What is Tort Law

Harry, aged 10, is a pupil at St Botolph’s. One day last year he fell over when running to school and gashed his leg very badly. He managed to hobble into the school to seek help. The school nurse was unwell that day, but Mrs Tourniquet, the biology teacher who has been employed by the school for 2 years, attended to him. Mrs Tourniquet had as a young woman qualified as a nurse, but was not employed in that capacity by the school.

Indeed, following an incident two years ago, she had been told by Marvin not to give nursing assistance to pupils. She washed and disinfected the wound and applied bandages, telling Harry to keep it completely covered for the next week. Harry was in increasing pain during the ensuing week, but his mother, Mrs Woebegone, told him that he should not be childish and that he should do as Mrs Tourniquet had instructed. One evening six days after the fall Harry was in such pain that he removed the bandage. The wound had become seriously infected.

He was taken to hospital, but it was discovered that the infection had spread to the bone. His leg had to be amputated. The school governors have told Mrs Tourniquet that she is dismissed. Advise Harry and Mrs Tourniquet. To explain the actions that Harry and Mrs Tourniquet can and can’t take, it is going to be split into sections to cover the full law over this case. The sections the law is going to be split into are: Negligence, Causation, Duty of Care, Unforeseeable Harm and Tort; then ending with a conclusion.

Each section is going have a short explanation of the law with a link to the case. This should explain to both Harry and Mrs Tourniquet if they have a reasonable case to give in a civil court and what they could base their case around. Negligence ‘The tort of negligence gives rights to persons who have suffered damage to themselves or to their property’ (Adams, 2003) Negligence is the most common cases under tort as it links to all of the accidental injury situations.

A successful claim for negligence would need to be proved that: the defendant owed the claimant a duty of care, failed to perform that duty and resulted in damage to the claimant or the claimant’s property, but the damage was not too remote. The modern law of negligence has been formed around the famous case Donoghue v Stevenson [1932], where Lord Aitken established the neighbour test and explained how you should not harm your neighbour.

The neighbour test explains who is considered as your neighbour in law and that you should commit certain acts or omissions to avoid harming that neighbour. Failure to commit these acts or omissions can be decided fair if the damage is unforeseeable. For Harry to make a claim, it would be under Negligence and would be trialled in a civil court as it is possible that Mrs Tourniquet has not taken reasonable care when attending to Harry’s injury where there is not a duty to attend to the injury at all and it has resulted in serious injury. Duty of Care

‘For a claimant to succeed in Negligence, they must be able to prove that the defendant owed the claimant a duty of care in relation to the harm suffered’ (Kelly. D, et al, 2005) Duty of care is the legal form of a person’s duty to do or not do a certain task. It can vary in many certain cases and peoples roles towards others. An example would be a lifeguard having a duty to save someone drowning in the pool they are attending in the right, legal manor. An example of a case that involves a breach of duty of care is Blake v Galloway [2004].

The neighbour test breaks down the duty of care into 2 relevant needs: reasonable foresight of harm and a relationship of proximity. Certain factors should be weighed in establishing breach, such as a greater risk of injury should ensure bigger precautions being taken to stop that breach occurring. Harry could explain that there is a breach of duty of care as there was a relationship between him and Mrs Tourniquet as she was a teacher at the school and as a qualified nurse she could foresee see that if the wound was not attended to properly, it could cause serious injury.

She should have taken bigger precautions to decrease that risk as she should know about the large risk. Also as she was not employed in that capacity to the school and was told not to give nursing assistance, she has broken the duty not to be involved given by the school. Mrs Tourniquet could argue against this by explaining that the school had broken its duty of care by not having the correct member of staff to deal with injuries such as Harry’s. Therefore, she could have felt it was her responsibility as a qualified nurse to attend to Harry.

Causation Causation shows how the breach of duty of care is the cause of the damage given to the claimant (causal link). Without the causal link between that breach of duty of care and the damage given the case cannot be successful. This link can be a knock-on effect, where one action has led to a chain of reactions that resulted in the damage as long as it is linked well to the breach. Causation is considered relevant to the damage when confirmed by the ‘but for’ test.

This test considers whether the defendant’s negligence was the caused or linked properly the damage to the claimant. An example of the ‘but for’ test being used to decide the negligence of a claimant is the case: Barnett v Chelsea & Kensington Hospital Management Committee [1969]. The test had decided in the case that the defendant could not be liable as he would have died anyway, even if he attended to the patient properly. For Harry, he could argue that using the ‘but for’ test, there is a causal link between the breach of duty of care and the damage to Harry.

Mrs Tourniquet attending to Harry’s injury had led to the infection, which without any further help it then led to the amputation of that leg. There is also a possible causal-link between the school not having the appropriate staff available, leading to the injury not being attended to properly and then leading to the amputation. For Mrs Tourniquet, to defend herself she could argue that there is no direct proof that the cause of the infection was due to her actions.

It may have been a different situation such as Harry or another person may have committed an action that had caused the infection. Therefore, the cause of the infection and amputation would not be linked to her breach. Remoteness ‘Even where causation is established, the defendant will not necessarily be liable for all of the damage resulting from the breach. ’ (Kelly. D, et al, 2005). This means that although the cause of the damage can be linked to the breach, it doesn’t mean that all of the damage caused be the result of that breach.

For example, in both Hoston v East Berkshire AHA [1987] and Gregg v Scott [2005] a misdiagnosis meant that further damage was created to the claimants. Therefore, the defendant should not have to pay for the breach of duty of care the doctors had given as well as their own. For Mrs Tourniquet, she could argue that her breach may have been the cause of the infection, but due to his mother or Mrs Woebegone failure to listen the complaints that Harry had given, (which can be considered as a breach of their duty) had led to the amputation.

This means that all of the damage occurred to Harry cannot be linked completely to Mrs Tourniquet’s breach, making her not liable for the amputation. Conclusion Harry will have a good case if he took it to a civil court as he can prove that Mrs Tourniquet and possibly the school would be liable as they had breached their duty of care. He should explain to the court how she didn’t have the capacity to attend to his injury as she was not employed to do so and told not to by the school. She should of taken bigger precautions because she should have known the extreme consequences if she didn’t.

He should argue that being a qualified that being a qualified nurse, she would have foreseen the infection and amputation. He can show a causal-link between Mrs Tourniquet attending to the injury and the amputation. Mrs Tourniquet can be able to defend herself by trying to say she had a duty of care to attend to Harry’s injury as the school had no one available to do so and reference to the case Barnett v Chelsea & Kensington Hospital Management Committee [1969], saying that the wound would have become infected without her help anyway.

She could explain that she had no intention to cause any harm and actually tried to prevent an infection. She could make a point on how there is no direct proof that she had caused the infection. Or she can try to reduce her liability as Harry’s mother and Mrs Woebegone had failed to stop the infection spreading by listening to his complaints about the pain.