logo

Analysis of Tort and Negligence

   

Added on  2020-04-13

12 Pages2632 Words54 Views
Running head: TORT AND NEGLIGENCETORT AND NEGLIGENCEName of the student:Name of the university:Author Note

1TORT AND NEGLIGENCETable of ContentsIssue:................................................................................................................................................2Analysis with Relevant Legislation.................................................................................................2Duty of Care................................................................................................................................2Breach of Duty.............................................................................................................................3Causation.....................................................................................................................................4Remoteness of Damage...............................................................................................................5Proximity.....................................................................................................................................6Foreseeability...............................................................................................................................6Defense and possible outcomes:..................................................................................................7Conclusion.......................................................................................................................................8Bibliography..................................................................................................................................10

2TORT AND NEGLIGENCEIssue:Was the Hospital authority responsible for the mental and physical disability of the baby born? Was the party entitled to claim damages from the hospital authorities? Was the party also partially responsible for the mental and physical disabilities of the baby born?Analysis with Relevant Legislation The remarkable case Donoghue v Stevenson 1talks about the principles of negligence. It was heldin this case that the claimant must prove before the court:The defendant had Duty of care to the to the claimant There was a breach of such dutyThe claimant suffered a loss due the breach of duty by the defendantThe damage was not too remoteThere was proximity between the partiesThe damage was foreseeable Duty of CareAccording to the aforementioned case, it is important to note that the claimant must provethat the defendant owed a duty to him. It is essential for the alleged party to prove in the court oflaw, that the he had taken due care to prevent the occurrence of any incident which hampered theinterests of the other party2. It is important for the alleged party to prove that it was not1 [1932] AC 5622Spamann, Holger. "Monetary Liability for Breach of the Duty of Care?." Journal of Legal Analysis 8.2 (2016): 337-373.

3TORT AND NEGLIGENCEreasonably possible for him to foresee the injury caused or loss suffered by the victim to preventthe same3. In this case it can be noted that the doctor had a duty to the claimant who was hispatient. It was the duty of the doctor to properly diagnose the disease of the patient while she wasadmitted in the hospital. It is also important to mention that it was the duty of the consultant topay attention to the advice of the GP of the claimant regarding her medical records prior to herpregnancy.Breach of DutyIt can be stated that for breach of duty in negligence to be established, the claimant mustprove that the defendant had had failed to take reasonable care as prescribed by the law4. Theclaimant has to prove that the defendant failed to perform the duties vested in him or required tobe performed by him due to which the interest of the client was hampered5. In the remarkablecase, Vaughan v Menlove 6, it was held by the court that for deciding breach of duties innegligence an objective test is required. The duty of the person should be judged by the standardof a reasonable man. It was also stated that if the party is a professional his duty would be judgedby the standard of any reasonable man within that profession7. However in the case, Condon vBasi8it was held that the objective test can vary depending on several factors. The hospitalauthorities neglected her medical records of the past and also failed to advise her to opt forCaesarean form of operation for giving birth to her baby. It can be reasonably deduced that3Goldberg, John CP, Anthony J. Sebok, and Benjamin C. Zipursky.Tort Law: Responsibilities and Redress.Wolters Kluwer law & business, 2016.4 Duggan, Magdalena. "Tortious Liability for a Negligently Performed Surgery in Utero under English and Irish Law."Hibernian LJ15 (2016): 27.5 Wright, Jane.Tort law and human rights. Bloomsbury Publishing, 2017.6 (1837) 3 Bing. N.C. 4677 Robbennolt, Jennifer K., and Valerie P. Hans. "The psychology of tort law." Advances in Psychology and Law. Springer International Publishing, 2016. 249-274.8 [1985] 1 WLR 866

End of preview

Want to access all the pages? Upload your documents or become a member.

Related Documents
Commercial Law: Rights to Sue in Tort of Negligence and Australian Consumer Law
|11
|2902
|193

Negligence and Product Liability under Australian Consumer Law
|12
|2991
|438

Tort of Negligence and Australian Consumer Law: A Case Study
|10
|2806
|198

Tort Law: Duty of Care and Negligence
|9
|1989
|98

Negligence and Pure Economic Loss in Construction: A Case Study Analysis
|10
|2398
|112

Business Law
|11
|2527
|238