Standard of Care in Negligence Actions - Essay Example

In Relation to the Standard of Care in Negligence Actions, the Characteristics of the Defendant are never taken into Account ID Number Course Title & Code Instructor’s Name Date Total Number of Words: 2,521 Introduction Negligence cases can either be classified as clinical negligence or professional negligence1. To give the readers a better idea about this subject matter, the first part of this essay will first discuss what negligence torts are all about. In relation to the standard of care in negligence actions, some reasons why the characteristics of the defendants were never taken into account will be tackled in details. As part of going through the main discussion, several real-life cases will be provided as evidences that characteristics of the defendants were never taken into account each time a defendant was facing charges related to negligence. About Negligence Torts Tort is pertaining to the act of breaching a non-contractual civil duty that is commonly owed to the public2. In general, the nature of torts can either be intentional or unintentional. Under intentional torts, defendants are being accused of purposely hurting another person (i.e. slander, libel, assault cases, etc.). On the other hand, unintentional torts include negligence which means that defendants did not hurt another person on purpose3. For example, healthcare ethics and law is an essential part of the daily medical practices of health care professionals. Specifically the study of healthcare ethics focuses on the evaluation of merits, risks, and other social concerns with regards to the activities provided by the healthcare professionals to the patients. In relation to medical practices, the code of ethics and the legal implications of healthcare profession must be followed carefully to ensure that the best medical practices will be rendered to the patients4. The study of health ethics and law has laid its foundation on the respect for Human Rights. Under the law of obligation, healthcare professionals are obliged to give respect to the patients’ autonomy particularly when it comes to decision-making for their own treatment as well as being informed with the matters related to the process of their treatment5. Likewise, health care professionals should also observe the practice of non-maleficence, beneficence, and justice6. Aside from doing only good actions that will further improve the welfare of the patients, healthcare professionals are required not to injure the patients in any way. By being fair to all, healthcare professionals can avoid being liable for any future legal claims. For example, in violation to the healthcare ethics, members of the healthcare professionals may end up unconsciously or unintentionally harming the patients. In the process wherein the healthcare professionals are found guilty of harming the patients, the healthcare professionals may end up facing tort law such as the case of negligence7. Through the use of civil litigation, the plaintiff or patients who were unintentionally harmed by a healthcare professional will be entitled to receive some form of financial compensation from the defendant(s)8. Aside from loss distribution, vindication, and deterrence, tort laws can be used to make the defendant punishable for his negligence. Torts related to negligence are all about claims on injury caused by unintentional breaching the healthcare professionals’ duty of care to the patients9. Within this context, injury pertains to all types of damages such as physical injury and pain, unnecessary medical bills, econommic losses10, and emotional distress caused by lost of life or wages. To control the public peace and order, the profession of the police is unique in the sense that this group of professionals do not owe duty of care to the public11. Although mostly applied in medical malpractices, negligence can also apply to other professional cases like the owners of manufacturing companies, drivers, bankers, etc12. For example, even though the company managed to make these protective clothing available for its employees’ use, the judge was most likely to conclude that the employer was guilty of negligence for not strictly requiring their employees to wear protective clothing at work13. However, the House of Lords contested that it is partly the obligation of the employees to wear the protective clothing and that this particular issue was outside the law. It is a common misconception that the case of negligence is limited to professionals. In fact, even trainees or learners such as the case of driving students are also legally accountable and subject to the same standards of care14. To avoid such cases, legal experts require all professionals to observe the standards of care when caring for another person. Evidences that the Individual Characteristics of the Defendants were never Taken into Account One of the main reasons why characteristics of the defendants were never taken into account in any negligence cases is because litigations on professional or clinical negligence are often based on “res ipsa loquitur”15. The “res ipsa loquitur” is a Latin word which means that “all thing speaks for itself”16. With this in mind, negligence cases should be litigated based on factual evidences and situations. Given that the British law on negligence is objective by nature, the jury will always focus their final decisions on whether or not the defendant has failed to exercise the required care and skills needed to avoid a negative situation. For these reasons, the defendants’ characteristics are not considered as legal evidence when solving cases related to negligence. Legal investigation behind the breach of duty is often based on the standard of care17. Under the British law, the “reasonable man” test is often used in the court to determine whether or not the defendant failed to comply with his duty of care18. The “reasonable man” test is a type of test that is more focused on examining the objectivity of the case. It means that this particular test does not consider any subjective information coming from the defendants’ account during the litigation process. In case the jury needs to re-examine whether or not a professional is not guilty of negligence, the court may use the Bolam test19. In case the jury needs take into consideration the conduct of the defendant, the court will balance out the situation by considering the concept of utility. In general, a “reasonable man” means that a person is fully matured, “not drunk”20, “not impotent”21, and “not unusually excitable”22. Back in early 1950s, the use of words that can provoke a person to commit something illegal is not considered as significant part of legal proceedings23. Up to the present time, most of the cases related to negligence are based on the end result of his own action. One of the most prominent and relevant case wherein the litigation on negligence was based on purely objective evidences was the case of McCrone v Riding [1938], Corkery v Carpenter [1951]. Basically, the case of McCrone v Riding [1938] is a good example wherein the court proceedings were exclusively based on objective evidences24. At the time of the accident, McCrone was still in the process of learning how to drive. Even though McCrone was a driving student at the time the accident happened, the defendant was still charged of careless driving. Within this context, it is clear that the British law does not literally take into consideration the defendants’ characteristics when solving cases related to negligence. It means that as soon as the court has proven that the driver failed to meet the required standard of a reasonable and experienced driver, the defendant will more or