Critical Analysis Of Negligence Question and Answer 2022

Running head: CRITICAL ANALYSIS OF NEGLIGENCE
CRITICAL ANALYSIS OF NEGLIGENCE
Name of the Student
Name of the University
Author Note

1CRITCAL ANALYSIS OF NEGLIGENCE
Answer 1
Negligence is considered as a civil wrong under the law of tort. The act done or avoided
by a person, which a man of ordinary prudence would not, causing distress to an individual or a
group may be referred to as negligence1. The law of negligence slowly developed over the years
and in the later years, an act or avoidance to act is considered as negligence, even when there is
no express or implied contract. The foundation for negligence was created in the case Donoghue
v Stevenson (1932). In the above mentioned case law, it was stated that a suit for negligence shall
be successful even if there is an absence of an implied or express contract.
In the above mentioned case, the first element, that is, the duty to care, was founded.
When a person files a suit, that person needs to establish this first element. This duty should be
towards the person or a group who may be affected by any of the actions or omission to act by
the defendant. In the case, Caparo Industries plc v Dickman (1990), three points were stated, on
the basis of which a duty of care shall be established. These three points are (1) the conduct of
the defendant, which causes the harm, should be reasonably foreseeable, (2) existence of a
proximity relationship, and (3) in order to impose liability, it should be just, fair and reasonable.
Second element of negligence is the violation of the duty to care. In any particular suit,
the court will examine the standard of the duty of care that a man of reasonable prudence should
take. The court will suggest the adjustments, if any, if the defendant fails to meet the required
standard. There are certain reasons for the adjustments. For instance, the professionals with a
reasonable mind should follow the proper professional standards. Guidelines of the industry and
1 Mathew, Rashmi G., Veronica Ferguson, and Melanie Hingorani. "Clinical negligence in ophthalmology: fifteen
years of national health service litigation authority data." Ophthalmology 120.4 (2013): 859-864.

2CRITCAL ANALYSIS OF NEGLIGENCE
the basic practice of the workplace can also be considered as reasonable conduct2. When the
plaintiff is a disabled or a fragile person, then it is logical that additional care is needed than the
usual. However, if reasonable actions were not taken by the defendant as it was beyond the
abilities of that person, then in such case the court might state that such person followed the basic
duty3.
The third element is the cause in fact. It is mandatory for the defendant to establish a
relation of cause and effect between the harm and the negligence. There should be a direct link
between the defendant’s action or inaction and the damage caused to the plaintiff. The plaintiff
needs to prove that the action of or evasion to act by the defendant has caused the harm4.
The fourth element is the cause of proximity. The proximity cause is different from the
factual cause. In this situation, the connection between the plaintiff’s injury and the defendant’s
action may be remote, but the action of or refusal of action by the defendant started a chain of
events that in some way or the other affected the plaintiff and caused harm to such person. The
court in this case shall consider the circumstances and the relevancy of such events in relation to
the action or inaction and the injury5. In certain cases, the defendants are exempted of or
protected from, their negligent acts when the connection of such action with the damage of the
plaintiff is too remote, improbable or implausible. Involvement of third parties may also exempt
the defendant where the responsibility of such party supersedes the responsibility of the
defendant6.
2 Dobson, Erica. "Negligence." Legaldate 27.1 (2015): 4.
3 Bailey, Regina. "Resident liability in medical malpractice." Annals of emergency medicine 61.1 (2013): 114-117.
4 Green, Sarah. Causation in negligence. Bloomsbury Publishing, 2015.
5 HEIDI, M. HURD. "The innocence of negligence." Contemporary Readings in Law and Social Justice 8.2 (2016):
48-95.
6 Sperino, Sandra F. "Discrimination Statutes, the Common Law, and Proximate Cause." U. Ill. L. Rev. (2013): 1.

3CRITCAL ANALYSIS OF NEGLIGENCE
The final element is the actual damage or harm caused to the plaintiff where the
defendant breaches the duty. The plaintiff must prove to the court that the actions of the
defendant or denial to act by the defendant has resulted in actual injury to the part who filed the
suit. In case of the injury caused, importance is given by the courts to actual physical injury like
death, accidents and damage of property7. Injuries, which only include economic loss such as
loss of wages and loss of profits, are given less importance. However, in many situations the
plaintiff may suffer physical and economic injury at the same time. In such cases, the court may
allow the plaintiff to retrieve damages even for the secondary economic loss8.
In the important case of CES v Superclinics (1995), it was mentioned that the doctors do
not require to give the equal care and attention to pregnant women as given to other patients.
This case reveals that such exemption provided to health professionals and doctors may promote
negligence by such professionals.
7 McQuoid-Mason, David Jan. "Public health officials and MECs should be held liable for harm caused to patients
through incompetence, indifference, maladministration or negligence regarding the availability of hospital
equipment." SAMJ: South African Medical Journal 106.7 (2016): 681-683.
8 Nolan, Donal. "Damage in the English law of negligence." Journal of European Tort Law 4.3 (2013): 259-281.

