Tort Law and Negligence

Introduction

A tort is regarded as an act or rather, an omission, aside from a breach of a contract that results into an injury or harm imposed on another. As such, it considered to be a civil wrong that forces courts to impose liability. Tort law as a civil law applies in an instance where a contract cannot be established and ‘breach of duty of care’ is often derived from the tort of negligence (Henderson Jr, 2017). Basically, a tort of negligence considers that an individual accountable for doing a wrong is careless and as such, should be considered to be responsible for the causes of his carelessness to another. In this regard, this paper argues that in order to establish a successful negligence case, the following factors ought to be proved. First, there must be proof that duty is owed, secondly, there must be proof that the said duty was breached and finally, there must be proof that the breach of duty resulted directly into a causation. It is significant to note that failure to provide proof of any of the mentioned elements implies that the negligence lawsuit is deficit (Herron et al., 2016). This paper will expound on the aforementioned elements of tort law, aside providing a brief history on tort of negligence.

Brief history

Tort law dates back Norman Conquest. Notably, before French William’s 1066 England conquest, England’s legal system happened to be haphazard and was conducted on the basis of case-by-case. However, after the 1066, various eminent judges were significantly delegated for them to travel to a given region, to absorb the law that were bestowed in those villages and which had developed over the past 2 centuries. Having benefitted from this information, they noted and also implemented precepts that they deemed to be fair-minded into their court findings (Keating, 2017). With time, they were often referred to and the cases are now what are referred to as legal precedents, inclusive of tort law. Notably, the sessions when the judges conducted various trials were dubbed (assizes) or rather, in the present time, they are referred to as “sittings.” Once established, it is evident that the precedents were applied equally to all societal members, and this brought forth the term “common law.” Clearly, the common law established duties in negligence, as well as trespass, which handles disputes between individuals. Significant to note, is the fact that tort law applies in healthcare, as it seeks to compensate various victims of certain inactions/inactions, whilst putting into consideration, breach of a duty, which consequently causes damages. In this regard, healthcare providers as well as facilities are often sued when they fail in meeting certain standards of care (Jacob et al., 2018).

Duty owed

Duty poses as the first element of tort of negligence. It is an obligation to choose doing or not doing something that would harm another. Clearly, there may be a possibility of demonstrating that harm has been severely suffered due to carelessness. However, there may also be no possibility of establishing liability unless a claimant is in a position of showing that he or she owed a ‘duty of care.’ The bottom line is that tort of negligence assesses the choices of human to engage in harmful conducts as either proper or improper (Fulbrook, 2017). This is because choices are regarded as improper when they breach a pre-existing obligation to others, to avoid and also repair carelessly inflicted injury or harm to others whilst duty gives a significant definitional coherence, based on the negligence inquiry. This forms a foundational element in determining a negligence claim, as duty provides a forefront towards the recovery of the principal action of causation in tort. Clearly, all negligence claims should pass through the duty portal, which bound the tort recovery scope for accidental harm. However, once a duty is significantly proven, then breach can be established (Hurwitz, 2018).

In Bourhill v young (1943) where Lord Russell noted that a man cannot be liable for negligence in the air, owing to the fact that liability can only arise when ‘duty to care’ has been established and also where failure to conduct duty has resulted a damage. In this regard, he further noted that the plaintiff was not supposed to recover any negligence as the injury she had suffered or rather, the way it had been caused was clearly not foreseeable. This case posed an unsuccessful claim based on insufficient proximity. On the contrary, the case of donoghue v stevenson (1932) presented a successful claim based on neighbor principle. Lord Atkin criticized Brett Mr’s test in the case of Heaven v Pender as to being too broad in its impact and as such, he drew measures upon it and affirmed that duty to neighbors had been established. He thus, went further and defined as people that are closely and also directly affected by actions presented to them and as such it is paramount having them in contemplation. Moreover, in the case of Sidaway v Bethlem Royal Hospital (1985), it was also clear that healthcare professions are obligated of having an overriding duty of care to their patients. In this case, Lord Scarman noted that bolam test ought to be applied and that a doctor has a duty of care to his patients when he is a physician, general practitioner or even a consulting surgeon. He stressed that they owe patients their duty of care and as such, damage poses as a gist of their negligence actions. Clearly, this poses a vicarious liability, whereby, a tort liability is significantly imposed on a party, whilst related to the other negligent party that did not conduct the negligent act. In this regard, it is worth noting that vicarious liability arises where an employer-employee relationship exists and in such a scenario, it is the employers that are held liable, even for their employee’s actions. Vicarious liability has been established in the UK law, in order to render employers strictly liable for all the torts committed by their employees in the employment course.

