an action on both the law of delict and breach of contract
• While parties are free to agree contract terms, professional individuals will still be subject to the Unfair Contract Terms Act 1977, so will be unable to exclude liability for personal injuries or death arising from a breach of duty – and any other attempt to exclude liability will be ineffective unless deemed fair and reasonable

Question 7

Cautions regarding the provision of advice

Answer 7

The relationship between the parties in these cases may often involve the provision of advice – however, the courts have historically been cautious in this area because more than one person could be harmed; unlimited amount of sums or pursuers
The case of Hedley Byrne & Co Ltd v Heller & Partners Ltd 1964 AC 465 established that a party may be liable for negligent advice, even without a contractual relationship

• This case provides authority for the idea that liability will exist for advice, just as for acts
• Furthermore, there can be recovery of economic loss without damage to property

Question 8

As per Hedley Byrne, in the absence of a contract (professional negligence - negligent mistatements and advice) it is necessary to show…

Answer 8

• That the pursuer relied on the statement made by the defender
• That the defender reasonably knew, or ought to have known, that the pursuer wouldrely on it
• That the party making the statement expressly or impliedly undertook responsibility for it
• Evidence of close proximity

Question 9

Explain the reliance on advice/statements in relation to professional negligence

Answer 9

The Hedley Byrne case tells us that the defender should have reasonably known, or ought to have known, that the statement was going to be relied on by the pursuer
However, mere foreseeability will not be sufficient here

• Galoo Ltd v Bright Graham Murray [1994] 1 WLR 1360
• In this case, a duty was deemed to arise only if the auditor was expressly made aware that a particular lender or bidder would rely on the accounts, without independent inquiry

Need for pursuer to establish they were going to rely on the defender’s statements emphasised in Goodwill v British Pregnancy Advisory Service [1996]1 WLR 1397

• After a vasectomy, a patient was assured they no longer needed to use any other method of contraception – a later sexual partner of the patient became pregnant and sued the defendants alleging that they owed her a duty of care
• courts determined no duty owed to pregnant patient - too remote

Question 10

Explain the assumption of responsibility for statements (in relation to professional negligence and Hedley Byrne)

Answer 10

The assumption of responsibility principle laid out in Hedley Byrne is not confined to statements, but may also apply to any assumption of responsibility for the provision of services

• When the claimant entrusts the defendant with the conduct of his affairs, the claimant can be said to have relied on the defendant to exercise due skill and care in such conduct (as per Hedley Byrne

Question 11

What is medical negligence? Explain the 4 building blocks

Answer 11

Building a (medical) negligence case:
Duty of care:
* must be established before a claim can proceed
* in medicine, usually straightforward (but consider complex nature of the delivery of healthcare)

Breach of duty of care
* This relates to the standard of care
* Legally, what was the required standard in the circumstances at the time thebreach is alleged to have occurred, and how in fact did the respondent act?
* In practice, this has been determined with reference to the reasonable person exercising the ordinary skill for that profession
* So, no need for exceptional skill

Causation (and remoteness)
* It won’t be enough to show a breach of the duty of care – it must also be proven that the breach caused the injury in law and fact
* Why is this complex in the medical context? There may be various causes
* The negligent actions
* Pre-existing conditions of the patient (“contraindications”)
* Contributions of other medical professionals

Damages
* Generally, damages should put the pursuerback in the position they would have been inbefore the negligent act was committed
* Non-financial vs Financial

Question 12

Explain duty of care in relation to building a (medical) negligence case

Answer 12

This must be established before a claim can proceed
In medicine, this is usually straightforward

• However, consider the complex nature of the delivery of healthcare

Caparo v Dickman [1990]
Barnett case study:

• Three men drink tea laced with arsenic and present at A&E
• Doctors generally under no obligation to astranger/’non-patient’, with some exceptions (psychiatric harm next lecture)
• However, a duty will be imposed once the doctor has assumed responsibility for the care of the patient

Question 13

Explain breach of duty of care in relation to building a (medical) negligence case

Answer 13

This relates to the standard of care

• Legally, what was the required standard in the circumstances at the time the breach is alleged to have occurred, and how in fact did the respondent act?

In practice, this has been determined with reference to the reasonable person exercising the ordinary skill for that profession

• So, no need for exceptional skill (R v Bateman)
• What about a novice?; Wilsher v Essex Health Authority (1987)

Question 14

What is the standard of care of the reasonable doctor?

