Modern Day Approach To Negligence

Duty of Care: best interest; defensible decision making; contextualising behaviour; identification of positive and negative risks

A) The topic concerning this case is negligence law. The issue is whether Simon would be successful perusing a negligence claim.

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

There are three elements that must be present for an act or omission to be negligent; (1) The defendant owed a duty of care towards the plaintiff; (2) The defendant breached the duty of care by an act or omission; (3) The plaintiff must suffer damage as a result - be it physical, emotional or financial. The court might decide that Freddy (the plaintiff) was owed a duty of care by Elvis (the defendant) if they find that what happened to Freddy was in the realm of reasonable forseeability - any harm that could be caused to a 'neighbour' by Elvis' actions that he could reasonably have expected to happen. The 'neighbour principle' was established in the case of Donoghue v. Stevenson (1932).

The tort of negligence was established with the leading case of Donoghue v Stevenson (1932) . Donoghue got sick from having a drink in a café after finding a snail in the bottle. Around this time, there was no route for litigation due to no contractual association. The only contractual commitment was with Donoghue’s friend who bought the drink and the café owner. Lord Atkin quoted the Bible’s principle of

‘Is a no fault regime better than a negligence rule as a way of dealing with the causes and consequences of medical error?’

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.

Tort law is a considerably old branch of English law, covering a wide range of areas within such as defamation, nuisance, trespass and, most importantly, negligence. The latter set out the modern concept of negligence by means of Donoghue v Stevenson [1932] AC 562. Furthermore, in twentieth century a number of fundamental elements were established in negligence, elevating its significance above all other areas of tort law. Most problematic and difficult subgroup of negligence is clinical negligence, where doctor are held to another standards. Nonetheless, the old foundations were disturbed by the enforcement of the Human Rights Act 1998, which was a successful attempt to incorporate the European Convention of Human Rights into English domestic law. It is applied directly or indirectly into many areas of law, clinical negligence in torts in particular, adding multiple complications as it has to comply with the new Act. The influence of the HRA is yet to be fully researched professionally and amended. In attempt to explore the impact of the HRA 1998 on clinical negligence this essay examines the reasons for integration of the HRA and issues it came with and compares various types of negligence, liability of public authorities and remedies before and after the HRA came into force.

British Petroleum has a large operation in the United States and it has made investments to ensure that it develops these operations to maximize its production and increase profits. One such investment was the acquisition of the vast oil field at Prudhoe Bay, Alaska. This acquisition represented a good increase in the percentage of oil production in the United States and ensured that the company could increase its production and further its goals and objectives for the United States market. As early as 2001 there were incidents at the facility that the company internally accounted for and management was made aware of the safety concerns that existed.

Before 1932 there was no generalised duty of care in negligence. The tort did exist and was applied in particular situations where the courts had decided that a duty should be owed, eg, road accidents, bailments or dangerous goods. In Donoghue v Stevenson [1932] AC 562, Lord Atkin attempted to lay down a general principle which would cover all the circumstances where the courts had already held that there could be liability for negligence. He said:

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

Claimant (Donoghue) fell ill when she drank a bottle of ginger beer which contained a decomposed snail

In this landmark case, there were two key questions that had to be answered – Firstly how would it be decided what was acceptable practice in the context of the treatment provided and secondly who would decide what was acceptable in matters of informed consent and disclosure of risk. In his direction to the jury, Mcnair J referred to the test of negligence applied by Lord President Clyde in ‘Hunter v Hanley’ – “the true test for establishing negligence in diagnosis or treatment on the part of the doctor is whether he has been proved to be

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.

In a departure from the traditional application of long standing case law, the close connection test was altered. The crucial change was to give rise to vicarious liability if the exchange involved a seamless chain of events . This development came following crucial developments in the Christian Brothers case. Where the vicarious liability relationship was extended to those analogous to employment . The other crucial development arose in Cox. In which Lord Reed extended vicarious liability for a person acting in their own interests. However he stressed the importance of the person acting in the scope of the activities assigned to him by the defendant. The defendant in assigning these duties generates a risk of the tort .