Breach of duty

Breach of duty is the second element of tort of negligence. It is the misconduct itself, or rather, the defendant’s omission. Notably, this element provides an implication the pre-existence of a proper behavior standard that aids in avoiding the imposition of undue harm, to other individuals and their property and this still circles back to duty (Goldberg & Zipursky, 2015). It is significant to take note of the fact that in everyday life, duty to care is often judged against the behavior of a reasonable individual. As such, when a person or even a company is obligated to have a duty of care towards another and blatantly fails to fulfill the standard of care, then breach of duty is imposed. Moreover, a plaintiff has to prove that the action or omission done by the defendant caused him or her to be exposed to risk of harm or injury. In other words, the plaintiff must provide proof that the defendant failed towards meeting their obligation to them and as such, puts them in the harm’s way (Luntz et al., 2017). Overall, in order to establish a breach of duty, duty owed must be shown.

Significant to note, professional negligence is often judged against the bolam test and this is clear when putting into consideration, the case of Bolam v Friern Hospital (1957). In this case, Lord McNair noted that a doctor ought not to be held liable for negligence in an instance where he acted according to a practice that is accepted as to be proper by a responsible institution of medical men that are skilled in that specific art. Notably, this test was significantly approved in the case of Sidaway v Bethlem Royal Hospital (1985), and also in the case of Whitehouse v Jordan (1981). Notably, this however, does not imply that medical opinion is regarded as conclusive of such an issue. In an instance where the court discovers that medical opinion regarding the question is totally illogical, the doctor can then be found to be negligent despite having such an opinion. This provides the precedence of ordinarily skilled professionals.

Moreover, in the case of Maynard v West Midlands Regional Health Authority [1985], in providing evidence to whatever constitutes towards professional standards, it is worth noting that Lord Scarman noted that the preference of a judge on one body of great professional opinion to another, who is also professionally distinguished, cannot be sufficient enough in establishing negligence. He stressed that negligence cannot be established on a practitioner whose actions were in accordance to the seal of approval of others whose opinions were truthfully expressed, and also honestly held but not preferred. Additionally, whilst putting into consideration the case of Bolitho v. City and Hackney Health Authority [1996], the house of the Lords dismissed the case and noted that the defendant’s health authority did not fail in taking reasonable care. This is owing to the fact that the claimant was not in a position to provide proof that the doctor intubated and experts had varied opinions, because intubation entails many risks and alternative actions could be taken.

Causation

Causation is the third element of tort of negligence. Notably, there exist two negligent causations, including the proximate cause and the actual cause. Prior to negligence law assigning responsibility to the defendant upon inflicting him or her harm, it is clear that it demand that the plaintiff should be able to establish a significant cause and effect relationship between the harm and the negligent act. It is worth noting that causation thereby, provides an element of central negligence, which links the wrongs of the defendant to the harm inflicted on the plaintiff (Hodgson, 2016). Significant to note, is the fact that many incidents that results into harm on the plaintiff are often attributed due to negligence. However, many others also result from bad luck or even the carelessness of the behaviors of the victims. Notably, negligence law enables an accident victim to fully recover damages, only in an instance where the defendant was partially or fully to blame for having caused the accident. Clearly, the aforementioned explanation implies that a breach of duty must have resulted into or caused harm (causation) and this ought to be shown on the probability balance. Causation must be shown (He et al., 2016).

