The Memorandum of Law - Case Study Example

MEMORANDUM OF LAW Stallone (the "boy" or "minor together with his parents have a claim against the bicycle courier Sylvester (the "biker forpersonal injury (head injury and brain damage) and damage to property (skateboard) he suffered resulting from the biker's failure to observe the duty of care required of him under the circumstances; (2) the biker's employer Cost Price Courier's (the "employer"); (3) Dr. Rocky (the "doctor") for professional negligence; and (4) the hospital under the principle of vicarious liability. Stallone vs. Sylvester Driver's Duty of Care and Breach. In Nettleship v. Weston1, citing Glasgow Corporation v. Muir2 it was ruled that "if a driver goes off the road on to the pavement and injures a pedestrian, or damages property, he is prima facie liable. Likewise if he goes on to the wrong side of the road. It is no answer for him to say: 'I was a learner driver under instruction. I was doing my best and could not help it.' The civil law permits no such excuse. It requires of him the same standard of care as of any other driver. 'It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question.' The learner driver may be doing his best, but his incompetent best is not good enough. He must drive in as good a manner as a driver of skill, experience and care, who is sound in wind and limb, who makes no errors of judgment, has good eyesight and hearing, and is free from any infirmity."3 Applying the same principle to the instant case, the biker must, whether or not she is driving a car or a bicycle or motorcycle, whether in a road, highway, street, or bicycle path in a local park, as a driver drive in as good a manner as a driver of skill, experience and care, sound in wind and limb, who makes no errors of judgment, has good eyesight and hearing, and is free from any infirmity. But the biker failed to exercise the duty of care incumbent upon him as a driver and a footpath at that where it is expected that a lot of people and pedestrians would be walking about. In Eyres v Atkinsons Kitchens & Bedrooms Ltd.,4 the judge found a driver liable in negligence for personal injury sustained in a road traffic accident because prior to the accident the driver had been exchanging text messages on his mobile phone, and that it had been the driver's inattention through using his mobile phone that caused the accident. Likewise, in the case of R. v Payne (John),5 it was ruled that the driver was rightfully convicted because the driver allowed himself to be distracted whilst driving.6 In the case of the biker, he was not watching where he was going and has in fact been reprimanded by Cost Price Courier's on several occasions for failure to adhere to traffic regulations. Hence, the biker was negligent in his driving and in breach of his duty of care as a driver. Causation. To be able to claim against the for personal injury and/or damage to property under the law of tort and against the doctor for professional negligence, it is imperative for the boy and his parents to establish causation. There is causation when both factual causation and legal causation are present. Factual causation refers to the nexus between the defendant's action and the claimant's damage (the 'but for' test) while legal causation refers to the break or 'novus actus' in the chain of causation. Applying the 'but for' test applied by Lord Denning in Cork v Kirby MacLean [1952], and illustrated in Barnett v Chelsea and Kensington Hospital Management Committee [1969], the boy would not have suffered personal injury (head injuries and brain damage) and damage to property (probably his skateboard) but for failure of the biker to drive properly and carefully considering that he was not looking where he was going and that he has been repeatedly reprimanded by his employer on several occasions for failure to adhere to traffic regulations. The boy and the parents could argue that there is no evidence of a 'novus actus' breaking the chain of causation. The biker is therefore liable to the boy as a result of his negligent driving. The question of whether the biker breached that duty of care depends on the standard of care he owed and whether he has taken reasonable steps considering the circumstances: Latimer v A.E.C. Ltd. (1953). Here, the biker's negligence consists in driving without looking where he was going which under such circumstances is far from meeting the reasonable standard of care. The same standard of care was breached by the biker as to the possible damage caused to the boy's skateboard. Stallone vs. Dr. Rocky The Doctor's Duty of Care and Breach. In medical negligence cases, courts have always utilized the approach to be followed in such circumstances. As in the boy's case, such approach was considered by the House of Lords in Bolitho v City and Hackney Health Authority,7 where Lord Browne-Wilkinson first cited the Bolam test thus: "The locus classicus of the test for the standard of care required of a doctor or any other person professing some skill or competence is the direction to the jury given by McNair J. in Bolam v Friern Hospital Management Committee: 'I myself would prefer to put it this way, that he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art ... Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view'." 