Facts

 Woman was driving on the highway under heavy rainfall, driving 60 km/h, when the car

slid off and overturned

 the man who was a passenger in the car was injured and transferred to a hospital where

he underwent surgery.

 After he was released, he found out that he was infected by a serious virus that could not

had been transmitted to him anywhere but the hospital. and most likely cause for such

virus is contaminated medical equipment

 The hospital has no record of what method of sterilization was used during the man’s

stay.

Issues

 Whether or not is the woman is liable for the man’s injury that was caused by the

accident?

 Is the woman liable for the damages resulting from the man’s infection?

 Whether or not is the hospital liable for the damages resulting from the man’s infection?

Law

 Caparo v Dickman (1990): in order to establish duty of care, there must be reasonable

foreseeability of damage, in addition to a relationship of proximity between the claimant

an the defendant, and it must be just and reasonable to impose the duty.
 Haley v London Electricity Board (1965): “it must be reasonably foreseeable that damage

or injury would be caused to the particular defendant in the case, or to a class of people to

which he or she belongs”

 Muirhead v Industrial Tank Specialities (1985): “proximity does not mean that the

defendant and claimant have to know each other, but that the situations they were both in

meant that the defendant could reasonably be expected to foresee that his or her actions

could cause damage to the claimant.”

 Sutradhar v Natural Environment Research Council (2004) : “proximity in the sense of a

measure of control over and responsibility for the potentially dangerous situation”

 Nettleship v Weston (1971): “a novice driver must have the same standard of care as an

average competent driver”

 O’Connell v Jackson [1972] 1 QB 270: “when passenger injuries is aggravated by his

own fault then damages are reduced”

 Simonds v Isle of Wight Council (2003) : the duty of care is to do what is reasonable

person would do to stop a harm not to do absolutely everything

 Montgomery v Lanarkshire Health Board (2015): “doctors have a duty to warn patients

about ‘material risks’, and said that a risk was material if a reasonable person in the

patient’s position was likely to attach significance to it, or the doctor was or should have

been aware that the patient would attach significance to it”

 Maguire v Harland and Wolff plc (2005) “Where knowledge and practice within a

particular area have changed over time, a defendant is entitled to be judged according to

the standards accepted at the time the alleged negligence happened.”

 Bolam v Friern Barnet Hospital Management Committee (1957) : “A doctor is not guilty

of negligence if he or she has acted in a way which a responsible body of other doctors

would consider to be correct.”

 Barnett v Chelsea and Kensington Hospital Management Committee (1968): “ in order to

establish negligence, it must be proven that the damage would not have occurred but for

the defendant’s breach of duty”

 McGhee v National Coal Board (1972) : “Where there is more than one possible cause of

injury, causation can be proved if the claimant can show that the defendant’s negligence

materially increased the risk of injury occurring.”

 Wilsher v Essex Health Authority (1988): “A claimant must prove, on a balance of

probabilities, that the defendant’s negligence was a material cause of their injury; it is not

enough merely to increase the risk of damage.”

 Hotson v East Berkshire Health Authority (1987) : “In ‘loss of a chance’ cases, claimants

must prove causation on a balance of probabilities, which means proving it was more

likely than not that the negligence caused the injury.”

 Baker v Willoughby (1969): “when the damage gets worse by an intervening event that

breaks the causation then the defendant will only be liable for the original damage”

 Knightley v Johns [1982] 1 All ER 851 :‘Negligent conduct is more likely to break the

chain of causation than conduct which is not.’

 Overseas Tankship (UK) v Morts Dock & Engineering Co (The Wagon Mound) (1961):

“The test for remoteness in negligence is reasonable foreseeability, which means that a

defendant will be liable for damage which was reasonably foreseeable at the time when

the defendant breached their duty”

  Margereson v J W Roberts Ltd (1996), : if the type of damage is reasonably foreseeable

then it does not matter if the actual damage is more severe than foreseen.

 Rouse v Squires [1973] QB 889: “Defendant was held 25% liable for an accident that

resulted from an accident which he caused”

 Scott v London and St Katherine’s Docks (1865): “where there is no actual evidence of

negligence, yet the accident can not had happened if there was no negligence then the

burden of proof shifts to the defendant (Res ipsa loquitur)”

 Road Traffic Act 1988, Section 38(7) : “A failure on the part of a person to observe a

provision of the Highway Code shall not of itself render that person liable to criminal

proceedings of any kind but any such failure may in any proceedings (whether civil or

criminal, and including proceedings for an offence under the Traffic Acts, the M1Public

Passenger Vehicles Act 1981 or sections 18 to 23 of the M2Transport Act 1985) be relied

upon by any party to the proceedings as tending to establish or negative any liability

which is in question in those proceedings.”

Application

(1) Liability for the woman

 The woman has already an established duty of care under the common law and

the road traffic act, to other drivers and passengers to drive carefully and safely,

so it does not matter that she was driving 60 km/h on 80 km/h, as there was

torrential rainstorm which significantly affects the vision, control and maneuver

abilities for any driver. The mere fact that the car overturned is an evidence that

the speed by which she was going is over the speed which an average competent

driver would be driving. Although, it still may be argued that she was driving

below the speed limit, however, The speed limit is designed as guidance for most

situations, in addition it cannot be the only factor in determining the

reasonableness of a driving in certain circumstances, given that there was a heavy

a rainstorm which is clearly an exceptional situation that the speed limit might

not be intended to regulate . Therefore the woman has breached her duty here, as

a reasonable driver would drive slower and the woman must be judged on the

standard of the reasonable driver (Nettleship v Weston).

