The defendants actions

A defendant will only be liable for their carelessness if they owe the claimant a legal duty to take care. Lord Macmillion stated in that; “carelessness alone is not enough. The law takes no cognizance of carelessness in the abstract. It concerns itself with carelessness only where there is a duty to take care and where failure in that duty has caused damage. When looking at negligence both factual and legal causation must also be taken into account. Factual causation is the ‘but for test’ in that the harm would not have occurred ‘but for’ the defendants actions.

In the case of McGhee v National Coal Board[18] it was found that factual causation may be when the defendant materially contributed to the risk of harm. In indeterminate causes, where there is more than one defendant responsible for the harm, the courts will apply the material increase in risk idea which was found in McGhee, therefore being able to find both defendants liable. Legal causation must also be proved, it must be found that there were no intervening acts which broke the chain of causation, and whether the damage caused was not too remote.

The Wagon Mound (No 1)[19] set that the claimants harm will be too remote if the type of damage suffered by the claimant was reasonably foreseeable at the time of the breach. When trying to apply the ‘but for’ test the courts could apply the principle of Fitzgerald v Lane[20], due to the fact that it maybe difficult to find either NHS trust or Northwood County Council liable due to the fact that they both contributed to the harm caused to Jenny. If this is implemented then it should be found that they both contributed to the risk of Jenny getting harmed, and therefore both have factual causation.

In relation to Sophie’s farther he may be liable for battery in trespass to the person. Battery is ‘the application of unlawful force to another person[21]. ’ To be found liable, there must be an intentional application of force, the force must be direct and immediate, and the contact must be unlawful but does not need to be ‘hostile’. Due to the fact that Sophie’s dad told others that he wanted to kill Jenny prior to the attack, the courts should find that ‘on the balance of probabilities’, he intended to attack her. It is not necessary to find whether the defendant intended to cause any harm.

There was a direct and immediate application of force as there was contact between the knife which he was holding, and Jenny. Based on this, it is very likely that Sophie’s dad would have to pay compensation. In regards to the doctor he could be found liable of negligence because, a doctor has a duty to care for patients present in a hospital emergency room. This was found in Barnett v Chelsea and Kensington hospital Management Committee[22]. This precedent would be used to find that the doctor owed a duty of care towards Jenny.

When looking at breaching your duty, if you are exercising an expert skill, the standard of care is then increased to that of a reasonable man who possesses the same expert skill as you. [23] The courts may accept a lower standard of care if the defendant was acting in an emergency situation Wilsher v Essex Area Health Authority[24]. However, if it is a mistake that a reasonably competent doctor would not have made whilst in an emergency, the defendant is likely to be liable for negligence. It must be found that it was the doctor’s actions which caused the harm to Jenny.

Res ipsa loquitur may be applied in order to find causation in negligence. This is a Latin term which translates to mean “the thing speaks for itself”. This was used in the case of Mahon v Osbourne[25] where the courts said that the fact that a swab was left in the patient’s body is enough to prove that the doctor was negligent. When this principle is applied, the burden of proof is then reversed so that it will be on the defendant to prove that he was not negligent. Due to the facts of this case and Mahon being so similar it is likely that the courts will follow this precedent and also find the doctor liable through res ipsa loquitur.

In order for jenny to receive compensation it must be proved that the doctor breached his duty of care, and that the standard of care he was giving was not sufficient and in fact lower than the reasonable doctor. To any reasonable person it may seem obvious that a reasonable doctor should not be leaving a swab inside the body of a patient. Due to the fact that Jenny was treated immediately in Accident and Emergency in his defence it could be argued that he was rushing to see other patients also and that the standard of care could be lowered.

However in a hospital standard must be kept and therefore the standard isn’t going to be lowered so much in that it would allow for mistakes and therefore it is more than likely that the courts will find the doctor has breached his duty of care. Furthermore the fact that the doctor is a junior doctor would not be used in his defence. [26] Jenny may claim battery in trespass for the doctor’s actions. Lord Denning made it clear in Letang V Cooper[27] that for trespass the defendant needs to intend his actions.

Smith LJ expanded this idea in Iqbal v Prison Officers Association[28] by saying that intention also includes being subjectively reckless, therefore if the defendant could foresee that there was a risk of the consequence occurring but carried on anyway, then you may claim through trespass. You will not be liable for trespass if the claimant gives valid consent for the force. It was said in Chatterton v Gerson[29] that as long as you have understood the ‘general nature of the operation’ your consent will be valid, you do not have to be fully informed of the risks.

Considering all the fact presented along with previous case history it is evident that Jenny would likely succeed in claiming compensation from Northwood County Council, the NHS trusts and the doctor, along with compensation from Sophie’s dad through battery. As the injuries sustained to Jenny are so grave, ‘on the balance of probabilities’ at least one party was negligence.


Horsey and Rackley, Tort Law (2nd Edition, Oxford University Press,2011) 383 Steve Hedley, Tort (7th Edition, Oxford University Press, 2011) Paula Giliker and Silas Beckwith, Tort (3rd Edition, Sweet and Maxwell Limited, 2012)