Employment Law and Tort - Case Study Example

Employment Law and Tort No: Advice to Harry Medical Negligence and the Duty of Care: Medical negligence can be seen as committed by Mrs. Tourniquet, the biology teacher. She lacked the necessary expertise required to deal with the injury of Harry. When Harry reached the school by limping, the biology teacher noticing the absence of the school nurse should have contacted any doctor or the absent nurse for assistance related to the injury. She was restricted to do any practice of nursing at school because of some incident in which, she was already involved. However, she qualified as a nurse, so her act comes under the category of medical negligence. Medical negligence can be described as negligence that results in harming any individual physically or mentally because of negligence of a medical person such as doctor or nurse. The claimant is required to provide the proof of negligence. The biology teacher, Mrs. Tourniquet was to consider the probability of occurrence of after-effects of het act. While giving medical assistance, she was required to evaluate herself as per her practice and knowledge. The claimant should ensure that defendant’s breach to duty come up as a result to cause damage to the plaintiff, which in this case is Harry. As far as duty of care is concerned, the conditions of foreseeability and proximity should be applied. Foreseeability can be described as the defendant’s eligibility as a reasonable person to foresee the damage attached to her act. In terms of proximity, the parties in a conflicting situation should have legal relationship with one another. In this situation, Mrs. Tourniquet lacks foreseeability, as she is unable to foresee the after-effects of her false assistance. She is responsible for medical negligence and is liable to be reprimanded as per the laws related to medical assistance and the duty of care. Vowles v Evans [2003] can be taken as an example in understanding liability of Mrs. Tourniquet. As per the mentioned case, the rugby referee was supposed to inform the players about the enforced rules that should be complied because rugby is a risky game. The referee possessed duty of care to the rugby players. The referee failing in enforcing the rules was held responsible for the injuries of the defendant. The case of Wilsher v Essex AHA [1988] can be seen as an example of medical negligence, but the case was given in the interest of defendant as the plaintiff failed to handle the burden of proof by relating his injury to the medical negligence of the defendant. The case of Robinson v Post Office [1974] is another example of medical negligence. Robinson fell because of slipping because of oil leakage from a pump at the workplace. The doctor did not follow the guidelines and procedural framework for injecting two doses of ATS that required a gap of half an hour between them. He followed his own pattern by giving only one-minute gap in between. This caused brain damage to the plaintiff. However, the post office was held liable as it was because of the workplace that made him to get wrong medical treatment. In addition, the doctor gave second dosage with less time gap without seeing him allergic to the dosage. Considering the above-mentioned examples and the child Harry, Mrs. Tourniquet should be held liable for her medical negligence. In addition, she did not follow the restriction of not practicing her nursing at school. She had a duty of care towards Harry, but she was supposed to contact some specialized or concerned person about his injury in place of dealing with his injury herself. Her act made Harry to lose his leg, which is not a negligible concern. Harry can sue Mrs. Tourniquet under medical negligence and not following administration’s restrictions. 2. Advice to Joe, Kate and Len Negligence, Duty of Care, Medical negligence and Foreseeability of Damage: Ian is responsible for the accident, as he was over-speeding that resulted in crashing into the buffers at the end of the platform making Joe to face physical injury. Joe’s leg was broken because of the accident. Ian’s driving was negligible and he did not foresee the after-effects of his rash driving. He has a duty of care towards the passengers and he lacked in it. He is liable under the laws related to negligence, duty of care and foreseeability of damage. The damage that Joe faced is because of Ian’s act so it satisfies the definition of causation and remoteness of damage. Ian is again responsible for the injury of Kate, as the flying glass injured her leg as an after-effect of Ian’s unreasonableness. Kate faced somewhat similar situation to Joe, so she can also held Ian liable as per negligence, duty of care and foreseeability of damage. The damage done to Kate also satisfied the description of causation and remoteness of damage. As per the Tort of Negligence, “The defendant owed the plaintiff a duty of care”; as a reasonable person, he breached his duty by not caring for the standards and lastly, the plaintiff was made to have a medical condition based on defendant’s breach of duty. Ian was negligent in terms of his duty as he breached his duty of care towards Joe