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LAW OF TORTS Question 1 • Amir, an International student at MMU went to a clinic in Bukit Ketil on Monday night to seek treatment for breathing difficulty as a result of asthma that he has been suffering from right from the age of 5. The doctor who was on duty that night failed to look into Amir’s medical history and straight away gave Amir some medications which Amir was allergic to. Two hours later Amir died and the autopsy revealed that he died of complications caused by the medications prescribed by the doctor. Do you think that Amir’s next-of-kin has a case against the clinic or doctor?
LAW OF TORTS (b) What are the defences available for a defendant who is being sued for negligence by a plaintiff?
LAW OF TORTS Question 1 Part (a) Answer Plan: • Address the issue (s) that the problematic question is trying to put forward i.e. whether the next-of-kin could argue on the basis of negligence on the part of the doctor or clinic while giving treatment to Amir on that fateful night. (See the relationship between doctor and patient) • Assuming that you have established negligence on the part of the doctor or clinic, then you have to advise the next-of-kin based on the four important elements needed or required in law to establish negligence i.e. duty of care; breach of that duty; damage resulting from the breach; and the damage is not too remote as in unforeseeable by a reasonable person. • Conclusion. Part (b) Answer Plan: Address the defences available for a defendant who is being sued by a plaintiff for negligence. • Conclusion.
LAW OF TORTS Question 1 (Part a) Answer: Introduction: • First define the term ‘negligent’ and point out how the law of tort treats the relationship between a doctor and a patient (Amir). Point out that negligence is a tort which depends on the existence of a breach of duty of care owed by one person to another. Thus, the tort of negligence is committed when a person fails to live up to the standard of care expected of him, as a matter of law and someone else is injured or suffers loss as a result of that. Point out that a doctor owes a duty of care to his/her patient. Point out as to whether there was a breach of that ‘duty of care’, etc.
LAW OF TORTS Question 1 (Part a) Answer: The body: • Point out that a doctor owes a duty of care to his patient i.e. Amir. In assessing the standard of care to be expected in the areas where the defendant is exercising special skill or knowledge, the courts have accepted that within a given profession or trade there must be an ‘objective standard’ i.e. practise across the board. (See the case of Bolam v Friern BarnetHospital Management Committee). Ask yourself whether a professional doctor (i.e. general medical practitioner) would have behaved the way the doctor at the clinic in Bukit Ketil behaved i.e. in prescribing or giving the medications to Amir without making an inquiry into his medical history. Point out that since the facts given addresses the issue or question of treatment, the ‘Bolam test’ applies. (See also the case of Chin Keow v Government of Malaysia & Anor- where the test was followed. Here an Amah was given a penicillin injection at a clinic. She died about an hour later. The court held that the doctor had been negligent as it was expressly written on the patient’s card that she was allergic to penicillin.
LAW OF TORTS Question 1 (Part a) Answer: • Point out that there was a breach of the duty of care from the doctor’s part. Why? He failed to live up to the expectation of a professional exercising special skill or knowledge. (See the case of Dr Soo Fook Mun v Foo Fio Na & Anor- where it was affirmed that the ‘Bolam Test’ is the applicable principle in determining the standard of care of doctors as to change this might lead to defensive medicine). See also the rationale laid down in the case of Hotson v East Berkshire Health Authority- where the COA treated the evidence as relevant to the issue of damages.
LAW OF TORTS Question 1 (Part a) Answer: • Point out that damage resulted from the breach i.e. two hours later Amir died and the autopsy result revealed that he died from complications caused by the medications prescribed by the doctor. Point out that there was no ‘novus actus interveniens’ as to what caused Amir’s death. It is important to note that in order to determine this, the so-called ‘but for’ test is used. If the harm to the plaintiff would not have occurred ‘but for’ the defendant’s negligence, then that negligence is the cause of the harm. (See the case of Barnett v Chelsea & Kensington Hospital Management Committee but try to distinguish the facts). Take note of the arguments of ‘causation in law’ as well. The above case addresses the other type of causation i.e. causation in fact.
LAW OF TORTS Question 1 (Part a) Answer: • Point out that the damage isn’t too remote as in unforeseeable by a reasonable person i.e. a professional exercising special skills or knowledge. Point out that the damage caused as a result of the conduct of the doctor or defendant here could not be said to be too remote.
LAW OF TORTS Question 1 (Part a) Answer: Conclusion: • Point out that the doctor was liable for being negligent in administering treatment to his patient Amir that fateful night. Why? The doctor failed to live up to the expectation of a professional exercising special skill or knowledge as established in the case of Bolam or what is referred to as the ‘Bolam Test’. Hence, as a general medical practitioner, a doctor is always expected to inquire into the medical history of his or her patient before administering treatment.
LAW OF TORTS Question 1 (Part b) Answer: Introduction: • Point out the general rule regarding ‘negligence’ discussion in tort i.e. the defendant would be liable if the plaintiff is able to establish the four main principles governing negligence. However, there are exceptions to the general rule. The following are the exceptions:
LAW OF TORTS Question 1 (Part b) Answer: The body: • Contributory negligence- Society also expects a person (plaintiff) to exercise due care for the safety of his own self or property. Therefore, if a plaintiff is negligent in caring for himself in preventing the injury, then he cannot recover full damage from the defendant even though the defendant as also negligent. (See sec 12(1) of the Civil Law Act 1956 stating that where a person suffers damage as a result partly of his own fault and partly of other persons’ fault, damages recoverable shall be reduced to an extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage). See the case of Kwek How Bok v Lee Sing Kweng-where the court held that both the plaintiff and the defendant to be equally negligent in their conducts. • Point out that ‘contributory negligence’ essentially means the plaintiff has breached a duty of care for his own safety, in that he has failed to take reasonable care of himself or his property, which consequently contributed or resulted in his injury.
LAW OF TORTS Question 1 (Part b) Answer: • Assumption of risk-This can be raised when the plaintiff voluntarily assumes a known risk i.e. he/she voluntarily enters into a risky situation knowing the risk. Instead of a “reasonable person” standard, the court here considers the specific facts and circumstances before addressing the issue of damage raised by the plaintiff. In other words, if the plaintiff has an agreement with the defendant that the latter will not be liable if he is negligent, this agreement will allow the defendant to raise the defence of volenti non fit injuria successfully. • Comparative negligence-This is where the court compares the negligence of the plaintiff with that of the defendant and divides the damage between the two parties proportionately.
LAW OF TORTS Question 1 (Part b) Answer: Conclusion: • Point out that although the general rule is that the moment negligence is established by the plaintiff on the part of the defendant by proving all the four elements required, the end result is that the plaintiff may successfully claim for damages. However, there are exceptions in the operation of the doctrine of negligence as addressed above i.e. contributory negligence, assumption of risk and comparative negligence.
