The Law on Recovery for Psychiatric Injury Caused by Negligence - Essay Example

?Introduction Negligence can be defined as failure to recognize or do something that a normal person would, or do something that a rational person would not do.1 Negligence is supposed to protect an individual against a number of things, economic loss personal and property loss. With enough prove of defendant’s negligence the claimant can easily win the case but can also lose if the evidence against the same is not credible enough. Claimants suffering from psychiatric injury caused by negligence have hard it rough while establishing trying to establish liabilities to the defendants. This is because there must be actual psychiatric injury that is easy to prove which makes sorrow, grief and fear not sufficient to win a case. For a defendant to be established as negligent, the claimant must be able to prove three things.2 First aspect, the claimant must prove that the defendant owed the claimant a duty of care which is a responsibility to avoid sloppy actions that could cause damage to one or more persons. The duty of care is further explained as the responsibility of ensuring that you do not do any harm or fail to do something that may likely injure your neighbor. The law however does not give details on who the neighbor is supposed to be. This is one of the reasons that the law should be amended since it does not give a clear definition of who our neighbor is, if it is a person one closely relates to, people defined by property proximity or people you relate with everyday. The next factor considered in duty of care, the claimant must provide evidence that the defendant failed to grant the appropriate standard of care that a sensible person would have provided in similar circumstances.3 The standard of care is explained as a way of measuring how well and much care a reasonable person owes another. There are rules that come with this duty, whether the defendant is a learner, child or a professional because standards differ from one person to another. Some people’s standards of care are higher than others depending on your call of duty or even your line of work. Drivers and doctors, for example, have a higher standard of care toward other people than the reasonable human being because there are responsible to other people’s lives than themselves. It does not matter whether they are learners of profession since there standards of duty are set much higher than other professions. This law is determined by so many factors which makes it ambiguous to prove ones guilt or innocence. Example for people with the skill to do something that any reasonable person would not be able to do is charged with negligence for lack of standard to care of duty. There is also the situation where a child commits a deed with intention of harming others are judged as adults yet there are other rules applied to the same misconduct if the person is of a certain age group. There should be many factors when deciding reasonable standards of duty and care for reasonable people. Example, if there could have been prevention from both parties to avoid more harm and what cautions could be taken by reasonable persons. All the risks involved and the degree of the same by the claimant to reasonable person. Extent of the harm will also be well thought-out in court. The damage to the claimant will be taken into account as there may be two similar damages but of different magnitude which will be unfair to rule equally yet the extent of damage to one was more than the other. It is important to ensure that all the three consideration are taken into account so that all the claimants affected by psychiatric disorder caused by negligence are given a fair trial. The claimant must also verify that the events of the defendant were the reason of the plaintiff’s injuries or breakdown. Influencing the cause, known as getting facts, is time and again done by applying but for experiment. Damage would not have happened but for the defendant’s measures. If a driver takes a group of people on a road trip and fails to install seat belts in the car and they get into an a accident where one person die due to fatal injuries, a court would likely say that the person would not have died or those injured would be well but for the drivers failure to provide seat belts. Therefore, this negligence of the driver was the reason of the death and injuries of the people the driver was responsible for. However this law should be reformed, as much as the driver or any other person in that situation would be judged by the court the people are also liable for not ensuring safety precautions before taking the trip. The degree of likelihood of damage must be content as there are many likely causes of injuries, thus the plaintiff must prove the defendants negligence caused the harm or it was the encouraging aspect. There is also the decision that a person, can only be responsible to harm that have been reasonably anticipated otherwise the defendant cannot be held accountable for the plaintiff injuries. Example, doctors can be held accountable for damage they cause, but the court recognizes that doctor has standard of care but they are not God may be in difficult situations when trying to save lives. They may have the skills, experience and wisdom to predict how something they do could cause injury like saving a criminal who later commits a crime but would have been prevented if the doctors had let the criminal die. As a result the courts place a different standard of care on the doctors. If a doctor does something that injures someone, the courts will consider the doctors oath, and what a doctor of a similar situation would have done under similar position. Guardians are not automatically responsible for indemnities caused by their children, but they can be held accountable if they fail to guide their children or appropriately administer their behavior.4 Children who are hurt as a result of a parent’s negligence