8 Simply stated, the duty or standard of care against which a medical personnel is measured is whether such medical personnel acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that art. In the problem, the boy was released immediately without any test being conducted and attended to by a mere first year intern. Clearly, the doctor failed to meet the Bolam test because a failure to perform any test is clearly negligent. Thus, anyone in the doctor's profession should have acted in accordance with the standard practice of performing any routine test in cases of possible head injuires. Such duty and standard of care wouldn't change if the doctor was only a first year intern. In fact, a higher duty of care under the Bolam test would have been expected of him because he is a doctor who is supposed to be more careful and circumspect seeing to it that the proper tests are made prior to the immediate discharge of the boy. In the cases Regina v. Prentice and Regina v. Sullman,9 two junior doctors at a hospital who were carrying out injections on a youth erroneously injected a substance into his spine, as a result of which the patient died. The juniors were convicted of involuntary manslaughter by breach of duty. In the given problem, the failure to perform the routine test necessary on the boy likewise constitutes a breach of duty. Such failure to subject him to testing was the cause of the boy's permanent damage. Factual and legal causation as discussed above is therefore present. Stallone vs. Cost Price Courier's Employer's Vicarious Liability. The boy and his parents may also have a cause of action against the biker's employer under the principle of vicarious liability. In a similar case entitled Hollis v Vabu Pty Ltd, 10 the employer Vabu was found liable for the negligence of the courier which is similar to case of the biker in the given problem. In finding that vicarious liability exists, the court stated that the courier was performing for Vabu its duty to make deliveries to or on behalf of its clients. The courier performed the duty for the economic benefit of Vabu. Hence, the courier was the representative of Vabu. The employer is therefore vicariously liable. Applying the foregoing to the instant case, the employer is likewise liable under the principle of vicarious liability notwithstanding the employer Cost Price Courier's argument that the biker Sylvester is an independent contractor. With more reason in this case where the biker Sylvester has always considered himself to be an employee. Furthermore, the biker does not have his own insurance and he is paid a weekly salary of $500. While he owns his bike as well as the tools he uses to fix the bike and while the employer do not withhold any taxation or superannuation payments from his gross weekly pay, the same factors were considered and present in the Hollis case and yet the court ruled that the employer is vicariously liable to the victim. And so must also be in the given problem. In the recent case of Jones v BBC,11 where a cameraman was found to be in breached of his duty of care and the BBC was vicariously liable for that negligence. In Wilsons & Clyde Coal Company, Limited v English,12 the House of Lords stated as follows: " primarily the master has a duty to take due care to provide and maintain a reasonably safe system of working in the mine, and a master, who has delegated the duty of taking due care in the provision of a reasonably safe system of working to a competent servant, is responsible for a defect in the system of which he had no knowledge" By the Jones and Wilsons cases, it is clear that the employer is under a duty of care to provide the employee with competent fellow employees including a qualified medical personnel, properly maintained site and facilities, and to provide a safe place and system of work. The question of whether the employer breached that duty of care depends on the standard of care owed by the employer to its employee and whether it has taken reasonable steps considering the circumstances.13 In Jones, the breach of the employer's duty consists in BBC's failure (through its safety crew) to discuss with the cameraman and Jones the risk of the falling mast and to warn the cameraman and Jones in unequivocal terms that they must not go beneath it. In Wilsons, the breach by the employer consists of its failure to provide competent fellow employees, properly maintained mine and equipment, and to provide a safe place and system of work. In the case of the boy, the failure of the employer to provide competent biker employees and to properly provide and maintain a safe place and system of work which caused the boy's permanent brain damage constitute a breach of the standard of care required of the employer. The employer courier company cannot invoke the defence that the biker is merely an independent contractor because as the court stated in the Jones case, the BBC had clearly assumed a responsibility for the health and safety of freelancers when they were working on BBC productions that was equivalent to that of an employer to a direct employee. Stallone vs. Hospital Hospital's Vicarious Liability. In the 2007 case of Majrowski v Guy's and St Thomas's NHS Trust,14 the House of Lords stated that under the principle of vicarious liability, a blameless employer is liable for a wrong committed by his employee while the latter is about his employer's business. Hence, the negligence of the doctor to perform the necessary tests on the boy and discharging him immediately can also be attributable to the hospital. The boy, therefore, and his parents likewise have a claim for personal injury against the hospital under the principle of vicarious