2017 ZA/B Question 6 - MIX
Jenny decided to celebrate her 40th birthday by, for the first time in her life, joining a local gym, Step Up. The
practice in Step Up is to devote the first session – of one hour duration – to a health check-up, including heart
and blood pressure checks – and a session with one of the personal trainers, who would demonstrate the
equipment and draw up an exercise routine to suit the gym member. Jenny was assigned to Magdela, a personal
trainer of 15 years’ experience at a number of well-known gyms. Magdela failed to read up on the Step Up
protocols and so did not conduct the health check. In her defence, Magdela claimed that gyms do not usually
conduct health checks and, therefore, even if she had known of the Step Up requirements, she would not have
considered it necessary to carry out the health checks. All seemed to be going well until Jenny suffered agonising
pain as a result of a twisted muscle, caused by pulling onto a weight too quickly and without engaging the correct
posture. Jenny was taken to hospital where she also developed chest pains. Within an hour of her arrival at the
accident and emergency department of Toddington Hospital, Jenny went into cardiac arrest (heart attack). It
transpired that Jenny had a heart problem which would have been revealed if the health checks had been
performed. Saviour, the junior doctor in charge, was so anxious to deal with the cardiac arrest that he completely
forgot to deal with the muscle strain problem. Unfortunately, the muscle injury was more serious than had been
thought and Jenny is now permanently disabled. Advise Jenny to her rights and liabilities in the tort of
negligence.
In advising, Jenny would bring action against M for the failure to check her health which result in J went into
cardiac arrest (heart attack) and Jenny will also bring action against the doctor for his careless act of forgot to
deal with muscle strain problem which made the muscle injury more serious and J’s permanently disabled.
If J can prove tort was committed by M and doctor, under vicariously liability J can bring action against the
employer (ie. local gym and the Toddington Hospital) as relationship which warrants an imposition of such
responsibility provided the tort committed by tortfeasor in the course of employment. Although employers is
not personally at fault and his liability is not dependent on such fault. (Various Claimants v Catholic Child
Welfare Society).
According to Lochgelly Iron v Mc Mullan, J will need to prove on a balance of probabilities that there is an
existing duty of care and the defendants breached it, causing some damage to them and the damage is not to
remote.
Frist issue whether the defendant owes a duty of care to claimants?
According to Robinson v Chief Constable of West Yorkshire Police, court will consider what has been decided
previously and follow the precedents. Is no decided precedent, court will consider the closest analogies in the
existing law and weight up the reasons for and against imposing liability (incremental approach). However, court
will resort to Caparo test (ie. foreseeability, proximity, just, fair and reasonable) only where it is invited to depart
from precious authority (novel situation).
JvM
Applying to the fact, following precedent duty of care is owed by the M to J based on contractual relationship.
Thus, duty of care establishes.
J v Doctor
Applying to the fact, following precedent duty of care is owed by the doctor to patient J. Thus, duty of care
establishes.
Second issue whether the defendant breach the duty of care to claimant?
This will be based on whether they will be judged based on the reasonable man standard (Blyth v Birmingham
Waterworks) or professional body standard (Bolam v Friern Hospital Management Committee).
Professional body judged by the std of ordinary skilled man exercising and professing to have that particular
skill, hence professional man judge by his peers. In Bolam v Friern Hospital Management Committee, court
, state a medical practitioner is not guilty of negligence if he has acted in accordance with acceptable practice
endorsed by a reasonable, respectable and responsible school of thought within his profession. Regardless of
presence of opinions to contrary because there will always be genuine difference of opinion and practice within
any given profession, there is seldom one answer. Even judge prefer one opinion over the other but this is not
sufficient to establish negligence.
However, in Bolitho v City of Hackney Health Authority court states a doctor does not escape liability by merely
forwarding evidence by a number of experts who claim to represent a reasonable, respectable and responsible
school of thought. A reasonable, respectable and responsible school of though is one whose views are capable
of logical analysis. Bolam test was not end all test, that the court reserved their right to look beyond it by actively
assessing into justification of the defendant doctor’s practice, based on a logical analysis of why such an opinion
was formed, as well as a risk analysis against competing options. This approach allows judges to choose between
two different bodies of opinion if they feel that one of them is not logically defensible. However, his lordship
highlighter that expect evidence will rarely be considered unreasonable.
JvM
Bolam Test can apply to the non-medical context a well. In Adams v Rhymney Valley DC relevant skill pertained
to the design of council house window applied Bolam Test. It is clear from the fact as professional personal gym
trainer professional body standard will apply.
