The 'But for' Test and 'Balance of Probabilities' Essay

Authors Note: This paper is being submitted on the 18th of March 2013 for the winter semester of Medical Law and Ethics section 05.

He claimed that a new shift system had caused at least one death and one unnecessary operation taking place, and said that he and a small number of consultants were overworked and patient safety and continuity of care were compromised. The claimant had told the Manchester hearing he raised his concerns about the new ‘Consultant of the Day’ system with the trust clinical director Mr Watson and then the trust medical director Mrs Schram; however, he was reprimanded and told not to voice concerns again. The consultant said he was then investigated over a series of ‘malicious, vexatious and frivolous’ allegations and ‘imaginary deaths and complications had been conjured up’ to create a case against him. He believed that the investigation and the process from the beginning was about punishment for raising his clinical concerns, and he argued that the investigation did not examining the veracity’ of the allegations against

There are two defences to an action in negligence: contributory negligence and voluntary assumption of risk. (FoBL, 2005, p83) This case only involves contributory negligence.

It is to be submitted that the proposal of the Law Commission in the 2013 Discussion Paper presents on balance the most fitted approach to non-responsibility defences, since it eradicates the current illogical distinction between ‘insanity’ and ‘automatism’. Under this proposal, the ‘M’Naghten rule’ should be abolished and replaced by a new non-responsibility defence relevant to those cases of ‘total lack of criminal capacity resulting from a recognised medical condition (provided the other criteria of the defence are met) without limiting it to mental disorders’, assuming no culpable fault. The pertinent criminal capacities in this defence are the abilities to make a rational judgment, to comprehend the wrongfulness of a conduct and to have control of one’s body. This general defence would lead to the special verdict ‘not criminally responsible by reason of a recognized medical condition’ and disposal powers may attach. Under the ‘recognised medical condition defence’ the accused would only have an evidential burden and it would be for the prosecution to disprove beyond reasonable doubt that he/she is not criminally liable by reason of a recognised medical condition. Regarding automatism, the common law defence would be abolished and the reformed defence would be

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.

“A factor, by itself, may not be sufficient to cause injury but if, with other factors, it materially contributes to causing injury, it is clearly a cause of injury.”. This quote, stated by Lord Salmon in McGhee v National Coal Board is an example of the difficulty that can arise when determining if a defendant had materially contributed to the plaintiff 's injury when the medical evidence is inconclusive. It is argued that the material contribution test has changed the path of the law and as we will see when analysing both McGhee and Fairchild, it has blurred the distinction between legal and factual causation.

Case Comment: John Michael Malins v Solicitors Regulation Authority [2017] EWHC 835 (Admin) 2017 WL 01339062

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.

Ragnarr, must prove to the court that due to the states negligent actions he will consequently experience economic loss. Causation refers to whether the defendants conduct (or omission), in this case The State Of Victoria, caused the resulting harm or damage. The common law of negligence obliges instigation of causation for the purposefulness of attaching legal accountability. Another element that must be proven is that it is applicable for the scope of the negligent persons liability to extend to the harm so caused (scope of liability ). As it is a case of negligence the onus of proving, on the balance of probabilities, is weighed upon our client, the plaintiff Mr. Ragnarr. Even if the ‘but for’ test is applied to the current situation in the case, the outcome would be that the loss suffered by the plaintiff would have only occurred if the defendant acted negligently, which they did, and therefore if they hadn’t have acted in that way, then our client would not have been publicly humiliated by the State Of Victoria as a result. The court must deliberate whether it is suitable to extend the scope of the defendant negligence to the harm caused to the plaintiff and our client, Mr. Ragnarr. The harm that occurred, or similar harm, must have been foreseeable in order for it to reach within the scope of liability upon the

In this case, the accident is the proximate cause of Mrs. Smith’s injuries and the medical providers are the intervening cause, as their breach of duty exacerbated Mrs. Smith’s injury to the point of permanent disability and disfigurement.

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

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 Spring, Lord Keith rejected liability of employers for references in tort of negligence. One of his arguments was based on the policy grounds that govern the defence of qualified privilege in an action for defamation: while it is of the public interest that some kind of remedy is available for people whose reputation is

The Supreme Court of the United Kingdom’s decision in Mohamud represents a subtle yet fundamental change to the area of vicarious liability. Vicarious liability derives from a combination of legal principles and judicial discretion. It is not the result of a clearly developed, logical legal principle . The moving landscape of vicarious liability, as evidenced in Mohamud, can be attributed largely to the courts desire to protect vulnerable plaintiffs. This has occurred by liberal application of existing legal principles and expansive use of judicial discretion.