Dan v Ben – potential negligence Dan fell unconscious after knocking his head when the jetty owned by Ben collapsed. The issue is whether or not the defendants’ negligent actions caused the plaintiffs injury. Duty- It was reasonably foreseeable that harm could have resulted as Ben did not satisfy the relevant safety precautions, which Corinna cautioned Ben about. Tabet v Gett [2010] HCA 12 240 CLR 537 is sufficient to establish a duty of care. Breach- Ben must achieve the standard of care for an ‘occupier’ and ‘invitee’ in the Civil Liability Act 1936 (SA) s.19 and s.20. The act states the definitions of an occupier which Ben achieves and premises which a beach fits within. Ben satisfies the required elements in relation to s.20 and in particular …show more content…
Dan v Dr Ego – potential physical harm Dan had an allergic reaction and suffered side effects to the medication prescribed by Dr Ego. The issues is whether it was negligent for Dr Ego to give Dan the medication. Duty- The special relationship between Dr Ego and Dan (Doctor and Patient) is the established duty category (reference in legislation). Breach- Dr Ego failed to meet the standard of care for professionals and his actions would not be widely accepted by other professionals as referenced in the Civil Liability Act 1936 (SA) s.41(1). Additionally, Rogers v Whitaker (1992) 175 CLR 479 recognises that a doctor must uphold their duty to warn a patient of an inherent risk. Causation- The Civil Liability Act 1936 (SA) s.34(1)(a)(b) establishes that the harm must be caused because of the negligence of another person. Dan would not have experienced these damages in the absence of the Dr Ego’s breach and therefore, factual causation is demonstrated. It is complicated to determine the scope of liability because Dan would not have experienced medical negligence if it were not the first tortfeasor Ben. S.35 determines that Dan holds the burden of proving, on the balance of probabilities. In the case of Mahony v J Kruschich (demolitions) Pty Ltd [1985] HCA 37, it is reasonably foreseeable that if someone is injured they will seek a doctor and if that doctor was grossly negligent then then the first tortfeasor is liable for some of the damage caused by the
“In tort law, the doctrine which holds a defendant guilty of negligence without an actual showing that he or she was negligent. Its use is limited in theory to cases in which the cause of the plaintiff's injury was entirely under the control of the defendant, and the injury presumably could have been caused only by negligence”(Burt, M.A., & Skarin, G.D. (2011). In consideration of this, the defendant argues that the second foundation of this principle should be solely based on common knowledge of the situation. Although, there is a experts testimony tartar is no basis in this case , in the experts testimony or anything else, for indicating that the plaintiffs injury resulted from the negligence of the defendant. The court correctly found the defendant not liable under the Res ipsa
She also, failed to monitor and approve all orders. Although Dr. Stevens and Dr. Mercer operated in the same building, and the sign displayed both of their names on the sign, Dr. Stevens is not liable for the patient injury’s. There was no partnership agreement, and they operated separate practices with their own lists of patients. This patient has assumed liability on both parties, but Dr. Mercers is the only person responsible for damages caused.
Medical malpractice cases are difficult for the families who have lost their loved one or have suffered from severe injuries. No one truly wins in complicated court hearings that consist of a team of litigation attorneys for both the defendant and plaintiff(s). During the trial, evidence supporting malpractice allegations have to be presented so that the court can make a decision if the physician was negligent resulting in malpractice, or if the injury was unavoidable due to the circumstances. In these types of tort cases, the physician is usually a defendant on trial trying to prove that he or she is innocent of the medical error, delay of treatment or procedure that caused the injury. The perfect example of being at fault for medical malpractice as a result of delaying a procedure is the case of Waverly family versus John Hopkins Health System Corporation. The victims were not compensated enough for the loss of their child’s normal life. Pozgar (2012) explained….
When evaluating medical malpractice, this can be performed by any healthcare professional. It is easy to classify this to be misdiagnosis, delayed diagnosis, delayed treatment, even not taking the time to evaluate a patient properly. When practicing medicine it is important that all measures be taken when a patient is showing signs of infection or having any adverse reaction to medication. In the case study below this is a prime example of the importance of checking patient progression.
