Establishing a DOC in Negligence

Question 1

Johnston v NEI

Answer 1

Damage is a pre-requisite to recovery; Asbestos is not damage

Question 2

Hicks v Yorkshire Police

Answer 2

Damage is a pre-requisite to recovery: Hillsborough disaster

Unable to show that his two daughters suffered any damage; their deaths were quick

Question 3

Topp v London Country Bus

Answer 3

A duty to intervene where the D creates a source of danger near a road and it is interfered with by a third party and causes damage to the claimant

• Bus left unlocked for 12 hours and was eventually stolen
• it was use in a hit and run
• No duty of care was owed as the bus was not inherently dangerous and it was the criminal intervention that caused the damage

Question 4

Goldman v Hargrave

Answer 4

Where the D knew or should have known that a TP was creating danger on his property and failed to take reasonable steps to abate

• lightning hit a tree and it was left to burn out
• Caught fire to a neighbours yard
• A DOC was owed as it was foreseeable and it was easy to abate

Question 5

Smith v Littlewoods

Answer 5

Where the D knew or should have known that a TP was creating danger on his property and failed to take reasonable steps to abate
-Vagrants started a fire
No DOC as they had no knowledge of their presence
pure omission

Question 6

Home office v Dorsett Yacht

Answer 6

A DOC may be imposed on D where he had a duty to control or supervise a TP & failed to do so which caused injury

• boys from detention centre got away from an island due to the guards negligence
• They crashed the boat into the yacht
• DOC owed because of level of control exercised over third party

Question 7

Carmarthenshire v Lewis

Answer 7

A DOC may be imposed on D where he had a duty to control or supervise a TP & failed to do so which caused injury

• Kindergarten allowed a boy to escape and caused a car accident that killed lewis
• Held: a DOC was owed; failed VL because the supervisor was providing medical aid

Question 8

Hill v Chief Constable of Yorkshire Police

Answer 8

A DOC may be imposed on D where he had a duty to control or supervise a TP & failed to do so which caused injury

• Hills daughter was the last victim of peter sutcliff
• If police had apprehended him her daughter would still be alive
• No DOC; created the Hill Core Immunity
• Police do not generally owe a DOC

Question 9

Palmer v Tees

Answer 9

A DOC may be imposed on D where he had a duty to control or supervise a TP & failed to do so which caused injury

• Psych patient allowed to be placed into community housing and his supervision was negligently allowed to lapse
• He killed a little girl
• Could not establish foreseeability or proximity as per Caparo

Question 10

McFarlane v Tayside

Answer 10

Wrongful Conception claim; doctor has negligently failed a sterilization that leads to an unwanted birth

• Negligent vasectomy that lead to a baby being born
• Claimant can only obtain general and special damages; they cannot claim costs for raising the child

Question 11

Parkinson v St. James Hospital

Answer 11

Wrongful Conception claim; doctor has negligently failed a sterilization that leads to an unwanted birth BUT where the child is born disabled

• Negligent sterilization and the child was born disabled
• Allowed for both the first two heads of damage
• Also awarded the costs of raising the child which were directly related to the child’s disability

Question 12

Lee v Taunton and Somerset

Answer 12

Wrongful Birth claim: Where an abortion would have been lawfully available at the time of breach and the mother would have gone through with the abortion

• Parents suffered from epilepsy and and took drugs which increased the risk of birth defect
• They took extra precautions by going to do a special ultra sound
• they told the doctor that if there was a disability that they wanted to abort and the doctor negligently missed the disability
• They were awarded the first two heads of damage and were also awarded the costs of raising the child which were directly related to the child’s disability

Question 13

McKay v Essex

Answer 13

Wrongful Life claim; child is claiming against the doctor that had the doctor not been negligent the individual would have never been born with their disability

• Not allowed in English law
• The mother was exposed to measles which was missed by the doctor
• Held: No DOC where the central argument is that the individual should have been destroyed

Question 14

Bolam v Friern

Answer 14

The Bolam Test
-Electro shock therapy was used on a patient but anti-convulsion drugs were not administered and the patient suffered from a broken hip
Held: No DOC; the Bolam Test
- A medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of opinion of men skilled in that particular art (and the judge thinks is factually sound)

Question 15

Chester v Afshar

Answer 15

a case where the Bolam test was applied; A doctors Duty to warn a patient of risks

• spine surgery carried a 1% risk of paralysis that was not warned against
• Held; a DOC was owed as a reasonable body of medical opinion says it should have been disclosed

Question 16

Pierce v United Bristol

Answer 16

A Doctors duty to warn; Doctors are generally not required to warn for risks that are lowed than 1%

Question 17

Rogers v Whitaker

Answer 17

A doctor must take into account the subjective risks of the particular patient when considering what to warn about

• The patient was blind in one eye and was recommended surgery to correct it
• she was nervous about going blind in the other eye and was constantly inquiring about it and ended up blind
• Since it was so subjectively important to her there was a duty to disclose it to her