liability. Stallone vs. Sylvester, Cost Price Courier's, Dr. Rocky and Hospital Consequential Economic Loss. Furthermore, the boy can possibly bring a claim against the biker, his employer, the doctor and/or hospital for all the consequential economic losses (loss of future earnings) that are reasonably foreseeable from his permanent physical injury preventing him from playing and working in the future. As to the remoteness of damage, it is clear that any damage suffered by the boy was directly caused by the biker's negligent drving and medical/professional negligence of the doctor and/or hospital. Hence, the damage cannot be said to be remote. The test for remoteness of damage is that the damage must have been reasonably foreseeable.15 Sylvester vs. Stallone/Parents Defences. The biker may raise the defence that the boy's permanent brain injury or his permanent disability is not caused by the collision, i.e., that there is no causation, but by professional/medical negligence of the doctor and the hospital. Applying the 'but for' test applied by Lord Denning in Cork v Kirby MacLean [1952], and illustrated in Barnett v Chelsea and Kensington Hospital Management Committee [1969], the boy would have made a full recovery but for he had received proper medical treatment. There is no evidence of a 'novus actus' breaking the chain of causation. Contributory Negligence. The biker may also raise the defence of contributory negligence on the part of the boy because the boy was riding his skateboard on the footpath unsupervised and that he was engaging in some dangerous 'flip tricks' on his skateboard. At common law, a defendant could normally escape liability if he could show that, despite his negligence, the harm complained of would not have occurred if the claimant has not contributed to the accident by his own negligence: Butterfield v Forrester (1809). Thus, it can be argued that the boy who is performed dangerous tricks is guilty of contributory negligence. The biker may also argue that the damage suffered by the boy was too remote. The test for remoteness of damage is that the damage must have been reasonably foreseeable: Wagon Mound No 1[1961]. It can be reasonably foreseen that by wrongfully using a footpath in playing with his skateboard, it somehow endangered the boy of being hit by a bicycle and hence, impliedly consented to the danger attendant to it. Parents' Liability for Minors. It must be observed that minors can be fully liable for their torts provided they are old enough to possess any necessary element of intent, though in practice, actions are seldom brought against minors but instead against their parents: Gough v Thorne (1966). In the given problem, it can be argued that the boy is fully liable for his tort because he is already 10 years old who is old enough to possess the necessary element of intent. A parent, however, is not liable for the torts of their children except when he is vicariously liable by having commissioned the tort or the parent is personally liable for the tort or negligence by reason of allowing their children unreasonable opportunity of doing mischief: Bebee v Sales (1916). In the instant case, the biker may argue that the parents of the boy can be held liable for leaving the boy unsupervised while skateboarding. SUMMARY Stallone (the "boy") together with his parents have a claim against: (1) the bicycle courier Sylvester (the "biker") for personal injury (head injury and brain damage) and possible damage to property (skateboard) suffered resulting from the biker's failure to observe the duty of care required of him under the circumstances; (2) the biker's employer Cost Price Courier's (the "employer") under the principle of vicarious liability; (3) Dr. Rocky (the "doctor") for professional negligence; and (4) the hospital under the principle of vicarious liability. BIBLIOGRAPHY Cases Cited Barnett v Chelsea and Kensington Hospital Management Committee [1969] Bennett v Brinks Ltd [1999] C.L.Y. 1378 1999 WL 1111840 Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 583 Bolitho v City and Hackney Health Authority, [1998] A.C. 232 Cork v Kirby MacLean [1952] Davies v Swan Motor Co (Swansea) Ltd [1949] 1 All E.R. Donoghue v. Stevenson [1932] A.C. 562, H.L.(Sc.) Eyres v Atkinsons Kitchens & Bedrooms Ltd., [2007] EWCA Civ 365 Glasgow Corporation v. Muir [1943] A.C. 448 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 Kaye v Alfa Romeo (GB) (1984) 134 N.L.J. 451 Latimer v A.E.C. Ltd.[1953] Lindesay v Lamb [2007] EWHC 2948 (QB) Majrowski v Guy's and St Thomas's NHS Trust, 1 A.C. 224 [2007] McDermid v Nash Dredging and Reclamation Co. Ltd. [1987] McNamara v. Duncan [1979] A.L.R. 584 Nettleship v. Weston, [1971] 3 W.L.R. 370 Pitcher v Huddersfield Town Football Club Ltd, Unreported (QBD) R. v Payne (John), [2007] 2 Cr. App. R. (S.) 45 Reg. v. Billinghurst [1978] Crim. L.R. 553 Regina v. Prentice and Regina v. Sullman, [1993] 3 W.L.R. 927 Richardson v Davies, [2006] C.L.Y. 2879 (CC (Medway)) Richley (Henderson) v Faull (Richley, Third Party)[1965] 3 All E.R. 109 Richley (Henderson) v. Faull. Richley, Third Party [1965] 1 W.L.R. 1454 Robertson v Klos, [2005] HCJAC 136) Wagon Mound No 1[1961] Watson v. Thomas S. Whitney & Co. Ltd. [1966] 1 W.L.R. 57) West Bromwich Albion Football Club Ltd v. Mohammed El Safty, [2007] P.I.Q.R. P7 Case Comments "Cause in Fact and the Scope of Liability for Consequences" (2003) 119 L.Q.R. 388 Charlish, A Reckless Approach To Negligence, J.P.I. Law 2004, 4, 291-296 Read More