Negligence, as defined in Pearson’s Business Law in Canada, is an unintentional careless act or omission that causes injury to another. Negligence consists of four parts, of which the plaintiff has to prove to be able to have a successful lawsuit and potentially obtain compensation. First there is a duty of care: Who is one responsible for? Secondly there is breach of standard of care: What did the defendant do that was careless? Thirdly there is causation: Did the alleged careless act actually cause the harm? Fourthly there is damage: Did the plaintiff suffer a compensable type of harm as a result of the alleged negligent act? Therefore, the cause of action for Helen Happy’s lawsuit will be negligence, and she will be suing the warden of the Peace River Correctional Centre, attributable to vicarious liability. As well as, there will be a partial defense (shared blame) between the warden and the two employees, Ike Inkster and Melvin Melrose; whom where driving the standard Correction’s van.
Regarding the claim against the physiotherapist, it must be established that the actions of the Community Health team’s actions fell below the Health and Care Professions Council Standards of Conduct Performance and Ethics that governs physiotherapists. Referencing the failure to keep appointments and the Consultant’s statement I believe that the breach of duty test would be
Negligence is a form of tort which evolved some types of loss or damages that occur between parties where one person owes another duty of care. It can also be said as failing to do something that a reasonable person would or would not do which causes another person damages, injury as a result and could have been prevented. Ruth could have claim for compensatory damages for personal injury dislocating her knees which was the result of Keith negligence and breach of duty of care. The plaintiff Ruth has the burden of proof and would need to prove that the defendant, Keith would her duty of care and was careless in failing to do as a reasonable person would do resulting in dislocating knee suffered by the plaintiff. On the balance of probabilities
To make a successful claim for this form of negligence there are four requirements that must be met; establishing a duty of care, proof of that duty of care being in breach, damages (this can include economic loss) and establishing that the beach has caused the damage. If a single one of those requirements are not met or are absent, the case will fail.
In order to critically assess the approach of the courts in allowing damages for pure economic loss in cases of negligence. One must first outline what pure economic loss is and what it consists off. Pure economic loss can be defined as financial loss or damage to one party caused by another party due to their negligence however the negligent act that is carried out is ‘purely’ economic and has no relation to any physical damage caused to any person or property. Numerous cases illustrate pure economic loss and losses that are deemed to be ‘purely economic’ are demonstrated under the Accidents Act 1976.
The Act allows negligence as the sole ground unlike common law which required the claimant to establish ‘fraud’ even if negligence existed. It is believed that the ‘d...
did owe a duty of care to Mrs. Donoghue, in that it was up to them to...
In Blythe v Proprietors of the Birmingham Waterworks Co, Lord Baron Alderson defined negligence as "the omission to do something, which a reasonable man, guided upon those considerations, which ordinarily regulate the conduct of human affairs, would do, or doing something, which a prudent and reasonable man would not do". Once it is established that a duty of care exists, breach of that duty needs to be proven. Breach is an essential element of negligence in determining the standard of care and therefore, potential liability. The standard of care was first established in Blythe v Proprietors of the Birmingham Waterworks Co where liability arises out of negligent conduct and the standard is that of a 'reasonable person'.
In Wilsher v Essex Area Authority [1988], where a premature baby received a poor treatment and was left blind. In court it was argued that there were four possible causes of the child’s blindness and each of them could to how the child became blind and each one could have been the cause of the blinders therefore the defendant could only be held responsible for only one of the causes or perhaps causes of the lead to the blindness of the child but nobody knows who contributed the most in this case therefore it could not be shown that the defendant’s negligence increased the risk of the plaintiff blindness. This demonstrate that despites but for test, the claimant was not able to justify the causation requirement. Similarly, during the case of Bonnington Castings LTD v Wardlaw, it was difficult to determine the cause of the claimant disease because there were two sources, the dust contributed to the disease and it was left for the plaintiff to show that on a balance of probabilities the breach of duty was the cause of his disease or contributed to his injury. Also, in Mchee v National Coal Board, the plaintiff was unsuccessful in proving that the defendant caused his dermatitis and also could not prove that washing facilities was a contributing factor to his dermatitis but the court of lords found out that the defendant was a
Now failure to act on the duty of care is a breach of duty. “The importance of this duty requirement is that it was a question of law to be decided by judges and not juries” (Murphy, J. (2007) Street on torts. 12th ed. Oxford: Oxford University Press, USA). If the claimant wants to succeed in court, then he/she has to prove three things.
Mullender, R & Speirs, A (2000) Negligence, Psychiatric Injury, and the Altruism Principle, Oxford Journal of Legal Studies 20,4, 645