Breach of Duty of Care - Essay Example

? BREACH OF DUTY OF CARE and Introduction A tort is a legal wrong done to someone and for which the law tries to provide a remedy. This is a civil action by one individual against the other and for which it is tried in court. The person who sustains injury is the plaintiff. The other party who has caused harm to the claimant is the defendant or the tortfeasor (HARLOW, 2005). The law of tort can be distinguished from other forms of laws. This is where it is derived from a combination of legislative enactments and a combination of common law principles. These principles arise from case laws. It can also be distinguished by the fact that breach depends on the actions of an individual and not on a previous agreement between parties as seen in contract law (HODGSON, et al, 2007). There are some examples of tort law which include; negligence, intentional torts, and nuisance. Negligence is the most common type of tort where the behaviour of an individual poses an unreasonable risk to people or property. The tort of negligence is established when it can be proven that there is an existence of duty of care between the two parties who are the defendant and the plaintiff. Secondly, when proven that the loss of harm was reasonably foreseeable. Also if it is established if there is a breach of duty on the part of the defendant. This is where it is proven that his behaviour falls below the threshold set for a reasonable person. Finally, negligence is proven if due to the defendant’s breach, there was loss or injury to the part of the plaintiff. Nuisance is a tort which implies that people should not interfere with other people right to quiet through the noise and pollution. If they do so, they are liable under the nuisance tort law. Finally, intentional tort covers acts that are reasonably foreseeable to cause harm and cause harm. These include; battery, assault, fraud, and battery. In the law of tort, the remedies given in such cases include compensation in the form of damages or money. The court may also decide to grant an injunction so as to prevent any harm in the future. On the other hand, the defendant can use the following defences: The defendant can use the defence of contributory negligence. This is where the defendant needs to prove that the plaintiff was responsible for injury to some degree. If this is proven, the claimant will not recover anything. Also, the claimant recovers nothing if it can be proven that he voluntarily submitted himself to the injury, and he had knowledge of the risk. Finally, if it can also be proven that the injury or harm was as a result of the actions of a third party (LEVINSON, 2002). Statement analysis Looking at the below statements, some aspects clearly come up. “The standards of the profession, for example, are presumed by law to be reasonable standards. Such evidence is not by itself conclusive. It is not enough to act in accordance with a general practice if it ought to be apparent to a reasonable man that it is a negligent practice.’’ C.D. Baker (1991) These aspects include: the standards of profession where professionals are held according to the standards that are reasonable for a person within that profession. A person is not found guilty as long as they act according to what is expected in their field of work. This is seen in the case of Bolam Vs Friern Hospital Management Committee in 1957. In this case, Mr Bolam was a voluntary patient in a mental institution run by the Friern Hospital Management Committee. In the agreement, Mr Bolam agreed to undergo an electro-convulsive therapy. However, the procedure did not go well as he was not given a muscle relaxant. When he sued the hospital for neglect, it was seen that it was a common practice for professionals not to warn patients if the risk is small. It was also concluded that a medical profession should not be held guilty of negligence when he acts within his scope. They are not found guilty of neglect just because a reasonable man thinks that they should act contrary to the professional view. Bolam test for establishing breach of duty Breach of duty is found when a defendant fails to meet the standards expected by law. When it has been established that the defendant owes the claimant a duty of care, the claimant has the duty to show that there is a breach of duty. Breach of duty by a reasonable person is determined depending on various aspects including: The circumstances of the defendants or situation as seen in Vaughan Vs Menlove in 1837, where the defendant’s haystack caught fire. This was because of poor ventilation and to which the defendant was warned against. The defendant claimed that he used his best judgement and did not foresee the risk. It was held that his best judgement was not enough and thus was judged on the basis of the standards of a reasonable person. The courts also saw that there is a breach of duty of care in the case of Condon vs. Basi. This is where it was proven that the defendant’s conduct was amounting to a high degree of carelessness. In Balam Vs Friern Hospital Management Committee (1957), the courts were able to lay down the rules that can be in use when assessing the appropriate standard of reasonable care in negligence among professionals. This test expects that it must be according to a responsible body of opinion. This is where the defendant represents themselves as having average skills. In this case, Mr Bolam was a voluntary patient in a mental institution run by the Friern Hospital Management Committee. In the agreement, Mr Bolam agreed to undergo an electro-convulsive therapy. However, the procedure did not go well because he was not given a muscle relaxant. Therefore, he sued the hospital arguing that there was negligence on the part of the hospital. This is because they did not give him the relaxants, also