In tort law there is negligence and within this there is the duty of
care element, which helps to decide if compensation should be
emplaced. The concept of negligence is a difficult one and has been
broken into three separate parts:
· Duty of care owed by the defendant to the claimant
· Breach of that duty of care
· Damage caused to the claimant as a result of the defendant's breach
in duty of care.
All three parts have to be present before negligence can be proved.
One requirement for proving the tort of negligence is that a duty of
care exists between the claimant and the defendant.
In past cases a decision on whether a duty of care was present in a
case was decided within the duty of care "neighbour test" which was
created by Lord Atkins this was if by using common sense the defendant
could see that an action or omission could lead to the harm of another
person, then a duty of care would be present. However this theory was
updated and modernised into the three-part test, which consists of
three questions. Firstly was the damage foreseeable? Was there
sufficient proximity between the claimant and defendant? And finally
is it fair and just to create a duty of care between the claimant and
defendant?
When looking at the case given I have decided to use the three- part
test to show whether Adam owed a duty of care to Callum.
Firstly was the damage foreseeable?
Adam knew that the substances and equipment he was using on the garden
were dangerous and had already verbally warned Callum to keep away
from the area to prevent injury. Adam then left the treated area
unattended and open for anybody to walk on. Which resulted in Callum
being severely burned by the chemicals. The question that the law
would ask is did the defendant use common sense? I feel the answer to
this question is no because he should have taken more severe actions
to make sure that the safety of the child and others was maintained,
The appeal was heard in The NSW Supreme Court, Court of Appeal. The appellant appealed the issue of “blameless accidents” therefore providing new evidence, with the view that the preceding judge made an error recognising the content and scope of duty of care. He also noted the breach of duty of care and causation .
In the Kamloops v. Nielson case, a house being built did not pass the inspection by the city and construction was stopped, however the builder ignored the requests and continued to build the home without passing the necessary requirements for safety. The inspector also chose not to follow-up on the builder and allowed him to build the house without proper approval. The house was then sold to a couple that was unaware of the history of the home, and once problems arose with the foundation, they sued the municipality and the vendor. Similar to the Anns v. Merton case, this case questioned whether duty of care could be expanded to municipalities, and the presiding judge used the Anns test in determining duty of care.
On the morning of May 17th, 2005, Nola Walker was involved in a two-car collision. Police and Ambulance were dispatched and arrive on scene at the intersection of Kenny and Fernley Street. Ambulance conducted various assessments on Ms. Walker which revealed no major injuries and normal vital signs. Mrs walker denied further medical investigation and denied hospital treatment. Later on, Queensland police conducted a roadside breath test that returned a positive reading, police then escorted Ms. Walker to the cairns police station. Ms. Walker was found to be unconscious, without a pulse and not breathing. An ambulance was called but attempts to revive her failed (Coroner’s Inquest, Walker 2007). The standard of Legal and ethical obligation appeared by paramedics required for this situation are flawed and require further examination to conclude whether commitments of autonomy, beneficence, non-maleficence and justice were accomplished.
Tort, one of the crucial subjects of study when analyzing common law jurisdictions. Tort, is an action which causes another person or party to suffer harm or loss []. The person who has committed a tortious act is called the tortfeasor while the person who suffered harm or loss from such act is called the injured party or the victim. Although crimes may be torts, torts may not be crimes [] simply because a tort may not have broken a law. In fact, one must understand that the key idea of tort is not to punish the tortfeasor(s) but rather to compensate the victim(s).
Thank you for contacting the Ethics Committee regarding Mrs. Mitsue Takahashi’s healthcare plans. As you are aware, 83 year old Mrs. Takahashi was recently admitted to the hospital immediately following a stroke. Through looking at her past medical history and running various tests, it was apparent that she suffers from several serious medical complications. Notably, she suffers from dementia which makes it impossible for her to make autonomous decisions concerning her healthcare. Despite poor prognoses from neurology, cardiology, and psychiatry consultations, the patient’s two grandchildren disagree over the next step in their grandmother’s healthcare. You have recommended to the family to have a DNR order written, withhold aggressive cardiac
When looking at the facts, there was care provided, because care was provided the strike to cause serious affliction on the inmate was denied.
...d, ‘so far as the threshold conditions are concerned, the factor which seems to me to outweigh all others is the prospect than an unidentified, and unidentifiable, carer may inflict further injury on a child he or she has already severely damaged’. This approach was later applied in Merton LBC v K .
