The legal issue is concerned with whether both Hettieand Andy can action a successful claim in negligence. There are four elementsto such a claim: they will need to prove that they suffered actionable damage,that they were owed a duty of care by Andy and Dr. Salt respectively, who thenbreached this duty.
In addition, there is the need for both to prove that itwas the defendants’ negligent behaviour that caused the loss that they suffered. There is actionable damage as defined in Rothwell v. Chemical Insulating Ltd1as ‘an abstract concept ofbeing worse off, physically or economically’ 2 because Hettie has sufferedphysical damage to her property, and in particular, her flooring. As it has been concluded that Hettie has sufferedactionable damage, it must be considered whether Andy, an apprentice plumber,owed a duty of care whilst he was fixing her radiators. To establish whetherthis duty of care is required, there must be reference to the tri-partite test asimplemented by Caparo Industries v.Dickman,3 to be used if there is no directprecedent that can be applied. In Hettie’s case, where no such precedentexists, there are three criteria to satisfy: the damage was foreseeable; there wasa sufficiently proximate relationship between the parties; and, it must be’fair, just and reasonable’ to impose such a duty with policy considerations.
4 It was foreseeable that because Andy had not drainedthe radiator, the water that remained would leak and damage Hettie’s floor. Evenif as neighbours, the parties did not have a social relationship, they had one ofa professional nature as Andy assumed responsibility for the plumbing work.With the final criteria, it is fair, just and reasonable for Hettie to claimdamages through tort. Giliker outlines a policy consideration with regards topure economic loss as ‘the desire to avoid crushing liability’5 Although this is a not aclaim for pure economic loss, a similar rationale can be given to the fact thatit is fair for Hettie to recover damages to replace her flooring, withoutcausing a ‘floodgates’ issue. To argue that Andy has breached his duty, he must be heldto the standard of care outlined in case law, where ‘negligenceis the omission to do something which a reasonable man … would do, or somethingwhich a prudent and reasonable man would not do’6.The reasonableperson is someone who is ‘free both from over-apprehension and fromover-confidence’7However,as Andy’s negligence occurred in a professional context, he must be tested againstthe basic professional standard highlighted in Bolam v. Friern Hospital Management Committee8 which is ‘the standard of the ordinaryman exercising and professing to have that special skill’9This has been applied to the medical profession, as in Wilsher v.
Essex Area Health Authority10whena junior doctor was held to the same standard of care as a senior doctor, whowould ordinarily have carried out the task in question. This applies to manual professions,as held in the case of Wells v. Cooper11where the facts of the case are comparable with Hettie and Andy’s circumstance.Here, an amateur carpenter was held to the standard of an experienced carpenterafter he had used improper screws to fix a door handle. Therefore, those whoare inexperienced, such as Andy, are held to a professional standard whereby it is presumed that heis entirely competent in his industry. Despite being an apprentice, Andy wouldbe held to the standard of care of a professional plumber. As a professionalplumber would not have omitted the process of draining the radiator beforecleaning it, Andy breached his duty of care to Hettie.
It musttherefore be established whether Andy was a factual cause, using the ‘but for’test as in Barnettv. Chelsea and Kensington Hospital Management Committee12 whereit is asked that”but for’ the defendant’s conduct, would the claimant’s damage still haveoccurred?’13 It is quite clear that if Andy had notforgotten to drain the water, it would not have flooded Hettie’s lounge nordamaged her flooring. To test legal causation, there must be consideration for:foreseeability of the ‘kind ofdamage’, the ‘way damage is caused’ and ‘extent ofthe damage’14and in the circumstances of Andy and Hettie, each criteria can be met, thusdemonstrating that the damage was not remote and was likely to have happened asa result of Andy’s negligence. Andy wouldnot be able to use any of the defences of consent, voluntary assumption ofrisk, nor illegality to prove that he was in any way less liable. Therefore, itcan be concluded that Andy was entirely liable and Hettie would be able toclaim damages through tort. Andy, as a result of his own negligence, sufferedpersonal injury by slipping on the floor but the prolongation of his treatmentlead to deformity, thus meeting the definition of actionable damage stated in Rothwell v. Chemical Insulating Ltd15as ‘being worse off,physically or economically.’16 So far, Andy would be able to make aclaim against Dr.
Salt in negligence. As it is clear that Andy has suffered actionabledamage, it must be determined whether Dr. Salt owed Andy a duty of care as amedical professional. It could be argued that as Dr. Salt failed to treat Andy,it could be classified as an omission, where, as in Smith v. Littlewoods Organisation17 ‘common law does notimpose liability for what are called pure omissions’18 However, the case of Andyand Dr.
