Sample Essay On Negligence
In Rebecca & ‘Zorba’s’ Restaurant case, the main issue is whether negligence exists of the defendant? There are three prerequisites must be present before the tort of negligence can arise: a duty of care must be owed by one person to another; there must be a breach of that duty of care; and damage must have been suffered as a result of the breach of duty. (FoBL, 2005, p70) In addition, another element must be satisfied to prove negligence is the causation. This essay will analysis Rebecca v. ‘Zorba’s’ with these four issues.
IRAC Process No. 1
Does ‘Zorba’s’ Restaurant own a duty of care to Rebecca Disasteropoulos?
There are two common factors that must exist before the law says a duty of care exists, which are…show more content…
Multi-Sport Holdings Pty Ltd could prove this element.
The last factor is the social utility of the defendant’s conduct, which means the benefit of conduct must be assessed against the gravity of the risk of injury; the case of Watt v. Herfordshire case set an example to this factor. In this case, there is no relevance to this factor.
As a result, the supplier of ‘Zorba’s’ Restaurant did not conduct the sufficient action to remove the potential risk to the customers, and the restaurant did not put any warning like notice board to admonish their customer, it is most likely that the restaurant had been breached of the duty of care.
IRAC Process No. 3
Does the defendant’s breach of duty cause the loss sustained by the plaintiff?
The third element that must be satisfied to prove negligence is the causation of the damage.
To determine the issue of causation, the law has created a test called ‘but for’ by Lord Denning in the case of Cork v. Kirby Maclean Ltd, ‘If you can say that the damage would not have happened but for a particular fault, then that fault is in fact a cause of the damage; but if you can say that the damage would have happened just the same, fault or no fault, then the fault is no a cause of the damage.’ (FoBL, 2005, p78)
In this case, the injury of Rebecca was caused by the lack of care of the restaurant. The waiter did not remove all the liquid off
Running Head: Elements of Tort of Negligence
Elements of Tort of Negligence
Negligence simply refers to failure to use reasonable care. In common law negligence is explained as the action taken that contradicts with what an ordinary reasonable member from a given community would act in that same community. It's doping something that a prudent person wouldn't do. It is the legal cause of damage if it directly, naturally and continuously contributes in causing that damage. It is thus taken that were it not for negligence, then the damage would not have occurred. On the other hand, a tort is any wrongful act except breach of trust or contract resulting in injury to another individual's property and reputation for which the injured individual qualifies to be compensated. There are three elements in the tort of negligence; duty of care, breach of the duty and damages. Duty of care means that any single person must always take reasonable care so that he can avoid omissions and acts that he can foresee reasonably as likely to result to injury to his neighbor. In negligence law, a neighbor is that person who is directly and closely affected by one's act such that one is supposed to have him/her in contemplation to be affected when directing the mind to the omissions and acts in question. Standard of care must be proved by deciding whether the defendant in question owed the plaintiff a standard of care, the level of standard of care that the defendant owed the plaintiff and lastly, by determining whether another reasonable person in the same field like the defendant would do the same. Breaching of the standard of care must be proved by checking how likely the injury was and how it can be regarded, injury gravity (whether the plaintiff at all engaged in a dangerous activity) and efforts that may be required in order to remove injury risk (whether the defendant failed to act reasonably). Damages caused by the defendant must have resulted through the breach of duty of care and that this was not remote.
In this case in question, B (patient) was examined by A (doctor) since he had a chest problem. A had asked B all the relevant questions just like any other doctor in this field would have done. But after being discharged B died due to a heart attack. It is the prescription that B's wife believes caused the death of her husband. Applying the tort of negligence, B who is the claimant in this case must satisfy three elements as required by the clinical negligence law. A owed B a duty of care since he is a medical professional. In order for the court to rule in the favor of B (claimant), she must show that A breached the duty of care owed to her husband by treating him negligently. This should include a sound proof that A did not establish a reasonable standard of skill and care. This would call for detailed medical evidence in our case. In the end, a loss/damage (death) caused must be shown that its causative agent was due to A's breach of duty.
Taking as an example, Donoghue v Stevenson is a case where the tort of negligence developed. It was in 1929 when Donoghue (plaintiff) bought a ginger beer manufactured by Stevenson (defendant). This ginger beer was in an opaque bottle that could not allow one to see its contents clearly. Donoghue consumed some of the beer but as she poured the remaining beer into her glass, decomposed remains of a snail were seen in the glass. She had gastro-enteritis and nervous shock which she claimed were due to the snail remains in the beer. Just like in our case of A and B, the defendant (Stevenson) owes a duty of care to the plaintiff (Donoghue). The main issue in deciding this case was on establishing whether Stevenson owed Donoghue a duty of care. Lord Atkin said decisively that Donoghue had to show that the damages caused to her were due to the breach of duty owed to her by Stevenson in taking reasonable care to avoid it. The court by using previous cases like Heaven vs. Pender asserted that negligence comes due to a moral wrongdoing where the offender is obliged to pay. Additionally, a person must take reasonable care to escape all acts and omissions that one can reasonably foresee that they can injure ones neighbor. They thus ruled that this may be a grave law defect where consumers cannot sue manufacturers for negligently mixing a drink with poison. By stating that the manufacturer must have the foreseeability of the effects on actions taken on the neighbors (consumers), Lord Atkin showed that there was existence of a duty of care. It is in this judgment of Donoghue v Stevenson that the "neighbor principle" was formulated.
