Tort Law of Negligence Essay

A health care provider must understand many aspects of statutory duty. Duty is “a legal obligation imposed on one to conform to a recognized standard of care to safe guard the rights of others”. The standard of care is usually related to medical malpractice cases. Standard of care is defined as “the caution and prudence that a reasonable person would exercise under the circumstances or by appropriate authority for such situations”. This is mainly of importance because all physicians are expected to perform within the guidelines of this duty, and this standard or care changes depending on the circumstances. “Once the duty has been established, the plaintiff must show that it was breached by presenting evidence of the facts of the case and testimony from expert witnesses regarding whether the standard was met”(Showalter, 2014 p 139). Negligence results in the failure to meet this standard of care, and the jury usually decides if the defendant is guilty of committing a negligent act. Causation is an aspect of negligence. The defendant could be held liable for negligence if the act was considered to be foreseeable, and if the injury occurred from a breach of duty.

The tort law section that falls into this case is negligence. Negligence is made up of three elements which determine negligence and duty of care is owed in this case State of Victoria v Bryar [1970] 44 ALJR 174.

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).

Art and Bill were leaving work one afternoon when they were approached by Charlie, who was

The worst cases are usually caused by larger vehicles. If there is a commercial truck accident, or a bus accident, or a train accident, the severity of the injury is likely to be higher and the need for a lawyer is greater.

Legal systems are critical to the functionality of any given society. In particular, issues of duty and responsibility are fundamental to address especially when one party causes harm or injury to another. In this respect, the concept of duty of care and its connection to negligence serve a key role in the society. Tort law provides for legal processes following acts of negligence that exhibit duty of care. The underlying liability in negligence, however, is limited because duty of care must be justified before the courts.

This paper will discuss the difference between negligence, gross negligence, and malpractice. Based on this information, the author will provide a position statement along with a rational for his decision. This position statement will indicate whether the case presented in the Neighborhood’s newspaper article, entitled “Amputation Mishap; Negligence”, presents a case of negligence, gross negligence, or malpractice. The importance of documentation and its correlation to potential negligence will also be presented. The ethical principles that would guide my practice if I were the nurse in the news article’s situation will be discussed. Examples of how the article case would be

Following the case R v Cunningham [1957] 2 QB 396, reckless was put into question if the defendant foresee the harm that in fact occurred, might occur from his actions, but continue regardless of the risk. There are two different types of tests for reckless, subjective test and objective test. The difficulty with a subjective test is that it is based entirely on the defendant's state of mind and it is for the prosecution to prove that the defendant did anticipate the potential of harm. Negligence is consequences caused by the actions of a person that fell below the standard of a reasonable person. Negligence plays a minor role in criminal liability.

The tort of negligence is the most widely used in law and therefore arguably the most important. The scope of negligence covers such a range of factual situations that establishing a set of rules for finding

Negligence is defined as the failure to exercise reasonable care to avoid injuring others or the property belonging to others. This would be if somebody does not exercise the amount of care that a reasonable careful person would use under the circumstances or somebody does something that a reasonably careful person would not do under the circumstances. Fault is essential in a negligence tort and is determined by basic elements. In negligence action there

The issue is whether the defendant owed a duty of care to a person in the position of the plaintiff – i.e., that they belong to the class of person who the defendant should have been aware of when doing the culpable act.

According to law, tort occurs when a person fails to observe duty imposed on one by law, to ensure there is no injury to a determinate person. In most cases, the remedies for a tort are in the form of unliquidated damages for instance different amounts of compensation, which are determined by the courts of law. The law seeks to compensate the aggrieved party, unlike the criminal cases where the offenders are punished according to law. However, certain cases in tort fall both in the civil and criminal law brackets. Examples include assault and battery. The tort of negligence is addressed in this article, because of its influence compared to the other torts of law. The liability attracted by negligence comes from a basis of duty to practice reasonable care (Geistfeld, 2011, pg 144).

The tort of negligence is the most important area of modern tort. It is the main tort of concern to business ventures (O’Toole, 2014). Its major aim is to compensate the claimant. It is a breach of a duty that defendant owes to the plaintiff, resulting in damage to the claimant. It is not related to a particular act but with a way of acting and is thus harder to define.

Negligence based on the five components that would support a strong negligence case in the courts

Prior to this, “fraudulent misstatement” or similar would have been required as a material fact when using the “…often quoted and variously explained” case as Lord Atkin stated when referring to the comments of Parke B .