and Kate, so he was liable for the punishment. Donoghue v Stevenson [1932] AC 562 and Baker v Willoughby (1970) can be seen as examples where a negligent act of the defendant caused physical damage to the plaintiff. Kate can also sue the hospital for wrong transfusion of blood that caused her kidney damage. Due to over-speeding, an accident causing physical or property damages was expected making the damages foreseeable. Here, the case of The Wagon Mound (Overseas Tankship v Morts Dock & Engineering) [1961] can be seen, where the defendant’s servants were held responsible for negligence as they ignored a foreseeable situation of oil catching fire. Joe and Kate can sue Ian as per his negligence, ignoring the duty of care by showing unreasonableness and foreseeability of the damage. In addition, Kate should sue the hospital for wrong transfusion of blood leading to kidney damage. Negligence and Public Policy: Ian’s driving resulting in injuring two persons and damaging the railway station also disabled Len to continue working in his café for a whole week that gave him an economic loss. Considering the fact of commercial or financial loss as a result of Ian’s unreasonable act, Ian can be sued under the law of Tort of negligence, as he violated his duty of care, which eventually resulted in bringing an economic loss for Len. A number of cases can be seen in the lieu of economic loss such as Ross v Caunters [1979] 3 All ER 580, where the negligent act of defendant gave an economic loss to the plaintiff. Similarly, there are cases of Junior Books Ltd v Veitchi Co Ltd [1983] 1 AC 520, Yuen Kun-Yeu v AG of Hong Kong [1987] 2 All ER 705 and Governors of the Peabody Donation Fund v Sir Lindsay Parkinson Ltd [1985] AC 210, which are all examples of negligent acts causing financial loss to the claimants. The economic loss faced by the claimant as a result of negligent act comes under the category of public policy. Considering the mentioned facts, Len can file a complaint against Ian and can ask for compensation for the economic loss. 3. Advice to Paul, Ray and Sue Negligence and Duty of Care Nick has committed a number of mistakes and as an employee working for Oggs Ltd, he should be prosecuted for the violations and wrongdoings. In addition, he breached the rules set by the company. He made many mistakes, which resulted in physical damages to many people. His van is coloured in company colour showing his association with the company. Therefore, his acts affect the company’s reputation altogether. He was negligent in dealing with people and driving. His negligent driving injured Paul and Sue while by dealing the thief Ray, he again take the law in his hand. As per the Tort law of Negligence, Nick did not act as a reasonable person, as his driving is mostly negligent. He injured Paul in reversing his carriage showing negligence and inability to act as per duty of care. The drivers should have duty to care to ignore any accidents resulting in physical and mental injuries of people. However, he act unreasonable and did not prevent the injury, which he could. Therefore, he is liable to be reprimanded, as per the law for injuring Paul. The case of Baker v Willoughby [1970] can be taken as an example here in which, the defendant injured the plaintiff, which eventually resulted in amputation of the plaintiff’s one leg. The defendant was held responsible for showing negligence. Similarly, Smith v Leech Brain & Co (1962) QBD can be seen as a case of negligent act of the employer due to which, molten metal burned Smith’s face resulting in cancer and eventually his death. Therefore, Paul can claim against Nick regarding his negligence and lack of duty of care. As far as the case of Ray is concerned, Ray is a thief and wanted to steal from the van. Ray’s action can affect Nick and his job. Therefore, Nick hit him for his stealing act as Ray himself was working against the law. He hit the thief according to his act. However, he should have considered the after-effects of his doing. He should not injure Ray to such an extensive limit. Ray can sue against Nick for the physical damage, but eventually, Nick’s action will be ignored, because Ray himself did not foresee the situation. Hence, Ray should not file against Nick. In the case of Sue, Nick violated the company’s conditions, as he was restricted to give lift to anyone. Additionally, he was over-speeding resulting in physical injury of Sue. Sue can file against Nick on the basis of his negligent driving, lack of concern towards the rules of road and violating the company’s rules by giving her a lift. However, she intentionally accompanied Nick making her case a little weak. Nevertheless, Nick is accountable for the injury of Sue, so he can be reprimanded under the Tort law of negligence and duty of care while driving. The cases that are applicable here are Barnett v Chelsea & Kensington Hospital [1968] and Cummings (or McWilliams) v Sir William Arrol & Co [1962]. Nick’s rash driving resulting in injuring of Paul and Sue are indicative of his breaching the laws and he can be reprimanded. Both the plaintiffs suffered physical damage because of breach of duty of care by Nick. Read More