After months of disagreement Jack moved out of the family home in July and into a rented accommodation. Jack who was completing a nightshift was trapped in the premises.
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. 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 claimantshe 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.
Taking as an example, Donoghue v Stevenson is a case where the tort of negligence developed. It was in 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 consumersLord 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 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.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. Medical negligence is a three-part test whereby a duty of professional care is owed to a patient and as a consequence of a breach of that duty, the patient suffers harm.
All parts of the test must be satisfied. Negligence is defined as the failure to use reasonable care to avoid a foreseeable harm to a person, place or thing. An individual will be liable if his or her unreasonable act or failure to act causes an injury, even if the harm is unintentional/5(8).
The negligence tort also helps the court to offer prove on breach and existence of duty of care when handling such cases. Consideration of policy also plays a crucial role in the decisions.
This means normative thinking where the court employs logic to the rights of individuals and more specifically on any new development. Issue duty of care The tort of negligence to be constituted depend on whether the defendant violate the principle of ‘Duty 0f Care’.
Because of the case of Donoghue v Stevenson , ‘Duty 0f Care’ has been established in common law: 1. 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.