Question to ask whether M failure to check J’s health is acceptable practice endorsed by a reasonable,
respectable and responsible school of thought within his profession (ie. any other professional trainer)? Since
Magdela failed to read up on the Step-Up protocols and so did not conduct the health check, it will be breach of
duty.
Although M would argue claimed that gyms do not usually conduct health checks and, therefore, even if she had
known of the Step Up requirements, she would not have considered it necessary to carry out the health checks.
In Bank Montreal v Dominion Guarantee, court have not accepted common practice as a conclusive defence.
Neglect of duty does not cease by repetition to be neglect of duty. However best practice or professional
guidelines may be relevant evidence that court will take note in reaching its decision.
J v Doctor
Clearly, defendant here as doctor professional body standard will apply.
In Wilsher v Essex AHA court states personal attributes and experience of the defendant are generally disregard
in negligence claims, if doctor does not have the requisite degree of skill for the role in which they are acting,
the employer (ie. hospital) will be liable for putting the employee (ie. doctor) in a position that was too advanced
for their abilities. Unless, the doctor missed key symptoms of patient then he found to be in breach of duty.
Applying Wilsher to the fact, junior doctor attend J will disregard, the question will be whether the doctor has
put in too advance position or doctor missed key symptoms (ie. muscle strain problem). According to the fact,
junior doctor was so anxious to deal with the cardiac arrest that he completely forgot to deal with the muscle
strain problem, its suggest doctor deliberately carelessly missed key symptoms of J.
Applying Bolam and Bolitho test, the doctor is in breach of duty as forgot to deal with the muscle strain problem
as it is not within acceptable practice endorsed by a reasonable, respectable and responsible school of thought
within his profession and there is no reasonable, respectable and responsible school of though is one whose
views are capable of logical analysis.
Third issue whether the breach of duty by the defendant cause the damage to claimant?
The claimant’s need to satisfy the but for test in Barnett v Chelsea.
JvM
The question to be asked will be, but for the M failure to check J health would J went into cardiac arrest (heart
attack)? The answer is no base on the fact Jenny heart problem which would have been revealed if the health
checks had been performed, thus causation establish.
Jenny decided to celebrate her 40th birthday by, for the first time in her life, joining a local gym, Step Up. The
practice in Step Up is to devote the first session – of one hour duration – to a health check-up, including heart
and blood pressure checks – and a session with one of the personal trainers, who would demonstrate the
equipment and draw up an exercise routine to suit the gym member. Jenny was assigned to Magdela, a personal
trainer of 15 years’ experience at a number of well-known gyms. Magdela failed to read up on the Step Up
protocols and so did not conduct the health check. In her defence, Magdela claimed that gyms do not usually
conduct health checks and, therefore, even if she had known of the Step Up requirements, she would not have
considered it necessary to carry out the health checks. All seemed to be going well until Jenny suffered agonising
pain as a result of a twisted muscle, caused by pulling onto a weight too quickly and without engaging the correct
posture. Jenny was taken to hospital where she also developed chest pains. Within an hour of her arrival at the
accident and emergency department of Toddington Hospital, Jenny went into cardiac arrest (heart attack). It
transpired that Jenny had a heart problem which would have been revealed if the health checks had been
performed. Saviour, the junior doctor in charge, was so anxious to deal with the cardiac arrest that he completely
forgot to deal with the muscle strain problem. Unfortunately, the muscle injury was more serious than had been
thought and Jenny is now permanently disabled. Advise Jenny to her rights and liabilities in the tort of
negligence.
In advising, Jenny would bring action against M for the failure to check her health which result in J went into
cardiac arrest (heart attack) and Jenny will also bring action against the doctor for his careless act of forgot to
deal with muscle strain problem which made the muscle injury more serious and J’s permanently disabled.
If J can prove tort was committed by M and doctor, under vicariously liability J can bring action against the
employer (ie. local gym and the Toddington Hospital) as relationship which warrants an imposition of such
responsibility provided the tort committed by tortfeasor in the course of employment. Although employers is
not personally at fault and his liability is not dependent on such fault. (Various Claimants v Catholic Child
Welfare Society).
According to Lochgelly Iron v Mc Mullan, J will need to prove on a balance of probabilities that there is an
existing duty of care and the defendants breached it, causing some damage to them and the damage is not to
remote.
