Claims in Negligence Name - Essay Example

Claims in negligence Name Institution Tutor Date Claim in Negligence Abstract: James, a rising ice hockey star, asks for advice to deal with legal issues about claim in negligence. This is after his career comes to an end as he tests positive to prohibited substance clearly administered to him by the team doctor. This essay discusses the legal issues involved for successfully application of a claim in negligence with reference to James’ state of affairs. The issues involved in the team doctor and the coach successfully applying for volenti non fit injuria as a defense are also discussed. James is a rising ice hockey star who hopes to make a career out of the sport. He is aware that to achieve his dreams, he must listen to the team doctor, the coach and the physio. James’ contract states that he accepts the special diet, which includes vitamin and supplements. Consequently, he does not question when the team doctor administers the supplements to him. However, when he later undergoes an “out-of-competition drug test”, he tests positive to prohibited substance. James is concerned as he claims he has never intended to use such substances. James needs to establish a claim in negligence.1 Under the Australian Law, for the claim in negligence to be successful, James’ situation must satisfy four elements. First, it must be established whether the coach and the team doctor owed James a duty of care. Second, it must be ascertained whether the defendant failed to live up to the standards of care as specified by the contract that James signed. Third, it must be established whether James has suffered any injury or loss, and lastly, it must be established whether the team doctor and the coach are partly or wholly responsible for necessitating the loss. In brief, the four elements include duty, breach, damage and causation2. First, it is important to identify who a duty of care is owed. Essentially, negligence is concerned with compensating the individuals who have suffered a loss resulting from the lack of care of others. If a duty of care cannot be determined and proved to exist in each of the situations, then the remaining elements need to be established3. However, a duty of care can be established. James signed a contract for the ice hockey team agreeing to consumer the special diet, which included the vitamins and supplements. Towards this end, it is critical to note that it was the responsibility of the team doctor and the coach to ensure that the substances consumed by James were healthful and legitimate. This explains why James never questioned the team doctor when he was issued with the supplements. The principle that impose liability in tort for such careless behavior by the coach and the team doctor was established in the case of Donoghue v Stevenson and remains valid today in the Australian law, subject to unavoidable modifications and refinement4. In the case Donoghue v Stevenson, Lord Atkins specified the “neighbor principle” for determining existence of duty of care5. Basically, neighbor principle depicts proximity. In which case, there must be legal proximity, or a legal relationship between James and the team doctor (or the coach) from which the law can attribute duty of care. Naturally, the coach and the team doctor owe a duty of care to the players. In this case, the team and the doctor were both in dereliction of the duty by administering the supplements with the prohibited substance (in breach of an express prohibition)6. It is also clear that the crucial causation element exists. It can be conveniently argued that were it not for the coach and the team doctor’s actions, James would not have witnessed the loss of seeing his career can to a premature end. Further, James’ damage can be argued to be at proximity (not remote) to the law as it was a foreseeable consequence of the actions of the coach and the team doctor that led to it. The critical factor in establishing a liability is whether the loss or damage is of such magnitude that any reasonable person should have foreseen. However, a duty of care will not be allowed to the claimant (in this case James), if the claimant was unforeseeable. It follows therefore that the coach and the team doctor can be held liable for tortuous claims7. Negligence tort law is a law for personal injuries that result when a person fails to take reasonable care leading toe injuries of another person. Under James’ scenario, it involves the team doctor and the coach violating his rights under circumstances that give rise to legal liability. Personal injury under this circumstance involves the financial loss resulting from loss of a promising career8. However, in the case Anns v Merton London Borough Council, the court held that a two stage test should be used to determine whether the claim is actionable9. The two tests include neighbour’s test and Ann’s test. Therefore, the neighbor test is established (legal proximity as discussed above), the Ann’s test should as well be applied. Typically, Ann’s test examines