Question

Apply the legal principles to the facts given below and select the most appropriate answer.
Legal Principles:

1. The Tort of Negligence is a legal wrong that is suffered by someone at the hands of another who fails to take proper care to avoid what a reasonable person would regard as a foreseeable risk.
2. The test of liability requires that the harm must be a reasonably foreseeable result of the defendant's conduct, a relationship of proximity must exist and it must be fair, just and reasonable to impose liability.
3. The claimant must prove that harm would not have occurred 'but for' the negligence of the defendant. The claimant must prove, on the balance of probabilities, that the defendant's breach of duty caused the harm.

Factual Situation: A 13-year-old boy fell from a tree. He went to a hospital where his hip was examined, but an incorrect diagnosis was made. After 5 days it was found that he was suffering from avascular necrosis. This was more advanced and serious than if it had been spotted straight away. Despite receiving treatment, it was determined that he had suffered from a muscular condition (avascular necrosis) which left the boy with a permanent disability and further left a strong probability that he would develop severe osteoarthritis later in life. The expert medical testimony indicated that had his fractured hip been identified on his initial hospital visit, there was a 25% chance of his condition having been successfully treated. He is claiming compensation for the negligence of the hospital. Whether the hospital's negligence on his initial visit had caused his injury?

Options

• No, because there are very less chances that correct diagnosis and treatment would have prevented the disability from occurring.

• Where there are a number of possible causes, the claimant must still prove the defendant's breach of duty caused the harm or was a material contribution.

• Yes, because there are some chances that correct diagnosis and treatment would have prevented the disability from occurring.

• Both (a) and (b)

Answer 1

Both (a) and (b)

Explanation:

Elements of negligence claims   
1. duty: the defendant has a duty to others,  including the plaintiff, to exercise reasonable  care,   
2. breach: the defendant breaches that duty  through an act or culpable omission,   
3. damages: as a result of that act or omission, the  plaintiff suffers an injury, and   
4. causation: the injury to the plaintiff is a  reasonably foreseeable consequence of the defendant's act or omission.   
In the light of above statements, it can be reasonably concluded that in no way the boy can prove that correct diagnose of the problem could have prevented the disability totally from occurring and hence "Yes, because there are some chances that correct diagnosis and treatment would have prevented the disability from occurring." can be eliminated without any doubt thus both "No, because there are very less chances that correct diagnosis and treatment would have prevented the disability from occurring." and "Where there are a number of possible causes, the claimant must still prove the defendant's breach of duty caused the harm or was a material contribution." are true.