Answer 14

There is some deference from the courts to the medical profession

• “In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men …..The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care.” (per Lord Clyde at 217)

Question 15

To establish liability by a doctor where deviation from normal practice is alleged, what three factors require to be established:

Answer 15

To establish liability by a doctor where deviation from normal practice is alleged, three factors require to be established:

• It must be proved that there is a usual and normal practice
• It must be proved that the defender has not adopted that practice
• thirdly (and this is of crucial importance) it must be established that the course the doctor adopted is one which no professional man of ordinary skill would have taken if hehad been acting with ordinary care.
• There is clearly a heavy onus on a pursuer to establish these three facts, and without all three his case will fail

Question 16

In regards to standard of care of a doctor, what if there is more than one course of action?

Answer 16

This problem arose in the Bolam case, concerning electroconvulsive therapy

“a man need not possess the highest expert skill … it is sufficient if he exercises the ordinarily skill of an ordinary competent man exercising that particular art… [and acts] in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art… a doctor is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.” (McNair J)

Question 17

How did the Bolam - Bolitho case change the way the courts assess the standard of care in medical negligence?

Answer 17

It was recognised that the preceding caselaw surrounding the standard of care in medical negligence reduced the job of the courts to a ‘rubber stamp’ – here we see the court taking some control back
‘The court has to be satisfied that the exponents of the body of opinion relied on can demonstrate that such opinion has a logical basis. In particular, in cases involving, as they so often do, the weighing up of risks against benefits, the judge before accepting a body of opinion as being reasonable, responsible or respectable will need to be satisfied that, in forming their views, the experts have directed their minds to the questions of comparative risks and benefits and have reached a defensible conclusion on the matter.’ (per Lord Browne-Wilkinson at242)

• In essence, courts are no longer allowed to accept the views of the medical profession out of hand

Question 18

patient knowledge

Explain the legacy of the Montgomery case

Answer 18

• For nearly 3 decades UK law on informed consent was out of step with other common-law jurisdictions
• The cases of Sidaway and Bolam had ingrained an attitude of paternalism and ‘doctor knows best’

However, support for patient autonomy was growing

• Supported by a string of case law, and guidance from the General Medical Council which considered the expectations of patients regarding information disclosure
• The opportunity to reconsider the law surrounding information disclosure came about in this case before the Supreme Court
• The doctor’s duty involved taking “reasonable care to ensure that the patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments” (para87)

Question 19

Explain causation in relation to building a (medical) negligence case

Answer 19

It won’t be enough to show a breach of the duty of care – it must also be proven that the breach caused the injury in law and fact
There may be various causes for why this is complex in the medical context:

• The negligent actions
• Pre-existing conditions of the patient (“contraindications”)
• Contributions of other medical professionals

Factual causation - ‘but for’ test

• Barnett case; it must be established that it is more than 50% probable that but for the wrongdoing the damage would not have occurred (‘balance of probabilities’)
• Where there are many contributing factors, causation will be proven where the breach made a material contribution to the injury OR where it can be shown that the breach amounted to a material increase to the risk of injury (Wilsher case)

Legal causation - remoteness

• The breach must also be found to be the legal cause – it must be judged to be fair/reasonable to impose liability
• Remoteness: The damage must be foreseeable and must not be too remote, or, should the respondent ought reasonably to have foreseen the damage?

Question 20

three examples

Explain how intervening acts (novus actus interveniens) can break the chain of causation in medical negligence

Answer 20

Was there a new intervening act which could break the chain of causation? (Sabri-Tabrizi v Lothian Health Board)
For example…

• An act of nature
• The intervening conduct of a third party
• The intervening conduct of the patient

Question 21

Explain damages in relation to building a (medical) negligence case

Answer 21

Generally, damages should put the pursuerback in the position they would have been in before the negligent act was committed
Non-financial vs Financial
Reductions for contributory negligence?

• A defence that may be argued where the pursuer’s injuries are alleged to be partly their fault (Pidgeon v Doncaster Health Authority)

Question 22

What is the standard of care in professional negligence

Answer 22

The question of a duty of care is approached here in the same way as othernegligence cases
The variance comes in the form of the standard of care

Question 23

Explain the distinction between primary and secondary victims in relation to ‘nervous shock’ as an injury

Answer 23

Primary

• A person to whom the duty of care is owed – they are within the scope of the negligent act, they may themselves have been physically harmed
• In order to claim as a primary victim, it must be shown that the injured person ‘participated’ in the event; Dooley v Cammell Laird and Co Ltd [1951] 1 Lloyd’s Rep 271
• The victim must show that their harm was caused in breach of a duty of care to guard againstpersonal injury

Secondary

• Has suffered shock from fear for another person – still foreseeable and within the scope ofthe negligent act, but could not have been harmed themselves (i.e., outside potentialphysical harm)
• Damages may be recoverable, but here we see some limitations in the form of requirements

Question 24

How can we define ‘shock’ (relate to cases of Simpson v ICI 1983 SLT 601 and Page v Smith [1996] AC 155)

Answer 24

S v ICI:

