The law of negligence covers a broad spectrum, with negligence being defined to apply in ‘any situation where a defendant has breached a duty of care owed to a claimant’. This essay will seek to look into the different areas within the law of negligence, to assess Lord Toulson’s assertion in Micheal v Chief Constable of South Wales (2015) . There will be a primary focus on his notion of ‘incremental growth’ , ‘argument by analogy’ , and the necessity of ‘policy considerations’ , with particular regard taken towards the mixture of policy considerations, in an effort to determine whether some areas, such as social costs, are weighed more heavily than others. Due to the wide breath and material covered under the law of negligence, this essay …show more content…
The development of duty of care
It can be argued that the development of the duty of care within the law of negligence draws parallels with Lord Toulson’s statement, growing incrementally as cases emerge, with policy considerations being at the forefront of this. This idea of incremental growth is reflected in the proceeding case law after Heaven v Pender (1883) which set out the initial idea about the importance of proximity between
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Furthermore, the Ann’s test similarly reflects this notion of limiting potential claims by specifying a ‘sufficient relationship of proximity based upon foreseeability’ between claimants and taking considerations on policies which could negate a duty of care. This explicit acknowledgement of policy considerations illustrates how the courts are keen to prevent the floodgates opening, as a large volume of new claims could swamp the court's resources. However, in particular to the Anns test, the incremental growth of law and the implementation of the Caparo test didn’t emerge from a lack of policy consideration, but rather from no recognition of previous policy, as ‘it was not necessary to bring the facts of that situation within those of previous situation where a duty of care had been held to exist’ within the Anns test. This draws parallels with Lord Toulson’s idea of an ‘argument by analogy for extending liability’ . The fact that there was no homage paid to previous case law in determining a duty of care may contribute to the necessity of implementing the 3 stage Caparo test , as it is necessary for courts to be consistent in their rulings so that people know where they stand under the law. This notion is supported by the
Duty of Care: best interest; defensible decision making; contextualising behaviour; identification of positive and negative risks
The Civil Liabilities Act 2002 defines negligence as a failure on the part of the defendant which results in the harm of the plaintiff which could have been prevented by taking reasonable care. The breach of duty must be foreseeable, Sullivan v Moody. The risk must be not insignificant, and a reasonable person under similar circumstances would have taken precaution against the harm. In this case
Duty of care is a requirement that all health and social care professionals, and organisations providing health and care services, must put the interests of the people who use their service first. They also have to do everything in their power to keep people safe of any harm, neglect or risk. As an individual healthcare worker you owe a duty of care to your service users, your colleagues, your employer, yourself and the public interest. All duty of care is described I Code of Practice. Duty of care means that you must aim to provide high quality care to the best of your ability. If for any reason you can’t do this then you must say so. You must adhere to a standard of reasonable care and you are expected to:
Precedents have played a significant role construction and transformation public policy over time. The concern that judges face is whether establishing a new duty of care will influence public policy. This is the issue that results from in the Cooper v. Hobart case. The judge constructed a final decision that Hobart did not owe a duty of care to Cooper due to explanations that are delineated in public policy. This essay will discuss in favour of the judge’s decision for the reason that establishing a new duty of care would have conflicted with existing public policy. Initially, I will be providing a concise summary about the case of Cooper v Hobart. This involves the facts, issues and ratio. Then, I will elucidate what the Anns test is
However, due to this idea of strict liability offences not requiring proof of fault leads to the simple moral claim of ‘is it right to punish a person who had no intent to commit a crime, and took precautions not to let anyone get harmed in any way, to still be convicted?’ This opens the argument against the use of strict liability as it suggests that no matter what the opposing says, strict liability is a criminal offence and it is not vigorously enforced. This in turn lowers the respect to law and the criminal justice system as it appears that the justice system cannot
This essay will briefly explain negligence and its elements and will further critically analyse the UK compensation culture and discuss whether it exist, or whether it is a perception created by the media. This essay will further discuss whether the UK laws encourage people to blame and claim and what the UK law has done to prevent an increase in the compensation culture.
