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negligence evaluation (duty and breach) - Coggle Diagram
negligence evaluation (duty and breach)
the purpose of the duty is to allow the possibility of legal liability being imposed - it establishes the range of persons, relationships and interests that should be legally protected from negligently inflicted harm
deciding whether a duty exists is an effective way of filtering negligence claims before issues of breach, causation and the amount of damages are considered, and this may help to reduce the number of claims brought to court
it is fair that a defendant is judged against what is common practice and the knowledge of the time, especially in medical or scientific areas, where developments and changes in practice can take place in a short time
Roe v Minister of Health - not fair for health authority to be liable for the contamination of a glass test tube if the reason for it was not known when the injection was administered - of course lessons would have been learned, as with any medical procedure, so that the same mistake should not have occurred in the later years
doctors treating Covid-19 patients in 2020 when the virus first came into light should be treated legally according to the knowledge available at the time - lessons were quickly learned during the first wave of infection in the spring, and procedures were developed for treating patients in the second wave during the autumn of that year
Caparo v Dickman - it was thought necessary to apply the three stage test in every case to decide whether a duty existed - there are criticisms to this test because:
there is an overlap between the tests of reasonable foreseeability required for a duty of care and for remoteness of damage
the proximity test has never been fully established to show exactly who falls within a proximity of relationship - but by not strictly defining such relationships, it does mean that new situations can always be developed and, as Lord Macmillan said in Donoghue v Stevenson, "categories of negligence are never closed"
three-stage test overall considered to lack clarity, making it difficult for lawyers to advise their clients whether to take a claim, and for judges deciding cases in court
the fair, just and reasonable test is vague, and it cannot be predicted when a judge will find it satisfied or not
the same principals apply to professionals - the standard of care is not reduced if a professional lacks experience - a junior doctor must exercise the same standard of care and skill as an experienced doctor to ensure the safety of patients
it is fair that there should be no liability if a risk has to be taken when the benefit to society is greater than the potential harm
Watt v Hertfordshire County Council and Day v High Performance Sports - it was essential for the defendants to act quickly
in emergency situations, it is possible that corners will be cut, and procedures overlooked as speed is of the essence - it would not be fair to penalise a defendant in this situation if the life of an accident victim is at stake
allowing the defendant's certain characteristics to be considered allows the law to be applied fairly to the particular defendant (breach)
the law does not impose a duty of care for a person to act to prevent foreseeable harm - it only imposes a duty where a person has assumed certain responsibility and created or adopted a risk of harm to others
causing physical injury and damage to property are normally within the scope of a duty of care - financial or other losses not directly related to physical harm may not be within its scope
allowing individual characteristics of the claimant to be taken into account offers more vulnerable claimants greater protection
Nettleship v Weston - it would have been unfair to Mrs Weston to have treated her in the same way as an experienced driver as she was on her third lesson - however, it could be said that there was a policy reason for the decision of this case as every driver, experienced or inexperienced should not be a reason for insurance company to pay out
on the other hand, in Paris v Stepney BC. it was cheap and straightforward for the defendant to provide the claimant with goggles or some type of protective equipment, it was known that he was vulnerable and needed protection
considering the size of risk and practicality of eliminating it means in certain cases, that avoiding risk is not onerous for the defendant
Bolton v Stone - considered that the cricket club did everything they could to prevent the small chance of risk to protect passers-by - obviously this is unfair on the claimant as she was left without compensation for her injuries - attitudes have changed this decision as nowadays the club would be liable as it is considered that passers-by should receive greater protection than the claimant here received
Haley v London Electricity Board - greater protections should have been provided for blind pedestrians
with greater emphasis on health and safety, working sites now have more barriers to protect all passers-by from injury - courts will also consider whether all appropriate precautions have been taken by a defendant and balance this against the cost and effort of taking those precautions
Latimer v AEC - considered reasonable for factory to spread sawdust over a previously flooded factory in order that production could restart - with greater emphasis on health and safety, employers would now be required to take greater precautions to protect their workers in the workplace - this can be seen with all the requirements on employers to protect employees in the Covid-19 pandemic
on the other hand, what is reasonable is an objective question which could operate unfairly against a defendant - the law does not take account of a defendant's actual experience, just the standard of skill that is expected at that level - a claim may be defeated if a defendant's actions are considered reasonable even if others in the same profession have differing opinions about the actions taken
for many years, 'common practice' as set out in Bolam v Friern Barnet Hospital allowed professionals to set their own acceptable standards, and opinions within that profession - this approach mean that claims would be easier to defeat and marginal or experimental practice could be deemed acceptable if some doctors approved of it
this rest has been modified for the giving consent by the decision in Montgomery v Lanarkshire Health Board - as a result of this case, a doctor is under a duty to take reasonable care to ensure that a patient is aware of any material risks involved in any recommended treatment, and of any reasonable alternative or variant treatments