In the case of Cassidy v ministry of health (1951), the appeal court purposed to reverse the decision that Streatfeild J. had made and thus, stressed that the Res Ipsa Loquitor doctrine was clearly applicable in the case. In this regard, he noted that the doctor happened to be a servant of the Ministry and the hospital and as such, he was vicarious liable, owing to the fact that the doctor had been integrated in the health institution. In line with this, Denning Li noted that the reason as to why employers should be liable in such cases in not simply because they are able to control the manner in which work is done, they employ staff that do not have sufficient knowledge, yet they have the final sanction for good conduct, as well as power of dismissal. Moreover, in the case of Bolitho v. City and Hackney Health Authority [1996], it is evident that the house dismissed the case of the claimant as the defendant’s health authority failed in taking reasonable care. This is owing to the fact that the claimant was not in a position to provide proof that the doctor intubated and experts had varied opinions, because intubation entails many risks and alternative actions could be taken. Finally, in the case of Wilsher v Essex Area Health Authority [1988], Lord Nicolas Browne-Wilkinson held that despite the presented facts, other factors could have been involved. He noted that there existed a breach of duty as the whole scenario involved a trainee doctor, owing to the fact that he actually did not behave like a reasonable qualified doctor.

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Conclusion

Based on the initial question presented for this assignment, which requires the factors that must be established in order to successfully prove a ‘breach of duty of care’ in tort law, it is clear that there must be proof that duty is owed. Secondly, there must be proof that the said duty was breached and finally, there must be proof that the breach of duty resulted directly into a causation. In respect to the title, this essay proves that failure to provide proof of any of the mentioned elements implies that the negligence lawsuit is deficit.

References

Books/journals

• Fulbrook, J. (2017). Outdoor activities, negligence and the law. Routledge.
• Goldberg, J. C., & Zipursky, B. C. (2015). The Supreme Court's Stealth Return to the Common Law of Torts. DePaul L. Rev., 65, 433.
• He, Q., Feng, J. L., & Huang, W. Y. (2016, August). Law of Negligence: Duty of Care, Standard of Care, and the Notion of Personal Responsibility. In 2016 International Conference on Management Science and Management Innovation. Atlantis Press.
• Henderson Jr, J. A. (2017). Learned Hand's Paradox: An Essay on Custom in Negligence Law. Calif. L. Rev., 105, 165.
• Herron, D. J., Powell, L., & Silvaggio, E. L. (2016). The Evolution Of Foreseeability In The Common Law Of Tort. Ne. J. Legal Stud., 35, 1.
• Hodgson, D. (2016). The law of intervening causation. Routledge.
• Hurwitz, B. (2018). Clinical Guidelines and the Law: Negligence, Discretion, and Judgment. CRC Press.
• Jacob, A., Klement, A., & Procaccia, Y. (2018). In-Kind Transfers and the Law of Torts. The Journal of Legal Studies, 47(1), 181-207.
• Keating, G. C. (2017). Response to Fox: Impaired Conditions, Frustrated Expectations, and the Law of Torts. Colum. L. Rev. Online, 117, 212.
• Luntz, H., Hambly, D., Burns, K., Dietrich, J., Foster, N., Grant, G., & Harder, S. (2017). Torts: cases and commentary. LexisNexis Butterworths.

Cases

• Bolam v Friern Hospital Management Committee [1957] 1 WLR 583
• Bolitho v. City and Hackney Health Authority [1996] 4 All ER 771
• Bourhill v Young [1943] AC 92
• Cassidy v Ministry of Health [1951] 2 KB 343
• Donoghue v Stevenson [1932] UKHL 100
• Maynard v. West Midlands Regional Health Authority [1985] 1 All ER 635
• Sidaway v. Board of Governors of the Bethlem Royal Hospital [1985] AC 871
• Whitehouse v. Jordan [1981] 1 All ER 267
• Wilsher v Essex Area Health Authority [1988] AC 1074