Marien V Gardlin Case Study

Ultimately the Jury will need to evaluate whether Joe’s death was caused by complete medical negligence, or if Daredevil Dan’s act was a substantive cause - causation requires that harm must be the result of a culpable act, the result need not be the sole cause of the resulting harm, but it must be more than minimal. In the circumstances it seems highly unlikely to this narrator that legal causation would be raised if this was a real life situation. There are no underlying general principles of causation – Judges consider highly the policy approach as to whether a defendant caused the harm. This is affirmed in the opinion of Lord Bingham in Kennedy. For Legal causation there must be no novus actus interveniens – a free, deliberate and informed intervention by a third party that b... ... middle of paper ... ...type of blood via transfusion and the error of prescription are independent of Joe’s injuries caused by Daredevil Dan.

This decision comes from negative agency. On the other hand, the later choice is decide to allow to kill five, but save one. According to Quinn, “negative agency would include the foreseeably harmful inactions that could not or need not have been avoided” (Quinn 292). The purpose of this choice is not to kill the life of one. The consequence that the lives of five is killed also seems to the failure to save them.

The person whose conduct we set up as a standard is not the extraordinarily cautious individual, nor the exceptionally skillful one, but a person of reasonable and ordinary prudence.One test that is helpful in determining whether or not a person was negligent is to ask and answer the question whether or not, if a person of ordinary prudence had been in the same situation and possessed of the same knowledge, he or she would have foreseen or anticipated that someone might have been injured by or as a result of his or her action or inaction. If the answer to that question is "yes", and if the action or inaction reasonably could have been avoided, then not to avoid it would be negligence. Q. HOW CAUTIOUS MUST SOMEONE BE? A.

The policeman fired back and the girl was hit by 3 bullets and killed. The defendant was found guilty of her manslaughter but appealed against this, arguing that the judge had misdirected the jury by stating that he had been the cause of the victim’s death, not the police officers that fired th... ... middle of paper ... ...ct in a way that is harmful to themselves or to others. In some cases (coercion, deceit) the persons held responsible would naturally be said to have caused the persons influenced to act as they did, while in others they would not, though the weaker interpersonal relationship is in some respects analogous to more plainly causal relationships. Failing to help or provide opportunities to others by advising, warning, informing or rescuing them or supplying them with agreed goods and services are other grounds of responsibility for negative agency that, again, are at least analogous to causal relationships. The existence of this wide spectrum of causal or near-causal grounds of responsibility recognized in law and morality raises the question whether any uniform theory of causation is capable of accounting for all of them.

The underlying liability in negligence, however, is limited because duty of care must be justified before the courts. Acts of negligence could result in many different forms of harm or injury. Under the common law, acts of negligence could result in physical injury, psychological harm or economic loss. These outcomes equate to a given level of liability by the defendant to the claimant. In order to hold the defendant liable for negligence, however, the claimant has to meet the court’s threshold as far as justifying duty of care is concerned.

In cases involving negligence, the neighbour principal, established in Donoghue v Stevenson (1932) is used to determine whether or not the defendant was at fault. This involves looking at whether there a duty of care that was breached, causing the damage to occur, as it was deemed unfair to expect the individual to be liable for people to whom a duty of care cannot be found. The defendant will not be found to be at fault if they have taken reasonable steps to avoid damage occ... ... middle of paper ... ... without the “help” of the police. As with Strict Liability crimes, the ordinary person would not see the defendant as being at fault here, and may view the use of fault in this area of the law as being unfair. The issue of fault is even present in defences, in that aggravating and mitigating factors can be used to lessen the amount of fault which the defendant is thought of having.

This supports the view that negligence implies culpability but Michael Moore presents a good argument where he suggests that a negligent act does not manifest a careless disposition. It may just be an example of an accident or forgetfulness where it is hard not to take risks that may cause harm to others . Therefore, it can be said that negligence should never be enough due to the fact

Duty, breach, causation and damage are the elements that together make up any successful negligence claim. If the claimant wants to win in a negligence action, some certain points must be proven such as that the defendant owed them a duty of care; that the defendant was in breach of that duty; and that the claimant suffered damage caused by the breach of duty, which was not too remote. In negligence, it has to be proven by the claimant that there has been some kind of loss or injury as a result of the defendant’s negligence. The elements of liability in the tort of negligence are the defendant must owe the plaintiff a duty of care. A duty of care is a legal obligation to take care to avoid causin... ... middle of paper ... ...lness and fails to seek medical advice, then they will have constructive knowledge.

Despite, the Ipp Report providing people with a better understanding of the Act, some of the recommendations frustrate what has been said in case law. Recent High Court decisions have been leaning towards an increasingly strict application of the “but for” test. “The plaintiff must provide direct evidence establishing that, on the balance of probabilities, the harm would not have occurred “but” for the defendant’s negligence”. The Ipp report panel made no recommendations to overturn the ‘but for’ test in fact it believes that it is a “necessary condition”. Clearly, the “but for” approach plays an important role as a “threshold” test, but it should not be applied as the only test for factual causation, because it sometimes yields unacceptable results or results that do not accord with common sense.

Negligence looks to see whether the person had a duty to act with care. It emphasizes the need for people to act reasonably in society. This is important because accidents will happen. Negligence helps the law establish whether these accidents could have been avoided, if there was a breach of duty to act reasonably, and if that breach was the cause of injury to that person. By focusing on the conduct rather than the intent of the defendant, the tort of negligence reflects society’s desire to