James Claim in Negligence - Essay Example

Student’s Name Instructor’s Name Class Name Date when due James’ claim in negligence This essay will discuss the requirements needed to establish a claim in professional negligence, and whether given the circumstances of this case the defendant can apply volenti non fit injuria as defense. Professional negligence is an area of business law that is supported by many cases, some of which have been used to set judicial precedence. More specifically, this essay will state an argument referring to relevant case laws that are in light of the scenario provided, sufficient evidence is available to institute a successful claim of professional negligence against the coach and the team doctor. The team doctor and the coach had special expertise in their respective field. Legally, they can be referred to as professionals.1 By implication, the relationship that exists between James and the team doctor is that of doctor-patient. This is because the team doctor is charged with the responsibility to ensure James is in good health. The team doctor gives James supplements that James does not question about, only to discover later he might have been consuming prohibited substances. This essay will also discuss whether the coach being an expert in his field has a duty to ensure that he advices James accordingly on what to do or not to do as a hockey player. The ruling in Vowels v Evans and Welsh rugby union [2003] held that a referee and a player have close proximity. It was probable that if the referee failed to enforce the rules injury could occur. The referee being a professional in his own field was expected to enforce the rules so as to prevent injury. In his judgment, Lord Phillips stated that it was fair, just and reasonable to impose a duty of care. There existed a structured relationship and the referee actions or his omissions were capable of causing harm to others. The law will impose a duty of care in such circumstances. This case clearly shows that if someone is a professional in a certain field, then he owes those who rely on his actions a duty of care.2 The first element to be tested is duty of care. In the case of James, he relies fully to the actions of the team doctor. His contract had stated that he agreed to special diet, which included supplements and vitamins, and that is why he did not question it when the team doctor gave him supplements. As a professional, the team doctor has a duty to ensure that the supplement that he gives James are safe and do not include any prohibited substance. The rules of the game of hokey states clearly the substances that should not be taken by hockey players, the team doctor as a professional whose duty is to ensure good health of the players should ensure that all rules are followed. As it was clearly stated in the case of Vowels v Evans and Welsh rugby union, it was foreseeable that if the rules were not enforced injury would occur.3 In this case of James injury occurred in form of testing positive for a prohibited substance. The team doctor owed a duty of care to James, he bleached that duty, and as a result, James suffered damages as a result of his career in hockey getting ruined. The ruling in the case of Hucks v Cole [1993] stated that, in medical practices, when evidence show that a gap existed in professional practice and as a result there is a risk to cause injury, the court should anxiously examine the gap, especially if the risk can be inexpensively and easily avoided. If the court, on analysis of the reasons provided, finds that the facts given to serve as reasons why the gap could have occurred are not sufficient enough, then the court, where necessary, will consider that as negligence.4 In this case of James, it is probable that there was a lacuna. Most likely the team doctor gave James some supplements, which in his own judgment he did not know all the substances contained therein. The reasons he is giving for not taking necessary precaution are not convincing. Actually, the only response he is giving is that James consented voluntarily to take such substances. In the light of the reasons the team doctor is giving, it may be considered that he acted negligently.5 The coach also owes James a duty of care. The coach is an expert in field he is giving advice on. From the scenario in the case, James accuses the coach as one of the persons to blame for his unfortunate status. In the extract, we are not told whether the coach gave James any supplement that could have contained prohibited substances, or whether the coach gave James any advice that could have made him take the prohibited substances, but for the fact that James accused the coach of having contributed to his injury, it is fair to assume that the coach can be liable of omissions. He, as a professional, had the knowledge or he ought to have knowledge that there was a foreseeable risk to James if he continued to use supplements. Having that knowledge, the coach neither prevented James from harm, nor did he tell him of the danger he was in. The most challenging prove in a claim of negligence is the causation element. A plaintiff must prove that indeed he suffered damage as a result of negligence of the defendant. He must prove that were it not for the plaintiff’s negligence, the injury could not have occurred.6 In