Frist issue whether the defendant owes a duty of care to claimants?
According to Robinson v Chief Constable of West Yorkshire Police, court will consider what has been decided
previously and follow the precedents. Is no decided precedent, court will consider the closest analogies in the
existing law and weight up the reasons for and against imposing liability (incremental approach). However, court
will resort to Caparo test (ie. foreseeability, proximity, just, fair and reasonable) only where it is invited to depart
from precious authority (novel situation).
JvM
Applying to the fact, following precedent duty of care is owed by the M to J based on contractual relationship.
Thus, duty of care establishes.
J v Doctor
Applying to the fact, following precedent duty of care is owed by the doctor to patient J. Thus, duty of care
establishes.
Second issue whether the defendant breach the duty of care to claimant?
This will be based on whether they will be judged based on the reasonable man standard (Blyth v Birmingham
Waterworks) or professional body standard (Bolam v Friern Hospital Management Committee).
Professional body judged by the std of ordinary skilled man exercising and professing to have that particular
skill, hence professional man judge by his peers. In Bolam v Friern Hospital Management Committee, court
, state a medical practitioner is not guilty of negligence if he has acted in accordance with acceptable practice
endorsed by a reasonable, respectable and responsible school of thought within his profession. Regardless of
presence of opinions to contrary because there will always be genuine difference of opinion and practice within
any given profession, there is seldom one answer. Even judge prefer one opinion over the other but this is not
sufficient to establish negligence.
However, in Bolitho v City of Hackney Health Authority court states a doctor does not escape liability by merely
forwarding evidence by a number of experts who claim to represent a reasonable, respectable and responsible
school of thought. A reasonable, respectable and responsible school of though is one whose views are capable
of logical analysis. Bolam test was not end all test, that the court reserved their right to look beyond it by actively
assessing into justification of the defendant doctor’s practice, based on a logical analysis of why such an opinion
was formed, as well as a risk analysis against competing options. This approach allows judges to choose between
two different bodies of opinion if they feel that one of them is not logically defensible. However, his lordship
highlighter that expect evidence will rarely be considered unreasonable.
JvM
Bolam Test can apply to the non-medical context a well. In Adams v Rhymney Valley DC relevant skill pertained
to the design of council house window applied Bolam Test. It is clear from the fact as professional personal gym
trainer professional body standard will apply.
Question to ask whether M failure to check J’s health is acceptable practice endorsed by a reasonable,
respectable and responsible school of thought within his profession (ie. any other professional trainer)? Since
Magdela failed to read up on the Step-Up protocols and so did not conduct the health check, it will be breach of
duty.
Although M would argue claimed that gyms do not usually conduct health checks and, therefore, even if she had
known of the Step Up requirements, she would not have considered it necessary to carry out the health checks.
In Bank Montreal v Dominion Guarantee, court have not accepted common practice as a conclusive defence.
Neglect of duty does not cease by repetition to be neglect of duty. However best practice or professional
guidelines may be relevant evidence that court will take note in reaching its decision.
J v Doctor
Clearly, defendant here as doctor professional body standard will apply.
In Wilsher v Essex AHA court states personal attributes and experience of the defendant are generally disregard
in negligence claims, if doctor does not have the requisite degree of skill for the role in which they are acting,
the employer (ie. hospital) will be liable for putting the employee (ie. doctor) in a position that was too advanced
for their abilities. Unless, the doctor missed key symptoms of patient then he found to be in breach of duty.
Applying Wilsher to the fact, junior doctor attend J will disregard, the question will be whether the doctor has
put in too advance position or doctor missed key symptoms (ie. muscle strain problem). According to the fact,
junior doctor was so anxious to deal with the cardiac arrest that he completely forgot to deal with the muscle
strain problem, its suggest doctor deliberately carelessly missed key symptoms of J.
Applying Bolam and Bolitho test, the doctor is in breach of duty as forgot to deal with the muscle strain problem
as it is not within acceptable practice endorsed by a reasonable, respectable and responsible school of thought
within his profession and there is no reasonable, respectable and responsible school of though is one whose
views are capable of logical analysis.
Third issue whether the breach of duty by the defendant cause the damage to claimant?
The claimant’s need to satisfy the but for test in Barnett v Chelsea.
JvM
The question to be asked will be, but for the M failure to check J health would J went into cardiac arrest (heart
attack)? The answer is no base on the fact Jenny heart problem which would have been revealed if the health
checks had been performed, thus causation establish.