In case of A and B, it shows that there is medication negligence according to UK law. The defendant after examining the plaintiff and asking all the relevant questions, he did not fully exercise his duty of care. The medication that killed B can only be taken as lack of exercising the required standard of care for a professional of A's caliber. A doctor in the same position would have been expected to give medications to B that coincided with the problem that he had. According to UK law, medical negligence occurs where an individual who is trained in the medical profession fails to fulfill his duties of care to his patients in a standard manner.
Tort of negligence is also applied in Caparo v Dickman (1990) HL. In this case, the auditors of the company had prepared the accounts that however could not show that the company had been making losses. On seeing the accounts of the company, Caparo thought that since this company was not making any losses as per the auditors' accounts, it was advisable for him to buy shares in the same company. This company was however making losses. Caparo (plaintiff) thus alleged that it was through negligence that he was owed a duty of care. A previous case, Sutherland Shire Council v Heyman (1995) was referred to and it was declared that the law must come up with novel categories in negligence in accordance with the already established categories. It was rejected for extension of duty of care to indefinable people or class of persons who are owed. In this case, it was ruled that there was no duty of care owed. The auditors won this case since there was no case that could hold them to have a duty of care to the plaintiff. To the auditors, establishing whether there was a duty of care required the court to determine whether the loss to the plaintiff was foreseeable. This was not possible for the auditors. Again, there was no established proximity between the two parties to the case. Thus it was not just, fair or even reasonable for imposition of duty of care.
B's wife must that have to proof just like it was proved in above case by the court whether there is duty of care owed to her husband by A. A doctor has to take all the actions towards his patients to ensure that whatever he does will not cause any injury to them. Comprehensive medical evidence is required here to show that B died because of medication negligence of A. This may be hard for her to proof since the heart attack may have been caused by other health problems. Three pre-conditions formulated in Caparo v Dickman for imposition of duty of care (sufficient proximity between parties, it should be just, fair, and reasonable in imposing the duty of care in the circumstances and foreseeabilty of harm) must come into play in A vs. B so that B can claim compensation. It's evident that sufficient proximity between A and B exists. The prescription given to B may however not make A to foresee any harm because all the questions he asked and the examinations he carried out on B had convinced him that he was supposed to give B that prescription. However, despite this, a doctor is supposed to act just like all others would do in the same profession. It is the duty of A to exercise standard of care after examining B and asking all the questions to make sure that diagnoses is not performed to the detriment of the patient (B).
In Perrett v Collins (1998) CA, a plane built by Collins crashed and Perrett, a passenger was injured. This was a light aircraft that had been severally inspected at various stages. After its completion, Mr. Usherwood who was one of the inspectors approved it. Authorities had given certification that the plane was airworthy. This shows that both the inspector and the certifying authority were liable due to negligence as they had certified this experimental plane fit to be flown. The duty of care was thus to be extended to any passenger in it. The public is supposed to be protected from any injury through mindful operation of the plane system. A passenger in such a plane has to be compensated as this is negligent operation. By doing this, they have imposed a duty of care that is owed to the public by Collins.
Duty of care was also established in Watson v BBBC (1999) CA (Goodey, 2007). The defendant, British Boxing Board of Control could not provide sufficient medication. Watson, a boxer suffered brain damage as he was injured on the ring. Evidence provided showed that those brain injuries would have been prevented if there was better medication at ringside. Here, the sports body owed all participants a duty of care. Injury in boxing competitions is always foreseeable. Proximity was also created by the licensing system. By looking at all the circumstances it was fair, reasonable and just in imposing duty of care. Duty of care alleged was not avoiding to cause personal injury but to have reasonable care that ensures that injuries caused are properly treated. These two cases seem to concur with the case of A and B. By being a doctor who is professionally trained; it means that A is a registered doctor who is expected to perform his duties just like other doctors in the profession. He owes a duty of care to all his patients. By being a registered doctor, it establishes proximity between A and B. Drugs administered to a patient are not guaranteed that they will always produce the expected results. Injury is thus foreseeable. Looking at all the circumstances in A vs. B, it was fair, just and reasonable to impose a duty of care. These two cases helps us to use the three pre-conditions of establishing that a duty of care exists as alleged by B's wife.