they did not inform him of the risk, and they did not restrain him (SALMOND, 1945). The defendant won the case due to the witnesses’ proof that a lot of medical opinions are against the use of relaxant drug. Also because there is the risk of fracture is restraints are used. In addition to this, it was seen that it was a common practice for professionals not to warn patients if the risk is small. This is unless they are asked by the patient. Therefore, it was proven that there was no negligence at the hospital followed the general acceptable practice of an electro-shock practice. When trying to know a reasonable person, the courts apply the objective test. These tests include trying to prove the following factors: To begin with, that the likelihood of harm where it is not expected for the defendant to guard events that are not foreseen. This is seen the case of Haley Vs London Electricity Board in 1965 AC 778. This is where there are some workmen who were digging a trench in a pavement. During lunch time, they left without fencing the trench but just warned pedestrians using their tools. As a result, a blind man passing by fell and became deaf. The defendants argued that they did all that they can to warn an ordinary person. However, it was held that they were liable as it was foreseeable that a blind man would pass by the site. Thus, they should have given more protection (ELLIOTT, 2001). Reasonableness also depends on the seriousness of harm where a person’s actions are seen to be reasonable if he has considered the seriousness of harm. This is seen in the case of Paris Vs Stepney (1951) AC 367 House of Lords. This is where even though employees in the employment where normally not given goggles, the claimant needed to have them. This is because one of his eyes was blind and thus the seriousness of the harm would have been higher than that of other employees (STEELE, 2007). Reasonableness is also judged by the utility of the defendant’s conduct. This is best explained in the case of Watt Vs Hertfordshire (1954). This is where due to the emergency of the situation the claimant was instructed by his supervisor to lift a jack on the back of a truck. This led to the claimant injuring his leg when the truck backed, and the jack fell. The court held that as there was an emergency situation where they were saving a woman in the process, there was no breach of duty. The defendant’s conduct at the time outweighs the need for the firemen take precautions. This is because it was an emergency situation (ROSSINI, 1998). Finally, the test of negligence is on the basis of the cost of prevention. This is the cost that the defendant would incur when preventing harm. This should be seen to be reasonable as seen in the case of Latimer Vs AEC in 1953. This is where it was proven that the defendant did all did all that is possible to reduce the risk   Factors to establish a breach of duty of care When proving that there is a breach of duty of care, the claimant requires proving the following issues: To begin with, that the claimant needs to prove that an action does not normally occur. This is where there is negligence. After this, the claimant can take advantage of the rule of law of evidence referred to as “the res ipsa loquitur”. This means that facts speak for themselves. The claimant needs to ask himself if it is legitimate to apply the maxim. The claimant also needs to ask himself about the facts invoking it will hold. This was seen in the case of Scott Vs London & St. Katharine’s Dock (1865) 3 H. & C. 596. In this case, the Court found out that if a thing is under the management of the defendants or, under his servants, and if the accident would have not happened if there was proper care, or in the ordinary course of things, and in the absence of proper explanation, it is concluded that there is negligence (LUNNEY, 2008). Another factor that is applied when establishing if there is a breach of duty of care is how foreseeable the breach is. An individual is liable for breach of duty of care if it can be proven that the harm was foreseeable. This is evident in the case of Haley Vs London Electricity Board, in 1965 AC 778. It was held that the workmen were liable as it was foreseeable that a blind man would pass by the place where they were digging the trench. They should have considered that a blind man might pass by there and thus would have given more protection to avoid the accident (WRIGHT, 2001). In the case of professions, factors that determine if there is a breach of duty of care is mainly if it can be proven that an act that led to harm was beyond what is expected in the profession. If this act is not beyond this scope, then there is no breach as seen in the case of Bolam Vs Friern Hospital Management Committee in 1957. This is where it was also concluded that a medical profession is not guilty of negligence if he acts within his scope (HARVEY, 2000). Bibliography HARLOW, C. (2005). Understanding tort law. London, Sweet & Maxwell. SALMOND, J, & STALLYBRASS, W. (1945): Salmond's Law of torts; a treatise on the English law of liability for the civil injuries. London, Sweet & Maxwell. STEELE, J. (2007). Tort law: text, cases, and materials. Oxford, Oxford University Press. HODGSON, et al. (2007). Tort law textbook. Oxford [u.a.], Oxford Univ. Press. ROSSINI, C. (1998). English as a legal language. London [u.a.], Kluwer Law International. WRIGHT, J. (2001). Tort law and human rights. Oxford [u.a.], Hart. ELLIOTT, C, & QUINN, F. (2001). Tort law. Harlow, Longman. LUNNEY, M, & OLIPHANT, K. (2008). Tort law: text and materials. Oxford, Oxford University Press. LEVINSON, J. (2002). Contributory negligence. Welwyn Garden City, Hertfordshire, [England], EMIS Professional Publishing Ltd. HARVEY, B, & MARSTON, J. (2000). Cases and commentary on tort. Harlow, Longman. Read More