Andy actionable damage, duty of care, breach of

Andy

Andy’s
claim would be dealt with in the tort of negligence. The four requirements
needed for negligence claims are; actionable damage, duty of care, breach of
duty and causation. Dr Salt would be liable and Andy would therefore have a
claim in negligence.

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Actionable damage

The legal issue here is whether Dr Salt
should be liable for failing to order Andy an x-ray. As already mentioned, Rothwell v Chemical & Insulating Co Ltd
established that actionable damage could be damage to property or personal
injury.1
In this case actionable damage is present here as Andy’s arm is now permanently
deformed due to Dr Salt’s negligence.

Duty of care

Firstly, it has to be established whether
Dr Salt owed Andy a duty of care. The principle provided by Bolam v. Friern Hospital Management Committee states that Dr Salt should
behave at the standard of a reasonably competent doctor. Therefore, it can be
argued that by not providing Andy with an x-ray he failed to reach that
standard of care. 2

Breach of duty

Again, this is decided by the objective
test where the defendant should’ve met the standard of a reasonable person, established
in Blyth v Birmingham Waterworks Co that
negligence is failing to do that which a reasonable person would do in the same
circumstance. 3
The defendant in this case should’ve met the standard
of a reasonable and competent doctor; however he didn’t by not ordering the x-ray
which is usual practice.

A relevant legal principle here is Bolam, where the claimant suffered a fracture
while undergoing electro convulsion therapy and wasn’t given a relaxant drug or
restrained.4 There
were conflicting opinions towards the treatment but the court held a doctor is
not guilty if he has acted in accordance with a practice accepted as proper by
a reasonable body of medical men skilled in that particular art, but this
doesn’t mean a medical man can carry on with old techniques. This established
the basic professional standard and in Andy’s case, Dr Salt’s reasoning that
x-rays are dangerous and should be avoided where possible won’t hold as the other
doctor said an x ray could’ve prevented this further damage therefore, Dr Salt
didn’t reach this standard and breached his duty towards Andy.

Dr Salt may argue that although he’s in the
minority it’s still a single body of medical opinion that supports his conduct,
however the case of Bolitho v City and
Hackney Health Authority, is applicable here.5
This case limits Bolam as the doctor failed
to attend a patient who died and argued she still wouldn’t have provided
treatment so the court had to see whether it was negligent as there was
conflicting opinions whether to incubate or not. As there is a body of professionals
who agree there would be no successful claim, but the House of Lords said the
court has to be satisfied that the body of opinion relied upon can demonstrate
that there’s a logical basis. Regarding Andy’s claim the courts would identify whether
there was a logical basis for Dr Salt’s belief that x-rays should be avoided and
then determine if he’s negligent.

Causation

The last factor to consider is causation;
there are two forms factual and legal. To determine factual causation we
consider the ‘but for’ test; this was established in Barnett v Chelsea and Kensington Hospital Management Committee to
determine whether the event would’ve occurred but for the act of the defendant.6  In Andy’s case but for the defendant’s
negligence would he the claimant have suffered a loss, no because If Dr Salt had ordered the x-ray Andy’s personal injuries wouldn’t
have escalated as they would have been able to identify that his arm was broken
and use the appropriate treatment, therefore there is evident factual
causation.

Legal causation must also be established, this
is whether the defendants’ negligence is responsible for the claimants’ loss. This
is based on the decision The Wagon Mound
(No 1) this case held that the defendants shouldn’t be held liable for
their negligence when it’s not reasonably foreseeable.7 In
Andy’s case the damage was reasonably foreseeable, therefore Dr Salt fell below
the standard expected of him.

CONCLUSION

In light of all these reasons a concluding
outcome for this case is that Dr Salt is liable in the tort of negligence, as
he breached his duty by not following procedure and ordering an x-ray. As
Andy’s claim meets all the requirements one would therefore advise Andy he will
have a claim.

 

 

 

1 Rothwell v Chemical & Insulating Co Ltd 2007 UKHL 39.

2 Bolam v. Friern Hospital
Management Committee 1957 1 WLR 582 (QB),

3 Blyth v
Birmingham Waterworks Co (1856) 11 Ex. 781

4 Bolam (n9)

5 Bolitho v City and Hackney Health
Authority 1998 AC 232,

6 Barnett v
Chelsea and Kensington Hospital Management Committee 1969
1 QB 428

7 Overseas
Tankship (UK) Ltd v Morts Dock & Engineering Co ( The Wagon Mound) (No 1) 1961 AC 388

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