Bennett v Chelsea & Kensington Hospital [1969], Bennett went to hospital complaining of vomiting and severe stomach pains. The nurse called the doctor and the doctor told him to go home but contact the GP in the morning. Five hours later Bennett died of arsenic poisoning. Even if the doctors had examined him, nothing could have been done to safe him. It was held that since the failure of the doctors to examine the patient did not cause the death, the hospital was not liable. In our case, however, if James can prove that it was only after the acts or omissions of the team doctor and the coach that made him to test positive of prohibited substances, then an action of negligence can be successful.7 Defense of Volenti Non Fit Injuria This is a doctrine which holds that any person, who willingly and knowingly puts himself in a situation that is dangerous, cannot thereafter sue for injury that may result. However, for this defense to succeed, three elements must be present. There must be a contract made voluntarily by consenting parties in full realization and knowledge of the risk and its extent. In Smith v baker [1891], while giving his judgment, Lord Watson noted that the question as to whether the defendant is liable for negligence should not be looked as whether the plaintiff exposed himself to danger, but rather it should be analyzed as whether the plaintiff agreed that should any injury occur to him, the risk is not for the defendant but his.8 In the case of Nettleship v Weston, [1971], Lord Denning stated that nothing short of an agreement can suffice to waive a negligence claim. The plaintiff must agree either expressly or impliedly to waive any claim that may result out of negligence of the defendant.9 In our case, there was no implied or express agreement, which stated that James had agreed to waive any negligence claim against the team doctor or the coach. In another case, Morris v Murray,[1991], both the defendant and the plaintiff were drinking, and later the defendant, who was a pilot, suggested they should take the aircraft for a ride. The claimant did not object. They took off. A few minutes later the plain clashed killing the defendant and seriously injuring the claimant. The defendant side raised volenti Non Fit injuria as defense, and it was allowed. It was argued that, for the claimant to accept a ride from a heavily intoxicated pilot, it could imply that he knew the risk, he voluntarily undertook the risk, and he appreciated whatever the outcome could be. This is not the case in the scenario presented by the situation James is in. The team doctor presented himself as a professional, and there was no reason for James to suspect otherwise. In that regard, there could be no evidence to prove that James undertook the risk voluntarily.10 As an ordinary person with no expertise in medical field, James is not expected to know that some of the supplements given to him by the team doctor, who he trusted, could contain prohibited substances. The team doctor was an expert in his field, and knew or he should have known that some of the supplements he is giving James can cause injury to his career. In the right of this argument, James can pursue Damages from the team doctor for negligence. He can also pursue damages against the coach if he could prove that through the omissions of the coach he suffered the injury. On the other hand, if the team doctor and coach raise volenti non fit injuria as a defense, it will fail. This is because they cannot satisfy the requisite elements needed for a defense of volenti non fit injuria to succeed Works cited Chu, John. “Analysis and evaluation of Victorian reform in general damages for personal injury under the tort of negligence.” Deakin Law Review, 12.2 (2008): 125-173. Cornock, Marc. “A legal commentary on negligence.” Paediatric nursing, 23.1 (2011): 21-22. Hawkins, Wendy L and Michael E. Enzle. “A priori actor negligence mediates a posteriori outcome effects on moral judgment.” Journal of Experimental Social Psychology, 28.2(1992): 169-185. Kümper, HJ. “Medical expert assessment in civil and criminal law from the legal liability viewpoint.” Zeitschrift fur arztliche Fortbildung, 90.7(1996): 589-590; discussion 591. Mahar, PD and Burke, JA. “What is the value of professional opinion? The current medicolegal application of the “peer professional practice defence” in Australia.” The Medical journal of Australia, 194.5(2011): 253-255. Available at http://www.ncbi.nlm.nih.gov/pubmed/21382000 Makwarth, V. “Doping and doping control.” Ugeskrift for laeger, 138.43(1976): 2658-2659. Pennels, CJ. “Liability in negligence.” Professional nurse (London, England), 13.1(1997): 52-53. Kotler, Martin A. “Reconceptualizing Strict Liability in Tort: an Overview.” Vanderbilt Law Review, 50.3(1997): 555. Reynolds, RA, Rizzo, JA and Gonzalez, ML. “The cost of medical professional liability.” Jama The Journal Of The American Medical Association, 257.20(2008): 2776-2781. Available at http://www.ncbi.nlm.nih.gov/pubmed/3573273 Schild, SM. “Negligence in the operating room: understanding the law.”Todayʼs OR nurse, 13.11 (1991): 11-16. Cited cases Hucks v Cole [1993] 4 Med .L.R 393 Morris v Murray, [1991] 2 QB Nettleship v Weston, [1971] 2 QB 691 Smith v baker& Sons [1891] AC 325 Vowels v Evans and Welsh rugby union [2003] 1 WLR 1607 Read More