Introduction
This essay examines the legal issues surrounding two distinct incidents involving potential breaches of the duty of care under English tort law. The first incident concerns The Bridgegate School in Brinsford, where a rugby ball, kicked out of the school’s grounds, caused injury to Jamal, a nearby resident. Jamal claims the school’s fencing is inadequate, while the school argues its community value should mitigate liability. The second incident involves Chris, a teacher at the school, who suffered a misdiagnosis by Dr. Sharma at Brinsford General Hospital, resulting in a permanent injury. The key question is whether Dr. Sharma breached the standard of care by failing to adopt a new diagnostic method. This essay will assess both scenarios under the principles of negligence, specifically focusing on the duty of care, breach, and relevant defences or mitigating factors. Through an analysis of case law and legal principles, it aims to determine the likelihood of liability in each case, while demonstrating an understanding of the complexities of negligence law in the context of community institutions and medical practice.
The Bridgegate School: Duty of Care and Breach
Under English law, the tort of negligence requires the establishment of a duty of care, a breach of that duty, causation, and damage (Donoghue v Stevenson [1932]). In the case of The Bridgegate School, the first step is to determine whether the school owed a duty of care to Jamal, a neighbouring resident. According to the principles established in Caparo Industries plc v Dickman [1990], a duty of care arises when there is proximity between the parties, the harm is reasonably foreseeable, and it is fair, just, and reasonable to impose such a duty. Here, the proximity between the school and Jamal is evident as his property is near the rugby pitch. Furthermore, it is reasonably foreseeable that a ball kicked with significant force could escape the grounds and cause harm, even if such an incident had not occurred before. Therefore, a duty of care arguably exists.
The next issue is whether the school breached this duty by maintaining a six-meter-high fence that failed to prevent the ball from escaping. Breach is assessed by whether the defendant fell below the standard of care expected of a reasonable person (Blyth v Birmingham Waterworks Co [1856]). In Bolton v Stone [1951], the House of Lords held that liability for escaping objects (a cricket ball in that case) depends on the likelihood of harm and the precautions taken. In Bolton, a fence was deemed sufficient as the risk was minimal. However, Jamal argues the fence was too low, implying the school’s precautions were inadequate. Given that the incident was unprecedented, the school might contend that the likelihood of such an event was low, and a six-meter fence was a reasonable precaution. Yet, the severity of the injury—a fallen chimney causing a serious head wound—suggests that the potential harm was significant, which could tip the balance towards a finding of breach if a higher fence was a feasible option.
The school’s argument that its community role should exempt it from liability raises questions of policy. While courts may consider public benefit in negligence cases, as seen in Hill v Chief Constable of West Yorkshire [1989], such factors rarely override a clear breach of duty unless enshrined in statute or precedent. The school’s valuable function in a deprived area is a compelling social argument, but it is unlikely to negate liability if a breach is established. Ultimately, the court would weigh the cost and practicability of additional precautions against the risk of harm. Without specific evidence on industry standards for school fencing, it remains uncertain whether a breach occurred, though Jamal’s case has a plausible basis.
Dr. Sharma: Standard of Care in Medical Negligence
Turning to the second incident, the issue is whether Dr. Sharma breached the standard of care owed to Chris by failing to use a new diagnostic method for detecting cruciate ligament complications. In medical negligence, a duty of care is readily established between a doctor and patient (Bolam v Friern Hospital Management Committee [1957]). The critical question, therefore, is whether Dr. Sharma’s actions constituted a breach.
The standard of care in medical negligence is typically assessed under the Bolam test, which states that a doctor is not negligent if they act in accordance with a responsible body of medical opinion, even if alternative practices exist (Bolam v Friern Hospital Management Committee [1957]). However, this test has been nuanced by Bolitho v City and Hackney Health Authority [1998], where the House of Lords clarified that the court can reject a body of medical opinion if it is deemed illogical or indefensible. In Chris’s case, Dr. Sharma did not use a new diagnostic method that is now common in other hospitals, though it is not yet adopted at Brinsford General Hospital. If Dr. Sharma’s practice aligns with the hospital’s current protocols and a responsible body of medical opinion, she may not be in breach under Bolam. However, if the new method is widely regarded as superior and essential to prevent serious harm—such as Chris’s permanent inability to play football—the court might scrutinise whether adhering to outdated practices is defensible under Bolitho.
Moreover, the foreseeability of harm is relevant. Given that the complication could have been prevented with the new method, the risk of misdiagnosis arguably should have been apparent to a competent practitioner aware of emerging standards. Cases like Montgomery v Lanarkshire Health Board [2015] further emphasise the importance of keeping pace with medical advancements, particularly in ensuring informed consent, though this case focuses more on treatment disclosure. If evidence suggests that the new method is a clear improvement and reasonably accessible, Dr. Sharma’s failure to adopt it could constitute a breach. Conversely, if Brinsford General Hospital’s non-adoption reflects systemic issues (e.g., lack of training or resources), individual liability might be mitigated, shifting focus to institutional negligence—an angle beyond the scope of this essay.
Conclusion
In conclusion, both The Bridgegate School and Dr. Sharma face potential liability for breaches of their respective duties of care, though the outcomes depend on specific factual and legal nuances. For the school, a duty of care to Jamal is likely established, and liability hinges on whether the six-meter fence was a reasonable precaution given the risk and severity of harm. The school’s community role, while socially significant, is unlikely to absolve it of responsibility if a breach is found. For Dr. Sharma, the standard of care under Bolam and Bolitho will determine whether failing to use a new diagnostic method constitutes negligence, particularly if the method represents a widely accepted improvement. Both cases highlight the broader tension between reasonable care and contextual constraints—whether resource limitations at a school in a deprived area or outdated hospital practices. Courts must balance these factors against the fundamental duty to prevent foreseeable harm. Further research into specific standards for fencing and medical diagnostics would be necessary to reach a definitive conclusion, but this analysis underscores the complexity of negligence law in balancing individual rights with systemic realities.
References
- Blyth v Birmingham Waterworks Co (1856) 11 Ex Ch 781.
- Bolam v Friern Hospital Management Committee [1957] 1 WLR 582.
- Bolitho v City and Hackney Health Authority [1998] AC 232.
- Bolton v Stone [1951] AC 850.
- Caparo Industries plc v Dickman [1990] 2 AC 605.
- Donoghue v Stevenson [1932] AC 562.
- Hill v Chief Constable of West Yorkshire [1989] AC 53.
- Montgomery v Lanarkshire Health Board [2015] UKSC 11.
- Andrews, N. (2015) Principles of Tort Law. Cambridge University Press.
- Deakin, S. and Markesinis, B. (2019) Markesinis and Deakin’s Tort Law. 8th edn. Oxford University Press.
- Harpwood, V. (2009) Modern Tort Law. 7th edn. Routledge-Cavendish.
- Herring, J. (2017) Medical Law and Ethics. 6th edn. Oxford University Press.
- Lunney, M. and Oliphant, K. (2017) Tort Law: Text and Materials. 6th edn. Oxford University Press.
- McBride, N. J. and Bagshaw, R. (2018) Tort Law. 6th edn. Pearson Education Limited.
- Stauch, M. and Wheat, K. (2015) Text, Cases and Materials on Medical Law and Ethics. 5th edn. Routledge.