has the right sue their parents where they are given liability insurance that is supposed would cover several or all of the medical operating expense that would have to be compensated due to the child’s injuries. Another point that needs explanation concerns situations where damage of the claimant concerns their emotions or mental nature.5 In psychiatric damage, the plaintiff will have to illustrate on the basis of medical verification, that they have identifiable psychiatric condition. Claims in this element are likely to transpire where a person suffers a response as a result of witnessing a calamity in which someone dear or a loved one is injured. On the other hand, where the injury to the plaintiff is nervous breakdown other points may need consideration. This was brought forth to avoid situations where there are too many claimants arising from one episode of negligence. Psychiatric sickness or damage caused to person by events due to negligence of another person must be recognized as a psychiatric to render them as disorders. The types of psychiatric illnesses that are likely to form the basis of claims include depressive disorders, post-traumatic stress disorder, anxiety disorders and adjustment disorders. Under the law of negligence there are a number of unique types of liability while some groups are at average standard of care there those that are held higher.6 For example, clients can sue a firm of their services if the services provided by the firm do not meet a required standard. The area of law that handles negligence on the part of firm is called service liability. The community who possess or dwell in property have obligation to maintain their belongings so that no one who visits the property will be hurt. This legal accountability is called occupiers legal responsibility where property owners must ensure good care to guard children who may be attracted onto their land by an item such as a well put up play grounds. Stuff that might persuade a child to go to others people property without the owner’s consent is referred as allurements. If one is sued for negligence, in their argument they can provide proof to show that they did not owe an obligation of care to the claimant, that they have met the standard of care, or that their actions did not cause the harm to anybody. In addition, they may be able to prove that the claimant assisted to the cause of the injury. This defense is identified as contributory negligence where both the plaintiff and the defendant can be held liable for their actions and the court may find both of them guilty. The court may also decide to let both of them go if the claimant agrees on the terms set in this situation the allegations are dismissed. Hosts are people who give services to their visitors in their homes or other places and the guest do not have to pay for them for purpose of entertainment. On the other hand we have the commercial hosts are people who offer different kinds of services to the public at a fee for purpose to making profits and expanding their business. Commercial hosts have a constitutional duty of care to their clients and to anybody who may be hurt by their patron’s negligent services. From time to time the courts will find a person accountable for indemnity even though that person did not cause the claimant’s injuries. This sort of charge is recognized as vicarious liability and it usually takes place in the office where employers can be held answerable for the actions of their employees. Strict liability is a particular kind of liability applicable in circumstances where an action is so precarious that the defendant is evidently responsible in the case of injury. In common law, strict liability applies in cases involving fire, floods, leaking toxic fumes or harmful waste. Today strict liability can be built into specific legislation such as environmental protection acts which specifies details of environment conservation. A defendant could also use the defense of deliberate assumption of risk, which means that the claimant deliberately and freely assumed the probable risk usually connected with a particular activity. Example, investing money in pyramid schemes where there are risks of loosing or money or gaining more money. In this situation the claimant cannot sue the defendant as they were aware of the risks before signing the contract. There other defenses include unexpected accident where the defendant had no control over it and there is nothing they could do even if the situation were reversed. There is no amount of care that would make the situation to be better or otherwise. There is also the Act of God; almost similar to inevitable accident only in this situation is controlled by more powerful causes. The two are both astonishing and unforeseen, such as a violent hurricane or tornadoes. Though there may be measures to prevent extensive damage there can never be perfect ways to prevent natural causes from happening. In some circumstances a defendant may dispute that there is a legitimate justification for an accident even though the defendant took every safety measures. Psychiatric injury as a result of negligence has been a major concern over the years and how people deal with it will always matter. This is because people take trauma differently the same way they heal differently. For this reason the tort on negligence is presented in different ways so as to accommodate variety of cases without being unfair to one group. One may be the defendant trying to prove innocence and how well you argue your points to prove that you meant no harm to the plaintiff may change the way a case was ruled before. There is also the degree of effect to the damage may result to defendant being sentenced many years than required . References Barbara Ann Hocking, A. S. Liability for Negligent Words, 2000. Australia: Federation Press. McMahon, B. and Binchy, W. T. Irish Law of Torts. 2000. Quill, Eoin. Torts in Ireland. Gill &Macmillan, 2004. Read More