Tort XVIII - Causation IV
In
McKay v Essex Area Health Authority (1982) the plaintiffs, a mother and her
child sued a doctor for not advising the mother to terminate her pregnancy. The
mother had contracted rubella or German measles while she was pregnant and the
chances were high that the child would be born with serious or severe
disabilities but because the mother was not advised accordingly, she continued with
the pregnancy. The court held that the doctor was not liable under the
circumstances despite the fact that he’d not given the mother suitable medical
advice.
In
today’s dynamic and multi-faceted world, it is possible in many instances to
determine whether a child will be born healthy or otherwise and it may be
appropriate to place a duty on doctors to inform all prospective mothers of any
risks involved with the pregnancy or educate the mothers as to the risks as
soon as the facts become available. The decision to terminate the pregnancy or
otherwise however should be left entirely in the hands of the mother.
The
law must be practical and it has to take into account both the emotional and
economic aspect of things or the E & E factor which is playing an increasingly
greater role in the decisions we make today. The simple fact of the matter is
that some mothers may just not be able to cope with raising a child with
disabilities.
In
most cases it takes its toll on both the mother and the child and this case in
particularly paints a poignant picture because according to the facts both the
child and the mother had decided that the pregnancy, given the facts as they
were, should have been terminated. It goes to show how difficult it is to raise
children with disabilities and the difficulty of growing up with a disability.
In
Junior Books v Veitchi (1983) the plaintiffs entered into a contract with a
company to refurbish their building and the company sub-contracted the flooring
work to another company, the defendants, who specialized in flooring. The
flooring subsequently proved to be defective and as a result the plaintiffs not
only incurred expenditure to have the floor refitted but they also had to have
machines moved and had to put up with all the other inconveniences that
resulted from having the floor refitted. The plaintiffs sued.
The
law in this area seems to be similar to that in contract see Dick Bentley
Productions Ltd v Harold Smith (Motors) Ltd (1965), in that, when a company
claims, professes or accepts the tag or label of being specialists then the
chances are higher that they will be held liable for their negligent acts. The
plaintiffs were successful.
The
plaintiffs were allowed to recover for economic loss and the scope of foresight
or the foreseeability factor or limb was widened or extended to allow the
plaintiffs to claim.
It
is reasonable to say that a specialist or someone who professes to have
specialized knowledge in the field or area would be able to foresee the risk
and likewise would be able to anticipate the damage that would ensue if that
duty was breached or if that risk was to happen.
In
Hotson v East Berkshire Health Authority (1987) the plaintiff fell off a tree
and as a result he suffered from a fractured hip and was taken to a hospital
but the hospital failed to treat the injury and the plaintiff was sent home
instead. He continued to complain of severe pain and was taken back to the
hospital 5 days later and the x-ray that followed revealed the extent of the
injury as a result of which the plaintiff developed a permanent disability
which might lead to further complications later. The plaintiff sued.
According
to the facts, even if the plaintiff had been treated the first time he’d been
taken to the hospital, there was only a 25% possibility that he would have been
treated successfully. There was a 75% chance that he would still develop a
disability and the prospects of future complications arising out of the
disability was still a possibility.
In
line with the decision in Barnett v Chelsea Hospital Management Committee
(1969) the plaintiff’s claim failed. The doctor would only be liable if the
plaintiff could have been treated successfully and because there was a 75%
probability that the plaintiff would have still developed a disability even if
he had been treated the first time around, the doctor was held to be not
liable.
Copyright
© 2019 by Dyarne Ward
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