4CRITCAL ANALYSIS OF NEGLIGENCE
Answer 2
Professionalism and the professional life is also associated with the term negligence. Any
neglect in the duty of such professionals or any misconduct may result in an injury or harm of a
particular individual9. Negligence in professional work includes profession such as lawyers,
doctors, builders, bankers, engineers, trustees, surveyors, advertising agents and accountants.
These professionals have a duty towards their client to act rationally and reasonably. They
should use their skills properly and in the best possible way to provide their clients with the best
results. If such professionals fail to act in a reasonable manner, then the person, to whom the
harm was caused, can claim compensation. This compensation can be for any loss, physical or
financial. Claims can be made by the plaintiff against negligent professionals on certain grounds.
These grounds may include advice by professionals, which may be misleading, faulty monetary
advice, and treatment of the patients in a negligent manner by health professionals, accounting
miscalculations, and fallacy by engineers10.
A plaintiff, before claiming compensation, for negligence by the professionals, must
prove certain facts. These facts include that the professional had a duty of reasonable care
towards the plaintiff. The professional violated that duty and the plaintiff has experienced a loss
due to such violation. The court will decide cases about professional negligence based on the
circumstances of each case, how close is the connection between the injury of the plaintiff and
the negligent action of the professional11.
9 Patten, Ben, and Hugh Saunders. Professional negligence in construction. Routledge, 2018.
10 Finlay, Angus JF, Cameron L. Stewart, and Malcolm Parker. "Open disclosure: ethical, professional and legal
obligations, and the way forward for regulation." Medical Journal of Australia 198.8 (2013): 445-448.
11 Sohn, David H. "Negligence, genuine error, and litigation." International journal of general medicine 6 (2013):
49.

5CRITCAL ANALYSIS OF NEGLIGENCE
The compensation can be claimed by the plaintiff in different manners. He can claim
compensation either as cost incurred in a lawsuit, expenses incurred for the service of the
professional or any other expenses that has to be incurred because of the injury caused by the
negligence of that professional. For instance, a doctor or any other medical expert shall bear the
expenses for medicines and medical equipment along with the compensation for the damage
caused to the plaintiff.
There are various statutes governing the claims against professional negligence. Some of
them are Civil Liability Act, 2002 of New South Wales (NSW), Civil Liability Act, 2003 of
Queensland and Wrongs Act, 1958 of Victoria12. If a professional has acted in a reasonable
manner and did his job diligently and even then the plaintiff has suffered a distress or injury, then
under such circumstances the professional shall be exempted depending upon the discretion of
the court.
Based on the above explanation about professional negligence, I would like to say that an
act of negligence in the professional world is a terrible wrong. If such wrong is committed then
an individual may suffer irreparable damage or loss. I shall avoid such circumstances in my
professional life. I cannot afford to be negligent which might become the reason for an injury to
another. I believe in strict professionalism and maintaining a basic morality at the workplace. I
shall do my job skillfully and properly avoiding any sort of negligence, which might cause harm
to others.
A landmark case in relation to professional negligence is the Boyd v Ackley case in the
year 1962. In this case, a wife and husband owned the majority of the shares in the business.
They claimed compensation against the accountants as being negligent of their professionalism.
12 Barravecchio, Joseph A. "The tort of negligence." Legaldate25.4 (2013): 4.

6CRITCAL ANALYSIS OF NEGLIGENCE
These accountants were close friends to the couple. These accountants had previously handled
matters for the couple for another business and when this couple decided to acquire a new
business then they hired the same accountants to do the job. The wife and husband filed a suit
against the accountants claiming that the accountants were negligent in doing their job and did
not do their job in a proper manner. The couple claimed that the accountants had served a wrong
statement of accounts for which the couple had to make an overpayment than the usual. The
judge in the above case stated that the relationship between the plaintiff couple and the defendant
accountants was a contractual one. Though the defendants tried to argue that the contractual
relationship of the defendants was with the organization and not with the plaintiffs, the judge did
not accept such argument as it was groundless and unsubstantiated. The judge was of the opinion
that the accountants had a duty of rational care towards the plaintiffs just as a doctor or a lawyer
has a duty towards their clients. Hence, the defendants would be indebted to pay compensation to
the plaintiffs in case of violation of such a duty. In this case the plaintiff couple were able to
retrieve the damages from the defendant accountants. The plaintiffs also recovered the expenses
of the proceedings of the court from the accountants.

7CRITCAL ANALYSIS OF NEGLIGENCE
References
Bailey, Regina. "Resident liability in medical malpractice." Annals of emergency medicine 61.1
(2013): 114-117.
Barravecchio, Joseph A. "The tort of negligence." Legaldate25.4 (2013): 4.
Boyd v Ackley (1962)
Caparo Industries plc v Dickman (1990)
CES v Superclinics (1995)
Dobson, Erica. "Negligence." Legaldate 27.1 (2015): 4.
Donoghue v Stevenson (1932)
Finlay, Angus JF, Cameron L. Stewart, and Malcolm Parker. "Open disclosure: ethical,
professional and legal obligations, and the way forward for regulation." Medical Journal of
Australia 198.8 (2013): 445-448.
Green, Sarah. Causation in negligence. Bloomsbury Publishing, 2015.
HEIDI, M. HURD. "The innocence of negligence." Contemporary Readings in Law and Social
Justice 8.2 (2016): 48-95.
Mathew, Rashmi G., Veronica Ferguson, and Melanie Hingorani. "Clinical negligence in
ophthalmology: fifteen years of national health service litigation authority
data." Ophthalmology 120.4 (2013): 859-864.
McQuoid-Mason, David Jan. "Public health officials and MECs should be held liable for harm
caused to patients through incompetence, indifference, maladministration or negligence

8CRITCAL ANALYSIS OF NEGLIGENCE
regarding the availability of hospital equipment." SAMJ: South African Medical Journal 106.7
(2016): 681-683.
Nolan, Donal. "Damage in the English law of negligence." Journal of European Tort Law 4.3
(2013): 259-281.
Patten, Ben, and Hugh Saunders. Professional negligence in construction. Routledge, 2018.
Sohn, David H. "Negligence, genuine error, and litigation." International journal of general
medicine 6 (2013): 49.
Sperino, Sandra F. "Discrimination Statutes, the Common Law, and Proximate Cause." U. Ill. L.
Rev. (2013): 1.