It can also be stated that the likelihood of such injury's occurring is great. In Hilder v Associated Portland Cement Manufacturers Ltd10 the defendants allowed small boys to play football on their land. One of the boys kicked the ball on to the road and caused the claimant's husband to die in the accident. It was held that the defendant was negligent, as a reasonable man would have concluded that there was a risk of injury to road users and such risks were not so small. The same can be said in Baljit's situation. As a doctor, Dr Khan, owes a duty of care to his patients and bad medical practice may be a breach of that duty.
It was held that a person who claims to have a special skill, is judge, not according to the standard of the reasonable man in the streets, but according to the standards of the reasonable person in that profession. This was established in Bolam v Frien Hospital Management Committee11, where it was stated that "the test is the standard of the ordinary skilled man exercising and professing to have that special skill12". In Wilsher v Essex Area Health Authority13 the Court rejected the argument that a junior, inexperienced doctor owes a lesser standard of than a more experienced doctor does.
It was pointed out that an inexperienced doctor who was required to do a task requiring specialist skills could satisfy the standard of care required of him by seeking the help and advice of his superiors. It can therefore be determined that although, Dr Khan, was a junior doctor, he can not release himself from the standard of care required by him. The law expects Dr Khan to show the degree of competence usually expected by an ordinary member of that profession, and by incorrectly administering the injection, Dr had fallen below the level of competence required by him.
The concept of intervening cause is often encapsulated in the phrase 'nova actus interveniens'. Nous actus interveniens is the new intervening cause which breaks the chain of causation. The chain of causation may be broken by the claimant, an act of god or by a third party. Lord Wright stated that "to break the chain of causation it must be shown that there is something which I call ultroneous, something unwarrantable, a new cause… 14". The law will regard any damages occurring after the intervening cause as being 'too remote' and the defendant will not be liable for this damage.
If the doctrine of nous actus interveniens is applied, Baljit will not be liable for Chris's brain damage if it can be established than the intervening act of the doctor broke the chain of causation. In Rouse v Squires15 a defendant through his negligent driving collided with a another car. Defendant two then negligently collided with the vehicles involved in the first accident and killed the claimant. If was held that the first defendant's negligence was an operative cause and the second accident did not break the chain of causation. However, in Knightly v Jones16 the defendant's negligence caused an accident and a tunnel was blocked.
A police inspector sent the claimant into the tunnel, having forgotten to close the tunnel beforehand. There was a second collision and the claimant was injured. It was held that the defendant, whose negligence caused the initial accident was not liable for the subsequent collision as the chain of causation had been broken by the police officer. Baljit can argue that Chris's brain damage was due to the carelessness of the doctor as he administered the injection incorrectly and by injecting Chris, the doctor had intervened in Baljit's careless act and therefore broke the chain of causation.
Judith's pre-existing injury has an important significance when establishing whether her death was a cause of the actual breach. The main test used in determining causation is the 'but for' test. In Cork v Kirby MacLean 17 Lord Denning said that "… if the damage would not have happened but for a particular fault, then that fault is the cause of the damage; if it would happen just the same, fault or no fault, the fault is not the cause of the damage18". The 'but for' test is straightforward, however it becomes difficult when there is a pre- existing condition which causes the damage.
In such cases the defendant's liability will lessen. In Cutler v Vauxhall Motors19 the claimant suffered a graze due to the negligence of the defendant. It was discovered that the claimant had a pre-accident condition of varicosity. An ulcer had appeared on the graze and it was operated on in order to cure the condition. The claimant sued for damages. However, it was held that the claimant could not claim for the loss as the condition was not connected with the negligence of the defendant and it would have required treatment in the future.
The defendant's negligence was therefore not a cause of the claimant's loss. Baljit can argue that as Judith, for a number of years, had already been receiving treatment for a heart defect, her heart attack was not caused by his negligence. Her hearts condition was already weak and she would have suffered such a loss sometime in the future. A defence that Baljit may rely upon is 'Contributory Negligence'. This is where a claimant suffers damage partly through his/her own negligence as well as the defendant's negligence.
A result of this may reduce the amount of damages recovered from the defendant. For a successful defence of contributory negligence a defendant must prove there was fault of the part of the claimant and it was the claimant's negligence that was a cause of the damage. In Froom v Butcher20 the claimant was injured when his car collided with the defendant's car. Although the accident was caused by the defendant's negligence, the claimant would not have suffered head and chest injuries had he been wearing a seat belt.
Baljit can use this defence if Brian tried to argue that he lost his leg as a result of Baljit's negligence. Baljit can then argue that Brian would not have suffered such injuries had he been wearing a seat belt. Statute's have imposed time limits within which an action in tort must be brought against a derfendant. A claimant, must therefore commence his/her proceedings with the period stated. S11(4) of the Limitation Act 1980 states that an personal injury action must be brought within three years from the date it occurred or from the date of knowledge of the injury.