less become liable for negligence. Another good example is the case of Corkery v Carpenter [1951]. Pertaining to this particular case, the defendant was literally drunk when he was caught pushing his bicycle along the Board Street25. In this case, it was clear that the judge did not consider the characteristics of the defendant. In relation to section 12 of the Licensing Act 1872, Corkery was imprisoned for a month just because he was drunk while pushing his bicycle along a street26. Even though nobody was hurt in the incident, the judge decided to punish the defendant in a form of imprisonment to discourgage people from the use of any kind of transportation when intoxicated. In a more recent cases of professional negligence, the Court of Appeals acknowledged the fact that auctioneers have duty of care to its buyers. Specifically in the case of Thomson v Christie Manson and Woods Ltd [2004], the auctioneers should be carefuly in making statements with regards to the lot details they are selling. Given that the jury can prove that the auctioneers have breached its duty of care owed to the buyers (claimants), the auctioneers can be liable for negligence27. Based on objective evidences, Goldstein v Levy Gee [2003] is another good example of professional negligence wherein the Court of Appeal has conclude that the defendant was not guilty of negligence. In line with this, Levy Gee – defendant who was the company’s auditor was responsible in assessing the market value of shares. However, the defendant decided to undervalue the actual market value of shares that Mr. Goldstein was required to sell to the defendant. For this reason, Mr. Goldstein was decided to legally sue the defendant28. After examining the actual market value of the company’s shares, the judge found out that the actual market value should range between £50.46 to £61.55. Since the defendant’s valuation was in between the accepted range of market price (£52.52), the defendent was not charged of negligence. Specifically the case of Floyd v John Fairhurst and Co [2004] is a good example causation and damages29. Under this particular case, the Court of Appeal has considered the idea that the first claimant may have not been accused of tax relief in case the defendant was competent enough to give him proper advices. In other words, it was the defendant who was found guilty of violating or breaching the duty of care he owes to the first claimant. Given that the claimant is not capable of proving that his economic loss was directly caused by the negligence of a professional, then the claimant can only have the right to be paid for the nominal damages that he has encountered after the Court of Appeal has technically proven that the professional was guilty of negligence30. Discussion One of the most obvious reason why the jury does not consider the defendants’ characteristics is to give a fair compensation to the claimants. In reality, there are cases wherein negligent acts can result to unintentional death. In case the jury will be open in considering the individual characteristics of the defendants (i.e. age, gender, etc.) when solving tort cases, there is a bigger chances wherein some of the lawyers could make use of the defendants’ characteristics as an excuse for not being punsihed by the law based on the actual damages the defendant has caused to the claimants. Earlier it was mentioned that a “reasonable man” means that a person is fully matured, “not drunk”31, “not impotent”32, and “not unusually excitable”33. Now, let us look back at some of the examples presented in this study. In case the judges will be open in considering the defendants’ characteristics when solving a tort case like negligence, one can assume that McCrone should not be legally charged of careless driving due to the fact that he was still in the process of learning how to drive when the accident happend. If the student driver can get away with the unintentional harm he/she has inflicted to another person, then anybody including you can be a potential victim of a student driver34. Mental or psychological incapacity is one aspect that will totally make a person become unreasonable man. If the Court of Appeal will have to judge the defendant based on the standards of a person with mental incapacity, then people who are guilty of negligence can be set free from from the damages they have caused to another person. Therefore, in case the jury will consider the defendants’ characteristics when solving tort cases, a lot of the defendants will end up using mental incapacity as an excuse for not being punished under to tort law. Although being intoxicated could temporarily distort the normal senses of a reasonable man, the jury will always consider the idea that it was the person’s choice to drink alcohol and get drunk. For this reason, Corkery was legally accused of violating 12 of the Licensing Act 1872 at the time he was caught pushing his bicycle in a public area while under the influence of an alcohol35. Another obvious reason why the jury does not consider the defendants’ characteristics is because of the fact that the British law on negligence is objective by nature. Given that the jury would start considering the defendants’ characteristics during the court proceedings of tort cases like negligence, then the actual legal investigation behind the breach of duty will not purely be based on the standard of care36. It means that there is a strong need for the higher courts to change some of the existing legal policies that are commonly used when solving tort cases throughout the United Kingdom. Furthermore, tort cases such as professional or clinical negligence is all about unintentionally inflicting harm to another person caused by carelessness. If the Court of Appeal will be very lenient in handling tort cases, then we can expect the number of victims to increase in the nearby future. By disregarding the individual characteristics of the defendant, the Court will be able to give a better compensation on the part of the victims. It will also serve as a precaution to each professional when delivering their duty of care to the public. Conclusion Under the tort law, the process of unintentionally harming another person caused by carelessness is a good example of tort negligence. To avoid facing legal charges related to negligence, all professionals should see to it that they will strictly observe and deliver reasonable care of duty to the public at all times (Feinman, 2010, p. 153). In most cases, this is possible by making it a practice to foresee or think ahead of time whether or not their future actions or decisions can cause intentionally harm the other people. There are several reasons why the Court of Appeal does not consider the defendants’ characteristics during the litigation process of tort cases. First of all, considering the defendants’ characteristics during the process of litigating tort cases will only encourage more defendants to find legally accepted excuses as a way of preventing the legal punishment of their actions. In line with this, the number of defendants who may end up using mental incapacity as an excuse would definitely increase. When this happen, the jury will not be able to give fair compensation to the claimants. Lastly, the British law on negligence is based on pure objective evidences. Furthermore, legal issues related to the breach of duty are purely based on the expected standard of care37. For these reasons, the process of considering the defendants’ characteristics during the court proceedings would mean eradicating the old legal policies in exchange of a new one. It means that existing laws on tort cases will have to be ammended accordingly. 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