The had a sufficiently proximate relationship; and,

The legal issue is concerned with whether both Hettie
and Andy can action a successful claim in negligence. There are four elements
to such a claim: actionable damage, a duty of care owed by Andy and Dr. Salt
respectively, who breached this duty. In addition, it is necessary that both to
prove that it was said negligent behaviour that caused the loss.

 

There is actionable damage as defined in Rothwell v. Chemical Insulating Ltd1as ‘an abstract concept of
being worse off, physically or economically’ 2 because Hettie has suffered
physical damage to her property, and in particular, her flooring.

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As it has been concluded that Hettie has suffered
actionable damage, it must be considered whether Andy, an apprentice plumber,
owed a duty of care whilst he was fixing her radiators. To establish whether
this duty of care is required, there must be reference to the tri-partite test implemented
by Caparo Industries v. Dickman,3 to be used if there is no direct precedent that can be applied. In
Hettie’s case, where no such precedent exists, there are three criteria to
satisfy: the damage was foreseeable; Hettie and Andy had a sufficiently
proximate relationship; 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 drained
the radiator, the water that remained would leak and damage Hettie’s floor. Even
if as neighbours, the parties did not have a social relationship, they had one of
a professional nature as Andy assumed responsibility for the plumbing work.
With the final criteria, it is fair, just and reasonable for Hettie to claim
damages through tort. Giliker outlines a policy consideration with regards to  pure economic loss as ‘the desire to avoid
crushing liability’5
Although this is a not a claim for pure economic loss, a similar rationale can
be given to the fact that it is fair for Hettie to recover damages to replace
her flooring, without causing a ‘floodgates’ issue.

 

To argue that Andy breached his duty, he must be held
to the standard of care outlined in case law, where ‘negligence
is the omission to do something which a reasonable man … would do, or something
which a prudent and reasonable man would not do’6.
The reasonable
person is someone who is ‘free both from over-apprehension and from
over-confidence’7
However,
as Andy’s negligence occurred in an occupational context, he must be tested against
the basic professional standard highlighted in Bolam v. Friern Hospital Management Committee8 which is ‘the standard of the ordinary
man exercising and professing to have that special skill’9
This has been applied to the medical profession, as in Wilsher v. Essex Area Health Authority10when
a junior doctor was held to the same standard of care as a senior doctor, who
would ordinarily have carried out the task in question. This applies to manual professions,
as held in the case of Wells v. Cooper11
where 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 carpenter
after he had used improper screws to fix a door handle. Therefore, those who
are inexperienced, such as Andy, are held to a professional standard whereby it is presumed that he
is entirely capable. Despite being an apprentice, Andy would be held to the
standard of a professional plumber. As a professional plumber would not have
omitted the process of draining the radiator before cleaning it, Andy breached
his duty of care to Hettie.

 

It must
therefore be established whether Andy was a factual cause, using the ‘but for’
test as in Barnett
v. Chelsea and Kensington Hospital Management Committee12 where
it is asked that
”but for’ the defendant’s conduct, would the damage still have occurred?’13 It is quite clear that if Andy had not
forgotten to drain the water, it would not have damaged Hettie’s flooring. To
test legal causation, there must be consideration for: foreseeability of the ‘kind of damage’, the ‘way damage is caused’ and ‘extent of
the damage’14
and in the circumstances of Andy and Hettie, each criteria can be met, thus
demonstrating that the damage was not remote and was likely to have happened as
a result of Andy’s negligence.

 

Andy would
not be able to use the defences of consent, voluntary assumption of risk, nor
illegality to prove that he was in any way less liable. Therefore, it can be concluded
that Andy was liable and Hettie would be able to claim damages through tort.

 

Andy suffered personal injury by slipping on the floor
but the delay of his treatment lead to deformity, 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 a negligence
claim against Dr. Salt.

