Andy actionable damage, duty of care, breach of

AndyAndy’sclaim would be dealt with in the tort of negligence. The four requirementsneeded for negligence claims are; actionable damage, duty of care, breach ofduty and causation. Dr Salt would be liable and Andy would therefore have aclaim in negligence.Actionable damageThe legal issue here is whether Dr Saltshould be liable for failing to order Andy an x-ray.

As already mentioned, Rothwell v Chemical & Insulating Co Ltdestablished that actionable damage could be damage to property or personalinjury.1In this case actionable damage is present here as Andy’s arm is now permanentlydeformed due to Dr Salt’s negligence.Duty of careFirstly, it has to be established whetherDr Salt owed Andy a duty of care.

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The principle provided by Bolam v. Friern Hospital Management Committee states that Dr Salt shouldbehave at the standard of a reasonably competent doctor. Therefore, it can beargued that by not providing Andy with an x-ray he failed to reach thatstandard of care.

2Breach of dutyAgain, this is decided by the objectivetest where the defendant should’ve met the standard of a reasonable person, establishedin Blyth v Birmingham Waterworks Co thatnegligence is failing to do that which a reasonable person would do in the samecircumstance. 3The defendant in this case should’ve met the standardof a reasonable and competent doctor; however he didn’t by not ordering the x-raywhich is usual practice.A relevant legal principle here is Bolam, where the claimant suffered a fracturewhile undergoing electro convulsion therapy and wasn’t given a relaxant drug orrestrained.4 Therewere conflicting opinions towards the treatment but the court held a doctor isnot guilty if he has acted in accordance with a practice accepted as proper bya reasonable body of medical men skilled in that particular art, but thisdoesn’t mean a medical man can carry on with old techniques. This establishedthe basic professional standard and in Andy’s case, Dr Salt’s reasoning thatx-rays are dangerous and should be avoided where possible won’t hold as the otherdoctor said an x ray could’ve prevented this further damage therefore, Dr Saltdidn’t reach this standard and breached his duty towards Andy.

Dr Salt may argue that although he’s in theminority it’s still a single body of medical opinion that supports his conduct,however the case of Bolitho v City andHackney Health Authority, is applicable here.5This case limits Bolam as the doctor failedto attend a patient who died and argued she still wouldn’t have providedtreatment so the court had to see whether it was negligent as there wasconflicting opinions whether to incubate or not. As there is a body of professionalswho agree there would be no successful claim, but the House of Lords said thecourt has to be satisfied that the body of opinion relied upon can demonstratethat there’s a logical basis. Regarding Andy’s claim the courts would identify whetherthere was a logical basis for Dr Salt’s belief that x-rays should be avoided andthen determine if he’s negligent.

CausationThe last factor to consider is causation;there are two forms factual and legal. To determine factual causation weconsider the ‘but for’ test; this was established in Barnett v Chelsea and Kensington Hospital Management Committee todetermine whether the event would’ve occurred but for the act of the defendant.6  In Andy’s case but for the defendant’snegligence would he the claimant have suffered a loss, no because If Dr Salt had ordered the x-ray Andy’s personal injuries wouldn’thave escalated as they would have been able to identify that his arm was brokenand use the appropriate treatment, therefore there is evident factualcausation.Legal causation must also be established, thisis whether the defendants’ negligence is responsible for the claimants’ loss. Thisis based on the decision The Wagon Mound(No 1) this case held that the defendants shouldn’t be held liable fortheir negligence when it’s not reasonably foreseeable.7 InAndy’s case the damage was reasonably foreseeable, therefore Dr Salt fell belowthe standard expected of him.

CONCLUSIONIn light of all these reasons a concludingoutcome for this case is that Dr Salt is liable in the tort of negligence, ashe breached his duty by not following procedure and ordering an x-ray. AsAndy’s claim meets all the requirements one would therefore advise Andy he willhave a claim.   1 Rothwell v Chemical & Insulating Co Ltd 2007 UKHL 39.2 Bolam v. Friern HospitalManagement Committee 1957 1 WLR 582 (QB),3 Blyth vBirmingham Waterworks Co (1856) 11 Ex. 7814 Bolam (n9)5 Bolitho v City and Hackney HealthAuthority 1998 AC 232,6 Barnett vChelsea and Kensington Hospital Management Committee 19691 QB 4287 OverseasTankship (UK) Ltd v Morts Dock & Engineering Co ( The Wagon Mound) (No 1) 1961 AC 388

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