My colleague and I received an emergency call to reports of a female on the ground. Once on scene an intoxicated male stated that his wife is under investigation for “passing out episodes”. She was lying supine on the kitchen floor and did not respond to A.V.P.U. I measured and inserted a nasopharyngeal airway which was initially accepted by my patient. She then regained consciousness and stated, “Oh it’s happened again has it?” I removed the airway and asked my colleague to complete base line observations and ECG which were all within the normal range. During history taking my patient stated that she did not wish to travel to hospital. However each time my patient stood up she collapsed and we would have to intervene to protect her safety and dignity, whilst also trying to ascertain what was going on. During the unresponsive episodes we returned the patient to the stretcher where she spontaneously recovered and refused hospital treatment. I completed my patient report form to reflect the patient's decision and highlighted my concerns. The patient’s intoxicated husband then carried his wife back into the house.
Patients seek medical attention from the nursing homes. There nursing homes get a large amount of financial aid on behalf of the government. The financial assistance is given in order to ensure that all the necessary health care facilities are available at the nursing homes. There are few fraud cases that have seemed to occur in the nursing homes. One of the fraud cases that is becoming very common in nursing homes is that the patients are charged wrong amounts for the services that they acquire from the nursing home. The patient generally comes with some disease to seek medical attention. The nursing home raises fraud cases by advising unnecessary tests and procedures to be done on the patients. These tests or procedures may not be required for the patient. As the patient is limited in knowledge, the tests and procedures are done on the patient while charging the patient with a heavy amount of bill. (LLP, 2016) The nursing homes does not cater the specific problems that ha been raised by the patient rather they start to encounter on more details that are unnecessary and not even needed by the patient. The case is about a nursing home in Washington that charges heavy amounts to the patient for unnecessary treatments and procedures. (PEAR,
This essay focuses on intentional tort, which includes trespass to person consisting of battery, assault and false imprisonment, which is actionable per se. It also examines protection from harassment act. The essay commences with a brief description of assault, battery and false imprisonment. It goes further advising the concerned parties on the right to claim they have in tort law and the development of the law over the years, with the aid of case law, principles and statutes.
There is a strict distinction between acts and omissions in tort of negligence. “A person is often not bound to take positive action unless they have agreed to do so, and have been paid for doing so.” (Cane.2009; 73) The rule is a settled one and allows some exceptions only in extreme circumstances. The core idea can be summarized in “why pick on me” argument. This attitude was spectacularly demonstrated in a notoriously known psychological experiment “The Bystander effect” (Latané & Darley. 1968; 377-383). Through practical scenarios, psychologists have found that bystanders are more reluctant to intervene in emergency situations as the size of the group increases. Such acts of omission are hardly justifiable in moral sense, but find some legal support. “A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them.” (L Esher Lievre v Gould [1893] 1 Q.B. 497) Definitely, when there is no sufficient proximity between the parties, a legal duty to take care cannot be lawfully exonerated and imposed, as illustrated in Palmer v Tees Health Authority [1999] All ER (D) 722). If it could, individuals would have been in the permanent state of over- responsibility for others, neglecting their own needs. Policy considerations in omission cases are not inspired by the parable of Good Samaritan ideas. Judges do favour individualism as it “permits the avoidance of vulnerability and requires self-sufficiency. “ (Hoffmaster.2006; 36)
Our Common Law system consists in the applying to new combinations of circumstances those rules of law which we derive from legal principles and judicial precedents; and for the sake of attaining uniformity, consistency, and certainty, we mush apply those rules, where they are not plainly unreasonable and inconvenient, to all cases which arise; and we are not at liberty to reject them, and to abandon all analogy to them, in those to which they have not yet been judicially applied, because we think that the rules are not as convenient and reasonable as we ourselves could have devised. It appears to me to be of great importance to keep this principle of decision steadily in view, not merely for the determination of the particular case, but for the interests of law as a science.31
Civil Law is a branch of law that matters itself with disputes that involve private parties, or negligent acts that cause harm to others. This is in contrast to criminal law which is invoked for the public purpose. Under civil law, there are remedial awards unlike in criminal law which is punitive in nature. These remedies can either be under tort or contract law.
According to the previous statement, she utilized care ethics to justify the decision she made because she took into
ABSOLUTE LIABILTY TO DUTY OF REASONABLE CARE: EVOLUTION OF THE LIABILITY OF BAILEE IN COMMON LAW