• ”It is not enough…for the purposes in each case to show simply that they got a fright and suffered an emotional reaction, if no visible disability or provable illness or injury followed” – Lord Robertson
• What does this tell us? Harm must be a recognised psychiatric condition

P v S:

• …a reaction to an immediate and horrifying impact, resulting in some recognisable psychiatric illness. There must be some serious medical disturbances outside the range of normal human experience.” – Lord Keith

Question 25

Describe the Alcock Criteria

Answer 25

Alcock et al v Chief Constable South Yorkshire [1992] 1 AC 310

• Involved the Hillsborough football disaster
• In this case the tests established in McLoughlin were reviewed

The test established in Alcock

• Close tie of love and affection (between the secondary and primary victims)
• Presence at the event or the immediate aftermath
• Direct perception
• ““Shock.” in the context of this cause of action, involves the sudden appreciation by sight or sound of a horrifying event, which violently agitates the mind. It has yet to include psychiatric illness caused by the accumulation over a period of time of more gradual assaults on the nervous system.” (at401)

Question 26

What is the situation when the nervous injury, emotional distress, or psychiatric harm was caused intentionally

Answer 26

• Wrongdoer will be liable for the distress and/or bodily harm
• Damages will generally be available

Question 27

What is the exception to the rule that medical professionals do not owe a duty of care to a ‘non patient’

Answer 27

psychiatric harm

Question 28

In regard to psychiatric harm in medical cases: The patient can be described as the primary victim – who then is the secondary victim?

Answer 28

• A person close to the patient who may suffer psychiatric harm as a result of negligent treatment administered to a patient
• It will be necessary to show that they suffered from a recognised psychiatric illness (Simpson; Page), and they must satisfy the Alcock criteria

Question 29

The Alcock criteria in healthcare:
Explain the case study Re (a minor) v Calderdale & Huddersfield NHS Foundation Trust [2017] EWHC 824(QB) and how it satisfies Alcock

Answer 29

• Concerned a mother and grandmother who alleged they both had suffered PTSD after the mother experienced and the grandmother witnessed the negligent and traumatic delivery of the mother’s child
• The infant suffered a brain injury duringthe protracted birth
• The grandmother was present and witnessed the birth
• Satisfied Alcock criteria, determined she had suffered shock and was entitled to damages

Question 30

The Alcock criteria in healthcare:
Explain the case study Liverpool Women’s Hospital v Ronayne [2015] EWHC Civ 588 and how it does not satisfy Alcock

Answer 30

• Husband who witnessed his wifesuffer complications over a 36 hour period as a result of a negligently performed hysterectomy
• This was deemed not to satisfy theAlcock criteria
• Necessary element of suddenness did not exist.
• Further, his wife’s appearance was not exceptional for a person in hospital in such circumstances and was not “horrifying” in the sense used in the authorities.

Question 31

Can an individual make a claim for psychiatric injury caused by witnessing the death or other horrifying event of a close relative as a result of earlier clinical negligence?

Answer 31

Paul and another (Appellants) v Royal Wolverhampton NHS Trust (Respondent) [2024] UKSC 1

• An appeal conjoining three cases, all deaths argued to be caused by negligence
• Two children present when their father died suddenly from cardiac arrest - struck out
• Parents witnessing their child’s death from a lung disease they argued ought to have been diagnosed and treated earlier
• A parent who found their child deceased from undiagnosed pneumonia

Question 32

In relation to Attia v British Gas plc [1988] QB 304:
Can liability for psychiatric harm only be actionable where the pursuer has sustained injury by witnessing an injury to another?
Can a claim be actionable if what was witnessed was property damage?

Answer 32

• Attia engaged British Gas to install central heating in their home, and returned home to find their loft on fire, resulting in the house and its contents becoming extensively damaged –the fire had been caused by the defender’s negligent installation of the central heating
• Attia claimed for the nervous shock sustained after seeing this damage
• It was held by the Court of Appeal that Attia could recover if they could prove at trial that the harm suffered was reasonably foreseeable

Question 33

Whom does liability under the Animal (Scotland) Act 1987 fall?

Answer 33

Section 1

• Whoever at the time was the keeper of the animal
• Owner of an animal that belongs to a species whose members generally are by virtue of their physical attributes or habits likely (unless controlled or restrained) to injure severely or kill persons or animals, or damage property to a material extent
• A person is liable if the injury or damage complained of is directly referable to such physical attributes or habits

Question 34

4. S. 1 of the Animal (Scotland) Act 1987 provides for liability for two types of harm or damage caused by two types of animal. Explain the coverage of the Act in your own words.

Answer 34

• Dogs and other dangerous wild animals are considered to be likely threats if they are not being controlled
• Foraging animals if not contained are deemed likely to damage land and foliage