Tort of negligence essay

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Contents:
  1. Negligence
  2. Mchugh, Michael "Introduction" [] SydLawRw 19; () 27(3) Sydney Law Review
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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.


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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.


  • Tort Law - Negligence.
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  • 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 , 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.

    Negligence

    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.

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    Magnitude of the risk would also be considered. This incorporates chance of the damage occurring and then the seriousness of the resultant damage.

    Mchugh, Michael "Introduction" [] SydLawRw 19; () 27(3) Sydney Law Review

    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. 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 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.

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    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.

    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 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. 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. 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. Essay UK, Elements of tort of negligence. After discovering our site, you will no longer need to bother your friends with such requests.

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