Salt can be distinguished from Michaelv. Chief Constable of South Wales19 where it was held that the Police did not owe a duty of carebecause they did not give a time frame for their assistance, meaning they hadnot assumed responsibility for the claimant. In the case of Andy, as Dr. Salthad given him advice to return in one week, it is arguable that he had assumedresponsibility for Andy, and therefore that he owed a duty of care. As Dr.
Salt assumed responsibility for Andy’s welfare,and thus owed him a duty of care, there is question as to whether Dr. Salt wasin breach of this duty by prolonging treatment. In order to argue that Dr. Saltwas in breach of his duty as a Doctor, he needs to be held to the legalprofessional standard of care as ‘the standard of the ordinary man exercising andprofessing to have that special skill’20 which thereforesuggests that Dr. Salt needed to treat in line with common medical practice.However, the motive behind not giving Andy the x-ray was Dr. Salt’s personalopinion regarding radiation. This is a minority opinion within the medicalprofession as any other Doctor would have carried out an x-ray examination onAndy.
It has been held that ‘a medical man can not obstinately and pig-headedlycarry on with some old technique if it has been proved to be contrary to whatis really substantially the whole of informed medical opinion.’21 This suggests thatbecause x-rays have been deemed safe to be used when there is a suspectedbroken bone, Dr. Salt should have carried out an x-ray, despite his personalinhibitions. In addition, Dr. Salt also gave Andy one week, where, if symptomspersisted, to return for treatment.
This is similar to the facts of Lowe v. Havering Hospitals22where the defendants’failure to take precaution by leaving an 8-week gap between appointments to aclaimant who suffered from high blood pressure, inevitably lead to furtherdamage. Therefore, it can be argued that because Dr. Salt did not treat Andy inaccordance to traditional and safe practice, and failed to take precaution, hebreached the duty of care that was owed to Andy. In order todetermine whether Dr. Salt was a factual cause of Andy’s damage, the ‘but for’test as in Barnettv. Chelsea and Kensington Hospital Management Committee23 mustbe applied.
It isevident that had Dr. Salt given Andy an immediate x-ray, he would have beendiagnosed with a broken arm, which would have been cast and would haverecovered without causing permanent deformity. Remoteness is tested through theforeseeability of the ‘kind ofdamage’; ‘the way damage is caused’ and of the’extent of the damage’24all of which can be satisfied, as the outcome of Andy’s deformity is not tooremote for the courts not to impose liability on Dr. Salt.
Dr. Salt couldnot use any defence to suggest that he was not negligent in his care of Andy.Therefore, it can be concluded that Dr. Salt was negligent and Andy would beable to pursue a case against him through his employer.1 2007 UKHL 392 Rothwell v.
Chemical Insulating Ltd. 2007 UKHL 39 7 (HoffmanLJ)3 1990 2A.C. 6054 Caparo Industries Plc.
v. Dickman 1990 2A.C. 6055 Paula Giliker, Tort (6th edn, Sweet &Maxwell 2017) 976 Blyth v.Birmingham Waterworks Co 1956 11Ex.
781 784 (Alderson B)7 Glasgow Corporation v. Muir 1943 2AC 448 457 (MacMillan LJ)8 1957 1 WLR 5829 Bolam v. Friern Hospital Management Committee 1957 1 WLR 582 3(McNair J)10 1988 AC 1074111958 3WLR 12812 1968 2 WLR 42213 Barnettv. Chelsea and Kensington Hospital Management Committee 1968 2 WLR 42214 Overseas Tankship (UK) Ltd v. Morts Dock & Engineering Co Ltd 1961UKPC 215 2007 UKHL 3916 Rothwell v.
Chemical Insulating Ltd. 2007 UKHL 39 7 (HoffmanLJ)17 1987 UKHL 1818 Smith v. Littlewoods Organisation 1987 UKHL 18 76 (Goff LJ)19 2015UKSC 220 Bolam v. Friern Hospital Management Committee 1957 1 WLR 582 3(McNair, J)21 Bolam v. Friern Hospital Management Committee 1957 1 WLR 582 3(McNair, J)22 2001 EWHC J0622-323 1968 2 WLR 42224 Overseas Tankship (UK) Ltd v. Morts Dock & Engineering Co Ltd 1961UKPC 2