The following is a written opinion on the related cases of John Russell, Patrick James, Owen David, Anne Sparks, Herbert Regan, South Herts Police Authority and The Metropolitan Police Commissioner. In order to give an objective opinion of the subsequent legal problem, it is essential to focus on the different elements of the stated facts. The first element in the claimant's case is whether a duty of care was owed to take reasonable care. The question, which then arises on the part of the defendants, is whether any liability attached to them will also be attached to their employers as they were acting in the course of their employment.
John Russell v. Herbert Regan Firstly it must be established whether or not a duty of care was owed. For a successful claim of negligence1, the following need to be taken into consideration. o Did the defendant owe the claimant a duty of care? o Was there a breech of that duty? o Did the breech cause the harm? All parts of this equation need to be present for a claim, if one part is present without the other, counsel for the claimant cannot rely on this. To further establish this duty, it must be considered whether there was proximity2 and / or reasonable foreseeability as in the case of Heaven v.
Pender 1883. However, the law protects certain professionals, floodgates are a policy consideration and the reverse of this is known as the beneficial effect, Hill v. Chief Constable of West Yorkshire 19883. The law requires defendants to measure up to an objective standard of care; the question that is to be asked is 'what level of care and skill was required by the activity which the defendant was pursuing? ' rather than 'what could this defendant have done? ' as put by Lord Macmillan in the case of Glasgow corporation v. Muir 1943
On the assumption that a duty of care was owed to the claimant, the defence may assert the following; was Regan in breech4 of his duty to road users even though he was acting in course of his employment? It could be said that a police officer that is in pursuit of a stolen vehicle carrying suspected attempted murderers owes more duty to the MPC than to another road user at the time. This therefore means if the defendant is liable for any damage caused, vicarious liability5 should also be imposed on the Metropolitan Police Commissioner because the defendants' actions were authorised.
This is well illustrated in the cases of Poland v. John Parr & Sons 19276 and Ready Mixed Concrete ltd v. Minister of Pension & National Insurance 19687. In his statement, the defendant claimed that he was travelling at a speed of 55 miles per hour, the crossing lights indicated green to vehicular traffic and he had no time to stop, because of this, the risk cannot be measured against the precautions that were not taken because he was not aware of the magnitude of the risk, this is supported by Bolton v. Stone 19518.
It is also submitted that the claimant, Mr Russell could have limited these risks by taking more care as an individual, the law may favour the defence on the basis of contributory negligence. In the case of Jones v. Livox Quarries Ltd (1952), Lord Denning stated that 'A person guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckoning he must take into account the possibility of others being careless'
John Russell v. Health Authority On the belief that the defendant owed the claimant a duty of care and this duty was breeched, it must be considered whether the loss sustained is recoverable and if the defendant's negligence was the cause of the loss. However, the law puts a limit on the amount of damages recoverable by rules of remoteness of damage. This area is dominated by two main cases; they are, Re Polemis and Furness, Withy & Co 19219 and Overseas Tankship (UK) Ltd v. Morts Dock & Engineering Co 196110.
Based upon the law in favour of the defendant, it could be argued that the damages suffered by John Russell whilst awaiting treatment was too remote and could not have been foreseen by the hospital. In his witness statement, Peter Marshall, the General Manager of Forte Hill Hospital stated that the resources of the institution were stretched almost to breaking point by injuries resulting from a multiple vehicle traffic accident on the M25 motorway, with this fact, it could be said that the hospital was in fact aware of the possibilities of patients contaminating infections and the effects of open wounds for a certain amount of time.
On the other hand, as the hospital is a publicly funded institution, they cannot be expected to put some patients before others and cannot be responsible for the actions of all in the hospital as in the case of Hughes v. National Union of Mineworkers 199111 For the advantage of the defendants, the rule of Law that protects professionals can apply here. In the case of Rondel v. Worsley 196912, the House of Lords held that a barrister has an immunity from suit at an instance of his client in respect of his conduct and management of a court case and in respect of the preliminary work connected with the case, such as the preparation of pleadings.
This means that a Barrister owes a duty to the Court and not the client, the same could be said of doctors, they owe a duty to the hospital or National Health, not to the patient. From the opinion of other professionals in the medical field13, amputation of the claimant's leg would have been unnecessary had some form of avascular necrosis not invaded his wounds (Roe v. Minister of Health 1954 or Mckay v. Essex Area Health Authority 198214) with this, prosecution may assert that, although the hospital was busy and had many patients to deal with, they knew that the claimant could be infected but failed to recognise the risk.
See Walker v. Northumberland County Council 1995. As a result of this claim against the Health Authority, PC Regan is unlikely to be found liable for the outcome of the claimant's condition due to intervening acts (novus actus interveniens15). If Mr John Russell had been taken to the hospital straight after his accident and given immediate treatment, he would not have contaminated an infection talk less of being amputated, had the circumstances been like this, most of the liability would be on PC Regan and the MPC.
Conversely the chain of causation was broken by the two and a half hour wait, which lead to the infection and amputation, this had nothing to do with PC Regan, he merely started the chain with the road accident but along the lines, this was broken, see Reeves v. Commissioner of Police of the Metropolis 199916. It is therefore submitted that the alternative remedy in this case would be insurance. Patrick James v. PC Herbert Regan In order to claim damages, the claimant must prove that he is suffering from what Lord Bridge described as a 'positive psychiatric illness' in the case of McLoughlin v.
O'Brian 198217, and the defendant must foresee that by his actions there will be a risk of causing this recognised illness for there to be a duty of care. Though the claimant did not suffer any physical damage, prosecution may emphasize that he was a primary victim on the basis that he feared immediate danger and witnessed the whole accident, which resulted in his severe nervous shock18 Dulieu v. White 1901. On the other hand, defence may argue that there was no proximity and the defendant did not have foreseeability.
In the case of Hambrook v. Stokes Bros  the courts allowed a claim based on what the claimant perceived which lead to a nervous shock, this can be implemented in the prosecutions case, Because Mr James believed his brother in law was dead at the time of the accident, it may be to his advantage, (See also Dooley v. Cammel Laird & Co Ltd 19).
Although the class of persons who can sue are not limited to family members alone, the claimant must prove that he and the injured party had a special relationship as in Alcock v. Chief Constable of South Yorkshire Police 20. In his statement, the claimant Mr Patrick James described himself as 'fat and slow and 40' along with these, the fact that he was a widower supports the likelihood of a pre-disposition and questions his weakness and sensitivity in comparison to that of the reasonable man. This is well illustrated by the case of Bourhill v. Young 21. The requirements of the reasonable man standards were clearly articulated by the House of Lords in Glasgow Corporation v. Muir .