Case Study on Tort

Topics: Duty of care, Tort, Standard of care Pages: 17 (6396 words) Published: April 24, 2013
1.Lochgelly v mc mullan

A miner was killed when part of the coal mine that he was working in fell on top of him. The man’s family successfully sued for damages under the Coal Mines Act 1911 (c 50) s 49 (repealed), which required that an employer must ensure that the roof of every coal mine is made secure and not order an employee to work there if it is not. The coal mine owners appealed the decision, but their appeal was dismissed as it was held that the initial action was competent as their negligence had been proved.

2.Donoghue v Stevenson
A woman ordered a ginger beer in a café which arrived in a dark coloured bottle. After drinking ginger beer the woman saw the remains of a decomposed snail were present in the bottle. The woman claimed against the manufacturer of the ginger beer for damages. It was held that manufacturers owe a duty of care to consumers where the product which leaves them is in the same state as received by the consumer, and where there is knowledge that a lack of reasonable care in the preparation could cause injury to the consumer's life or property 3.Blyth v brimingham

A water company laid water pipes, pursuant to an Act of Parliament, at the required depth and with fire plugs. Twenty years later, and after a very severe frost, a fire plug was dislodged causing water to escape from the main, but due to stopper above the plug being covered with snowfall, the water could not rise to the surface, and instead seeped through the brickwork of the plaintiff's cellar. The plaintiff claimed for damages however it was held that there was no negligence because the incident was unforeseeable and so obscure that it would be monstrous to hold the defendants responsible.

4.Bolam v friern
The plaintiff, suffering from mental illness, consented to electro convulsive therapy resulting in him suffering several fractures. He thereafter claimed damages against the hospital claiming that the treatment had been administered incorrectly and that he had not been advised of the risks. The court found against the plaintiff, with the judge having directed the jury that (1) a doctor is not negligent, if he is acting in accordance with a practice accepted as a proper by a responsible body of medical men skilled in that particular art; (2) the doctor could not be criticised if, believing the dangers involved in the treatment to be minimal, he did not stress them to the patient; (3) in order to recover damages for failure to give warning, the plaintiff must show not only that the failure was negligent but also that if he had been warned he would not have consented to the treatment. 5.ROGERS V WHITAKER

Duty of care
2 The duty owed by a medical practitioner to a patient is a duty to exercise reasonable care: Rogers v Whitaker (1992) 175 CLR 479 at 483 and 489; Strempel v Wood [2005] WASCA 163 [28] per McLure JA. Where the patient consults with the doctor directly and agrees to pay a fee a corresponding duty is owed in contract: Astley v Austrust Ltd (1991) 197 CLR 1. Where a hospital provides the doctor’s service the hospital owes the patient a duty of care: Cassidy v Ministry of Health [1951] 2 KB 343; Samios v Repatriation Commission [1960] WAR 219.

3 At a general level what is more significant about Rogers v Whitaker is what is says about the content of the standard of care that is required to be exercised to discharge the duty of care. That is, what is “reasonable care”?

Standard of care
4 At the level of the specifics of the case Rogers v Whitaker is about liability of a doctor for not warning a patient about a risk that may lead to a potentially serious adverse outcome from a medical procedure.

5 The decision was given in a context of two prior English cases that largely left determination of that standard to the medical provision. The important shift by the High Court in Rogers v Whitaker was to place the principles that determine liability for medical negligence firmly within the constellation of rules...
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