In certain situations, a duty of care is owed to another person. For example, a surgeon owes a duty of care to whoever they operate on. The existence of a duty of care is established by the Neighbour Test which was brought in by Lord Aitken after the Donoghue v Stevenson case;
Furthermore, as discussed in chapter 3 there is inconsistent application of the legal rules to determine the liability of the medical professional. Therefore, as previously discussed solicitors are usually hesitant to pursue clinical negligence claims by the means of SFA. With SFA being the only means for claimants to afford to pursue clinical negligence claims the removal of civil legal aid for clinical negligence claims has meant that many claimants are unable to access the necessary legal representation and in turn access courts for their civil rights to be determined. Consequently, many claimants are not compensated for medical injuries inflicted due to the negligence of the medical professional, thus the current system is failing to meet its primary aim. More importantly, the practical difficulties in accessing and in turn using the civil justice system for clinical negligence claims has meant that the Scottish Government is failing to meet its obligation under Article 6 and 8 of the
This essay will argue that the decision reached in Cattanach v Melchior [2003] was the correct one. Supporting this argument is the courts departure from the principles established in McFarlane v Tayside Health Board [1999].Additionally, Cattanach extends itself by attempting to address and give legal clarity to the idea of compensable harm in relation to negligence of medical practitioners. This has ultimately led to Cattanach establishing a positive framework, previously not recognised by the courts, to award damages for the torts of wrongful birth and wrongful life. Finally, the reaction to Cattanach on the judicial and executive branches of government have had significant impact on shaping public policy in relation to these complex issues.
Arguments that an extension of liability for negligence would lead to a flood of litigation or to fraudulent claims were once granted greater credence than they are today. But other arguments, such as the possible commercial or financial consequences, the prospect of indeterminate liability, the possibility of risk-spreading (e.g., through insurance)
Torts of negligence are breaches of duty that results to injury to another person to whom the duty breached is owed. Like all other torts, the requirements for this are duty, breach of duty by the defendant, causation and injury(Stuhmcke and Corporation.E 2001). However, this form of tort differs from intentional tort as regards the manner the duty is breached. In torts of negligence, duties are breached by negligence and not by intent. Negligence is conduct that falls below the standard of care established by law for the protection of others against unreasonable risk of harm(Stuhmcke and Corporation.E 2001). The standard measure of negligence is the universal reasonable person standard. The assumption in this case is that a reasonable
The main idea of the law of negligence is to ensure that people exercise reasonable care when they act by measuring the potential harm that may foreseeably cause harm to other people. Negligence is the principal trigger for liability to ascend in matters that deal with the loss of property of personal injury. Therefore, a person cannot be liable for something unless they have been found negligent or have contributed to the loss of property or injury to the plaintiff (Stuhmcke, 2005). There is more to
It can be concluded that Mr. Prendergast was acting negligently whilst driving his car, above the national speed limit, as confirmed by his insurers. Therefore Contributory Negligence is the basic issue to be consulted with the insurers who are claiming that Steven’s claim ought to be ‘substantially reduced’ due to the negligence on his behalf.
In Gregg v Scott, Mr. Malcolm Gregg (‘the claimant’), the House of Lords examined the law of negligence in the area of personal injury. In order for the claimant to have a successful claim in court, the onus to shifts to the claimant to demonstrate that a duty of care owed by the doctor, there was a breach of that duty, an injury was sustained, and the negligence on behalf of the doctor Dr. Andrew Scott (‘defendant’) was a cause of the ‘injury’. If these elements are not satisfied, the claimant may lose its entitlement to full compensation.
Despite the general principle excluding liability for omissions, liability may arise in certain exceptional circumstances. Although these situations where a duty may arise on the basis of an omission are difficult to classify, what is usually required in all of them is some element of proximity. This may be created in a number of situations which will now be looked at. In addition, in such cases, the factors for establishing a duty of care (forseeability, proximity, fair, just and reasonable) laid down in Caparo will also need to be looked at.