The first issue is wheather doctor dougie owe a common law duty of care to will and Edward. In Donoghue v stevenson15 Lord Atkin stated that; foreseability and promixtity are principles which determined a duty of care. There will be no dispute about the duty of care. It is well established that a doctor owes a legal duty of care to his patient. In addition to the existence of a legal duty of care, it must also be shown that Dougie breach that duty of care. That is, he acted below the standard of care expected of a reasonable doctor.
The standard of care demanded by the law of negligence of a professional doctor is that of any such person possessed of the skills required to do that job, namely, "the standard of an ordinary skilled man exercising and professing to have that special skill"16. This is irrespectable of wheather doctor Dougie is a junior doctor or it is his first day at work. This principle was established in Nettleship v Weston17 were the plaintiff gave the defendant a driving lessons.
The defendant struck a lamp-post and the plaintiff was injured. It was held that the defendant, although a learner driver, would be judged by the standard of the average competent driver. This normal standard applied to determine negligence is an objective, normative standard. It is a question of what the hypothetical reasonable man ough to have done. 18 It is not a question of what could we have expected doctor Dougie to do in this circumstance. Rather, what could we expect a "reasonable" doctor to do.
Although the "reasonable" person is sometimes personifies as the "man on the Clapham omnibus",19 it is important to appreciate that the standard of care the law requires is sometimes a poor reflection of that standard. Situations such as policy and the surrounding facts have a huge influence on the judges decisions. In Nettleship v Weston, the defendant was insured. However, the court might be more generous in their interpretation of reasonableness in the case of an uninsured defendant, or, most appropriately in medical cases(NHS) were the judges will go to peculiar lengths not to award damages out of tax-payers money.
The fact that another doctor, might have examined Edward in a careful way begs the question; whether Dr. Dougie was negligent in carelessly examining Edwards's injured leg. The answer lie in two stages; first, it is clear that so long as a significant body of professional opinion, from other Dr, backs the failure to diagnose a broken leg. The second point is that; if the decision Dr. Dougie's careless examination, could be shown to be so unreasonable, a choice that no reasonable doctor could have made it, an action for negligence might still lie Bolitho v City and Hacknery Health Authority. 20
"However, in the context of actions for medical malpractice, the Bolam test has come to be seen as placing too much control in the hands of the profession, through expert witnesses enabling it, effect to set its own standard of care". 21 This principle is more favourable to DR. Dougie has he has more discretion to choose professionals with medical knowledge to show that, any other doctor in his position would have acted in the same manner. This in turn will make it more difficult for Edward and Will to prove negligent against a professional body because of their lack of knowledge and skills in medicine.
However this doesn't totally wipe of doctors liability. As lord Scarman put it in Maynard v West Midlands RHA22. "(A) judges preference for one body of distinguished professional opinion to another also professionally distinguished is not sufficient to establish negligence". In proving causation, the starting point is; "the but for test".
This test is whether but for Tobias flashing the lights on Edward and Will, Edward wouldn't have had a permanent limp and Will wouldn't have sufferd a nerve damage. However, the intervention of Dr. Dougie may be regarded as a nous actus intervention, which breaks the chain of causation. If the Dr.act amounted to a nous actus intervention, this would realise Tiobas from any liability cause. Generally, a third party act will be a nous actus interveiens unless it is natural and probable consequence of the original defendants conduct. 23 This issue seems unlike to prove in regards to Edward as Dr. Dougie only carelessly fair to diagnose a broken limp. He hasn't increase or decrease the damaged caused as shown in Performance cars v Abraham. 24 Wills case on the other hand, there is a greater posssiblitiy of a nous actus interveintion as him carrying the operation on Will actually increased the damage already caused by Tiobas.
however, it might be held that; what Dr. Dougie did only added to the list of factors which might lead to damage nerve. 25 In general, the rule for cause in fact requires a claimant(C) to prove on the balance of probabilities that were it not for the D's fault, the C would not have suffered the harm in respect of which he/she is claiming. This is an all or nothing approach. That is unless Edward can show Dr. Carelessness in examing his leg cause the harm by more than 50% he will not succed. Loss of chance permits C who cannot on the balance of probability standard to nevertheless succeed.
It does so by permitting Edward to claim that the Dr negligence deprived him of some chance of not suffereing a permanent limp. Despite this, the HL in Gregg v Scott26 held that factual causation in medical malpractice cases should not be resolved on a loss of chance basis. This principle means Edward cannot succed on a loss of chance. The decision in Houtson v East Berkshire, Edward will have a claim of succed Failure on Dr. Dougie's path to warn Will of the risk in carrying out the surgery is similar to the case of Sideway v Betham Royal Hospital Gorvernors.
The plaintiff who was suffering from pain in her neck and shoulders, was advised by her doctor to have operation on her back. The surgeon failed to warn her of the small percentage of risk of damages being done to her spinal cord. The operation was carried out with all skilled and care. However, the risk of injury materialised, leaving the plaintiff disabled. She claimed that the surgeon had been negligent in failing to tell her about the risk, and that had she known about it she would not have agreed to the operation.
The House of Lords held that the surgeon was not liable. The Bolam test was considered accordingly, and because the surgeon had conformed with a responsible body of medical opinion which would not have disclosed the risk, he escape liability. According to this case, it is for Dr. Dougie to decide whether, and how much information to reveal to a Will, having regard to his best interest. Dr. Dougie could argue that Will wasn't in the position to make any informed decision and Will was in agony and it was an emergency situation.
Applying this principles, Dr. Dougie would not be held liable. Furthermore, the court would be entitled to consider whether the cost of preventing and operating on Will outweighs the potential consequence in terms of the foreseeability of the harm, the magnitude, the likelihood of the harm, and burden of taking precautions Bolton v Stone. 28 However, in failing to provide a correct diagnosis, Dougie necessarily deprives Will of the opportunity to decide about his own medical care, thereby infringing the very right that the House of Lords was determined to protect in Chester v Afshar29.
The principle that "every individual of adult years and sound mind has right to decide what may or may not be done with his or her body". 30 There is reference to will's age. If he is a child (under 18), he would not satisfied this principle. However if he is above the age of 18 and mentally stable, the Dr will be more likely to be held liable. The remaining issue for the court is whether the doctors negligence was the legal cause i. e. the issue of whether the damage was too remote.
In the wagon mound31; it was held that damages could only be recovered for the type of harm that was reasonably foreseeable albeit that the precise series of events that produced the harm was not foreseen. Dr was aware that there is a 1% risk, so one can hold that he reasonably foresaw the harm. However because the risk was so low, it could be held that the likelihood of harm was very slim. On the assumption that all other doctor's would not have carelessly examine patient or discloused all informations, it remains to be asked whether the Dr Dougie may nonetheless escape liability on other grounds.
The doctor could argue that if he had more time in his hands, he would have had a clearer mind and been able to think symetically but, since both Edward and Will were in pain, it was necessary to act quickly. This was clearly premised in case of Watt v Hertfordshire CC, 32 where the emergency services used an inappropriate lorry to transport a jact needed to rescue a casuality. A fireman was injured when steadying the jack on the lorry. The employer was held not liable. But, there have been cases where emergency vehicles have been driven carelessly, causing harm, and liability has been found Ward v London county council.
33 This is an emergency situation and normally, a special care of standard is given were the defendant is "forced" to act quickly "in the heat of the moment", the standard of care is relaxed to take account of exigencies of the situation. 34 Furthermore, the hospital where Doguie was working at might have been busy and there might have been short-age of doctors. He might have seen 100 of patient and he was naturally tired. The court would look at the surrounding circumstances.