whether there were any policy considerations dictating that no duty of care should hold. The basis of this test was summed up in the case Curran v Northern Ireland co10. Indeed, in James’ scenario, no policy considerations existed limiting the duty of care between the team doctor and the coach, and James. Having passed both tests, it is therefore conceivable that James can successfully establish a claim in negligence. In any case, the coach and the team doctor may want to apply volenti non fit injuria as a defence to claim that they did not owe a duty of care to James and to defeat the claims of damage. Volenti non fit injuria denotes that the claimant involuntarily agreed to undertake the legal risk of injury or damage at own detriment, sacrifice or expense. The facts of the case are simple. In their defense, the coach and the doctor claim that James voluntarily agreed to taking of the prohibited substance. Under the Australian law, Volenti non fit injuria is a full defense and fully exonerates defendants11. Such a scenario was demonstrated in the case Leyden v Caboolture Shire Council12. With reference to Volenti non fit injuria as a common law doctrine, it should therefore be established whether James willingly places himself in a position of harm, while aware that some degree of harm might befall him. In which case, if this is established, then he might not be able to claim against the coach and the team doctor in tort. For the coach and the team doctor to be successful, two issues have to be established. First, whether James was fully aware of the risks involved in using the substance, and second, whether agreed expressly or impliedly to waive all claims for damage. In which case, the mere fact that James was knowledgeable of the risks is not sufficient as “knowing is not volunteering” (sciens non est volens)13. In actual sense, his consent must be freely voluntary. In addition, if their relationship is such as there is doubt as to whether his consent was truly voluntary, such as in the relationship between an employer and a worker or a coach and player, then the court may not find volenti 14. These principles were held in the case Scott LJ in Bowater v Rowley Regis Corp15 and in the case Smith v Baker16. Indeed, although James must have been aware of the risks of using the supplements and took them without questioning the team doctor, there was no evidence that he had voluntarily agreed to run the risk of the injury. By merely continuing to play ice hockey does not indicate voluntary consent to use the prohibited substances. Further, even though James signed the contract agreeing to use the supplements, it is not possible for the defendants to prove that the claimant agreed to use prohibited substances or waive his legal rights so as to succeed in volenti plea17. In the end, it can be concluded that the chances of the coach and the team doctor successfully applying volenti non fit injuria as a defense is very limited. In any case, it is likely they will not be successful In conclusion therefore, James will succeed in applying for the claim in negligence as the pre-requisites of the modern tort of negligence can all be established in the case. The four elements include duty of care, breach, damage and causation. Overall, James can prove that the coach and the team doctor owe a duty of care to him. In addition, there is a breach of the duty of care by the two. Lastly, the resulting damage is at proximity to the law, as there is a causal link between the injury and the defendant. Indeed, negligence, aside from contract, gives a right of action to the party injured by the defendant’s negligence. However, the coach and the team doctor may want to apply volenti non fit injuria as a defense to claim that they did not owe a duty of care to James and to defeat the claims of damage. Their chances of success are very remote as it cannot be established whether James’ consent to use the prohibited substance was actually ‘voluntary” given the nature of their relationship. References Books, Journals, Articles Harpwood, V. (2000). Principles of Tort Law. Newport: Cavendish Publishers Newnham, H. (2000). "When is a teacher or school liable in negligence?" Australian Journal of Teacher Education, 25(1), pp.1-55 Pearsoned (2009). Defences to negligence. Web. Retrieved 13 August 2013 Stickley, Amanda P. (2007) 15 Year Old Volens to Bmx Riding Risks. Web. Retrieved 13 August 2013 Yule, J. (2008) “Negligent investigation by police : can a duty of care be found using the existing negligence principles in Australia?” Journal of Australasian Law Teachers Association, 1. pp. 379-389. Yule, J. (2011) Defences In Medical Negligence: To What Extent Has Tort Lawreform In Australia Limited The Liability Of Health Professionals?. Web. Retrieved 13 August 2013 Case Laws Anns v Merton London Borough Council [1978] AC 728 Smith v Baker [1891] AC 325 Curran v Northern Ireland Co-Ownership Housing Association [1987] 2 All ER 13 Donoghue v Stevenson [1932] AC 562 Scott LJ in Bowater v Rowley Regis Corp [1944] KB 476 Read More