 Thus there is duty of care, breach of that duty. The damage is represented in the

injuries caused by the accident which was reasonably foreseeable as the woman

could foresee that driving negligently on a wet road would cause the car to lose

balance and flip, injuring the man. It must be noted that the man was wearing his

seatbelt, so no argument of contributory negligence could apply (O’Connell v

Jackson), hence the woman would be liable for $100,000.

 Could the woman be liable for the man’s infection at the hospital?

The infection that the man got is due to the negligence of the hospital and would

be considered as “Novus actus interveniens”. As the negligence of the hospital

 broke the chain of causation between the accident and the viral infection. And this

would make the woman only liable for the accident injuries (Baker v Willoughby).

Also according to Knightley v Johns, negligent conduct from a third party is likely

to break the causation chain. Although an argument of “but for” test ( Barnett v

Chelsea and Kensington Hospital Management Committee) could be made, but

for the accident the man would not have needed surgery thus he would not have

been infected. Nevertheless a counter argument is that the damage is too remote,

since it is not foreseeable for the woman when she committed the tort, that the

accident would lead to a viral infection from the hospital negligence. It would had

been foreseeable if the damage in question was from the same type of injury like

if the original injuries were aggravated by negligence of the

Hospital or weakness in the claimant (eggshell-skull rule). Thus the woman is not

liable for the infection as the chain of causation was broke.

(2) Liability for the hospital

 The hospital has a duty of care to provide the patients with sterilized equipment,

as it is clearly established. And if we applied the caparo test, then it is reasonably

foreseeable that if hospital did not do that then severe damages in the form of

infections will occur. Also, there is clear relationship of proximity between

patients and hospitals, at least there is a contractual relationship. and needless to

say that it is just and reasonable to impose such duty on hospitals. Thus it is clear

that the hospital has a duty of care. The hospital also has a duty of care to inform

the patient of the material risks of the surgery he is going to undertake. The
 surgeons in this case did provide the man with such explanation of the risks which

would include the risks of virus infection. But given that it was an emergency

surgery, it was not reasonable for the surgeons to provide such explanation.

 There is a breach of that duty, given that it is proven that the man contracted this

virus while he was staying in the hospital, and since the most probable cause for

this virus in this case, is the use of medical equipment that was not properly

sterilized. And the man here underwent surgery when he was first admitted to the

hospital which naturally involved the use of medical equipment. Although there

are another less likely causes ,such as failure from staff to properly wash their

hand, and failing to discard certain used medical instruments. It is notable to

point that the man has no history of drug abuse or underwent any medical

procedures like body radiation. Moreover, there is no evidence showing that the

hospital was using the sterilization method that is recommended by experts in the

time of the man’s stay, thus (Bolam v Friern Barnet Hospital Management

Committee ) will apply here as the hospital can not prove that they applied the

standard of care which experts recommend. And the burden of proof here is on

the defendants since the doctrine of Res ipsa loquitur should apply, given that

there is no actual evidence of the negligence here, yet the facts of this case shows

that the man could not have contracted the virus outside the hospital.

 In light of the facts of this case, the failure to properly sterilize medical equipment

is the more likely cause of the virus, and thus proving on balance of probability

(Hotson v East Berkshire Health Authority) that the hospital breached the duty.
 And with damage already estimated at $250,000, The hospital is liable for the

man’s infection.

(3) Assumption

 If we assumed that the court would find both the woman and the hospital to have

caused the infection , could the woman’s liability be limited to $100,000 of the

accident.?

Yes, according to (the wagon mound), if the damage is too remote and c then the

woman would only have to pay the $100,000. And in this situation it can be

argued that the damage was too remote, since the woman would not have

predicted that by failing to take due level of care while driving this would cause

the man to be infected with a serious virus due to the negligent sterilization of the

medical equipment at the hospital, it is not reasonably foreseeable.

And the answer could be no also, it could be argued that the woman could predict

that a man could have a surgery due to the injuries caused by the accident and

naturally the surgery would have risks. So damages would be reasonably

foreseeable. And if we used that second answer, damages could be calculated

according to (Rouse v Squires [1973] QB 889), where a driver was negligently

driving his lorry and caused an accident in which many vehicles were involved

including the claimant’s then another negligent driver collided with the stationary

cars killing the claimant, it was held that the lorry driver was liable for 25% for

the death of the claimant and the second negligent driver was responsible for the

rest. If we applied the same rationale here the woman will be liable for the
 accident injuries ($100,000) + 25% of the virus injuries (25% $250,000 =

$62,500) =$162,500.

Conclusion

The woman is liable for the accident injuries as she breached the duty to drive

safely on the highway during a heavy rainstorm, while she is not liable for the man’s virus

infection injury since it is an intervening action caused by third party. The hospital is liable for

the virus injury since it was their duty to sterilize the medical equipment which on balance of

probabilities they breached that duty.