 

As it is clear that Andy has suffered actionable
damage, it must be determined whether Dr. Salt owed Andy a duty of care as a
medical professional. It is arguable 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 not
impose liability for what are called pure omissions’18 However, the case of Andy
and Dr. Salt can be distinguished from Michael
v. Chief Constable of South Wales19 where it was held that the Police did not owe a duty of care
because they did not give a time frame for their assistance, meaning they had
not assumed responsibility. In the case of Andy, as Dr. Salt had given him
advice to return in one week, it is arguable that he had assumed responsibility
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 was
in breach of this duty by delaying treatment. In order to argue that Dr. Salt
was in breach of his duty as a Doctor, he needs to be held to the legal
professional standard of care as ‘the standard of the ordinary man exercising and
professing to have that special skill’20 which therefore
suggests 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 opinion
regarding radiation dangers. This is a minority opinion within the profession
as any other Doctor would have carried out an x-ray examination on Andy. It has
been held that ‘a medical man can not obstinately and pig-headedly carry on
with some old technique if it has been proved to be contrary to what is really
substantially the whole of informed medical opinion.’21 This suggests that
because x-rays have been deemed safe to be used when there is a suspected
broken bone, Dr. Salt should have carried out an x-ray, despite his personal
inhibitions. In addition, Dr. Salt also gave Andy one week, where, if symptoms
persisted, 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 a
claimant who suffered from high blood pressure, inevitably lead to further
damage. Therefore, it can be argued that because Dr. Salt did not treat Andy in
accordance to traditional and safe practice, and failed to take precaution, he
breached the duty of care that was owed to Andy.

 

In order to
determine whether Dr. Salt was a factual cause of Andy’s damage, the ‘but for’
test as in Barnett
v. Chelsea and Kensington Hospital Management Committee23 must
be applied.
It is
evident that had Dr. Salt given Andy an immediate x-ray, he would have been
diagnosed with a broken arm, which would have been cast and would have
recovered without causing permanent deformity. Remoteness is tested through the
foreseeability of the ‘kind of
damage’; ‘the way damage is caused’ and of the
‘extent of the damage’24
all of which can be satisfied, as the outcome of Andy’s deformity is not too
remote for the courts not to impose liability on Dr. Salt.

 

Dr. Salt could
not 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 be
able to pursue a case against him through his employer.

 

BIBLIOGRAPHY

 

BOOKS

Giliker, P. Tort, Sweet & Maxwell (6th
edn) 2017

Horsey, K.
& Rackley, E. Kidner’s Casebook on
Torts, Oxford (7th edn) 2017

 

LAW REPORTS

Barnett v. Chelsea and
Kensington Hospital Management Committee 1968 2 WLR 422

Blyth v.Birmingham Waterworks Co 1956 11 Ex. 781

Bolam
v. Friern Hospital Management Committee 1957 1 WLR 582

Caparo
Industries v. Dickman 1990 2 A.C. 605

Glasgow Corporation v. Muir 1943 2 AC 448

Lowe v. Havering Hospitals NHS Trust 2001 EWHC J0622-3

Michael v.
Chief Constable of South Wales 2015 UKSC 2

Rothwell
v. Chemical Insulating Ltd. 2007 UKHL 39

Smith v.
Littlewoods Organisation 1987
UKHL 18

Wells v.
Cooper 1958
3 WLR 128

Wilsher v. Essex Area Health Authority 1988 AC
1074

 

 

1 2007 UKHL 39

2 Rothwell v. Chemical Insulating Ltd. 2007 UKHL 39 7 (Hoffman
LJ)

3 1990 2
A.C. 605

4 Caparo Industries Plc. v. Dickman 1990 2
A.C. 605

5 Paula Giliker, Tort (6th edn, Sweet &
Maxwell 2017) 97

6 Blyth v.Birmingham Waterworks Co 1956 11
Ex. 781 784 (Alderson B)

7 Glasgow Corporation v. Muir 1943 2
AC 448 457 (MacMillan LJ)

8 1957 1 WLR 582

9 Bolam v. Friern Hospital Management Committee 1957 1 WLR 582 3
(McNair J)

10 1988 AC 1074

11
1958 3
WLR 128

12 1968 2 WLR 422

13 Barnett
v. Chelsea and Kensington Hospital Management Committee 1968 2 WLR 422

14 Overseas Tankship (UK) Ltd v. Morts Dock & Engineering Co Ltd 1961
UKPC 2

15 2007 UKHL 39

16 Rothwell v. Chemical Insulating Ltd. 2007 UKHL 39 7 (Hoffman
LJ)

17 1987 UKHL 18

18 Smith v. Littlewoods Organisation 1987 UKHL 18 76 (Goff LJ)

19 2015
UKSC 2

20 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 J0622-3

23 1968 2 WLR 422

24 Overseas Tankship (UK) Ltd v. Morts Dock & Engineering Co Ltd 1961
UKPC 2