A doctor must exercise a standard duty of care to his patients. B's wife is claiming that her husband died due to the faulty medication that was given. After asking questions and examining B, A gave medical treatment that B's wife thinks was the cause of her husband's death. A in his profession is supposed to carry out his activities just like others would in the same field. His actions were supposed to be reasonable. It's all irrelevant for the defendant to claim that the medical treatment he gave B was the right one. His perception or what he thinks was okay is irrelevant since expectations are; he must act reasonably. It doesn't matter here if A considers his conduct fine; the standard is what would be expected of a reasonable person in medical profession. Standard of care in negligence doesn't result to absolute duty in prevention of injury. Duty instead amounts to what the reasonable person is supposed to do to prevent injury from occurring. Reasonable test would be used here so that it can be decided what would be the reasonable behavior of A. In this case, the court would consider several factors. Special characteristics of A (defendant), special characteristics of B (claimant), how far it was practical to prevent this risk and magnitude of this risk. For A, he is a doctor and thus he has special skills (profession). Law expects a doctor to exhibit competency standards just like another doctor would do. This amounts to reasonable behavior. This same standard would apply even if the defendant was inexperienced or experienced.
In Nettleship v. Weston (1971), it was ruled that a learner driver was judged against standards of competent driver. Weston's inexperience could not be used as an excuse that her driving was below expected standard from a competent driver. Weston was thus considered negligent as her negligent act resulted in damage. In the case of A vs. B, A would be held negligent as he has acted below the expected competence level. When considering the claimant (B), the court would have expected A (reasonable person) to look into incapacity or special characteristics which would have increased the injury. Magnitude of the risk would also be considered. This incorporates chance of the damage occurring and then the seriousness of the resultant damage. This may be illustrated in Vaughan vs. Menlove case where Vaughan built a haystack while Menlove who was a neighbor occupied a cottage that was near this haystack. Vaughan was given advice that his haystack could catch fire as it was not properly ventilated. It later caught fire. It was ruled that a reasonable person could have taken the necessary precautions. The court in the case of A v B will thus consider how far it was practical to prevent the risk.
In medical negligence, it is stated that a doctor cannot be held negligent in cases where he provides proof that what his did is an act that has been agreed by the relevant body in the medical profession. A doctor can defend compensation to the claimant successfully if he shows that the reputable body of doctors would act in the same way as he did. In A v B, A had asked B all the relevant questions which another doctor in the same position would have done. Additionally, A had examined B properly as he was complaining of chest pains. It clearly shows that medical treatment or prescription was given to B after doing all what any other reputable doctor would have done. It's clear that A as a medical expert had an opinion that was reasonable. The medication that he gave B was after weighing up the benefits and the risks involved. It's through this that he made his logical conclusion to give that particular treatment. This is just like in the case of Bolam v Friern Hospital Management Committee 1957. In this case, a patient was treated for psychiatric problems yet he had an electric shock. The relaxant drugs administered led to broken bones. In the profession, there were doctors who felt that these drugs are not supposed to be given while others felt that they should. Since some doctors believed that these drugs administration was okay, the court ruled in favor of the doctor as this was a practice that was in accordance with other professionals.
Another example is Bolitho vs. Hackney Health Authority 1997 where a two year old was admitted to hospital with breathing difficulties but was not seen by the doctor. He alter died of a heart attack. His mother claimed that he should have been seen by a doctor and incubated but failure to this resulted to his death. An expert witness from the doctor was produced which showed that incubation would not have been the correct treatment for Bolitho while the claimant (Bolitho's mother) also came with a witness who said that incubation would have been the best treatment. Here the court ruled in favor of the doctor by stating that the opinion of the medical experts was reasonable and they had weighed up the risks and benefits. Their conclusion was thus logical. It was thus declared that the doctor was negligent. The same case would apply in A vs. B. A has the capacity to produce evidence that all the examinations that he did and the questions asked were the relevant things any medical expert would have used. A thus weighed the risks, benefits and had a logical conclusion when he gave that particular medication to B. A was not liable for breach or it's totally possible to declare that there was breach of duty.
Death occurred in this case. B's wife must however prove that death was caused by breach of duty. The omission/negligence of A must be shown to be the cause the death of B. The UK law does not make defendants liable and infinitum. Instead, tests are applied to determine what injury was caused by the defendant. The major test that would be applied here is 'but for' test. It simply means that the court will ask itself whether the claimant would not have suffered the injury 'but for' the omission/negligence by the defendant. There is no exact connection between the death of B since his death through a heart attack could have been due to other health problems. B's wife must in addition prove that the death caused was not remote from A's breach. A would only be liable for those injuries he would have caused B and he could have reasonably foreseen them at breach time.
The law of negligence requires that for any claimant to succeed, the court must be satisfied that the defendant in question owed him a duty of care, that there was breach of duty by the defendant and finally the claimant's damages were as a result of the breach. Thus in our case, its well established that A as a doctor owed B a duty of care, but breach of the doctors duty could not be established though death (damage/injury) occurred. Since all the elements in tort law are not served, then B's wife does not have a sufficient legal standing to take this case to court.
Goodey, J. (2007). LEGAL FRAMEWORKS OF HEALTH AND SAFETY. Retrieved on 30th January 2010 from http://www.heacademy.ac.uk/assets/hlst/documents/events/annual_conference/oakley_doc.pdf
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