McHale v Watson is decisive authority in the events of children facing liability for negligence. The question resided on whether a child’s age should be applied in determining the test for the standard of care. Counsel for the appellant originally framed the cause of action to be a matter of trespass or intentional assault, however, the trial judge, Windeyer J, found the defendant acted neither intentionally or negligently in throwing the dart. There is no previous authority which addresses the main concerns of the case, and therefore McHale v Watson adopts a large role in the procedures of future legal disputes.
Counsel for the appellant made an application to withdraw the suit of contributory negligence from the jury. They held that contributory
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The standard of care is idealised to suit ethical standards, as opposed to the behaviour and actions of the realistic everyday man. This justifies the issue in accepting a judge’s notion of the standard of care, considering it is diverse according to what each individual justice perceives to be the ethical standard. More so, all justices presented separate tests and reasoning’s in McHale v Watson, and therefore, the standard of care belonging to a child of 12 is ambiguous and variant. The justices, nevertheless, mutually agree that the standard of care is ultimately objective in nature, but a subjective element is necessary to prevent injustices before the law and in society. Even prior to the decision in McHale v Watson, it was noted by justice Macmillan in Glasgow Corp v Muir, that the standard of a reasonable man is ‘in one sense an impersonal test’, whereby it is ‘independent of the idiosyncrasies’ of the individual whose actions are in question; but furthermore, it is also requiring a subjective element – but it is left to the judge to decide what those elements consist of. In McHale v Watson, it was agreed that age is a special circumstance in which the subjective element should apply, and as noted by trial judge, Windeyer J, childhood is not idiosyncrasy, but rather a normal physical stage of development; a statement later …show more content…
Owen J identified age, as well as experience and intelligence, as an appropriate test, however, allowing for this to become ratio for future cases would produce numerous concerns before the law. This is affirmed in the 2008 case of Imbree v McNeilly. Initially, Cook v Cook ruled that inexperience can excuse a defendant from being liable to negligence; however, this was later overruled in Imbree, finding that inexperience can no longer affect the standard of care owed,, and therefore, only in cases of contributory negligence, can it be used for the purposes of assessment. More so, allowing for experience and intelligence to attribute to the standard of care test, would not only raise evidential issues, but also make the test become overwhelmingly subjective – therefore removing the purpose of the objective reasonable person, of which the tort of negligence is based upon. The public will reject the tort of negligence if it produces outcomes which ordinary persons of the public would regard as unreasonable. However, several authorities recognise that while the test should remain wholly objective, infants should in some sense be treated as a separate category, and therefore the words ‘in the circumstance’, which subtly includes intelligence and experience, should fall within the understanding of the ‘reasonable man’. Nevertheless, age currently stands as the
They reasoned that since Barnett didn’t either argue against the dismissal of negligence claim at the time of its dismissal or include the claim in subsequent revisions, she had no support for her claim that the court had erred in dismissing her claim of negligence. The court also ruled that the language of section 3-108(b) of the Tort Immunity Act meant that complete, unconditional immunity was to be offered if supervision was present. As a result of this interpretation, the issue of if the lifeguards had committed willful and wanton misconduct was rendered irrelevant. Since the issues of material fact raised by the appellant weren’t actually issues of material fact, the Supreme Court affirmed the District and Appellate Court’s motion and subsequent affirmation of summary
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 .
The case of 17-month old Emilio Gonzales was seen and heard nation wide. A conflict between the mother and the physician emerged after the physician no longer expected there be an improvement in his health. This led to the decision of discontinuing providing care for the child and requesting the parents find another facility willing to provide such medical care. The main issue of this case revolved around whether the physician’s decision was morally permissible or legally just. Under Kantian Ethics, Children’s Hospital has moral reasoning to terminate treatment for Emilio and thus is morally justified in withdrawing treatment.
Mr McKinnon must have, under the assumption of risk, known that there was a possibility for the risk of injury resulting in paralysis. Over data collected over a period of six years, showed that a total of 12 players in the rugby league code [1997 – 2002] have suffered from spinal injuries (Carmody D, et.al 2005.) This assumes that Alex must have known the possible risks and under the Civil Liability Act 2002, section 5G, “injured persons presumed to be aware of obvious risks.” Thus resulting in the assumption that he knew what could happen in such a high contact sport. Once again, this can be seen in the case Cafest v. Tombleson [2003] NSWCA 210. In this case Julianne Tombleson went roller-skating and broke her right wrist, claiming that she was not properly informed of the risks involved with the activity. However, the court found that there was a myriad of pre-emptive warnings to skaters such as highly visible signs that stated protection gear available for hire and that the rink centre will not be held legally liable to any injuries that may be sustained. This confirms and rectifies the concept of volenti non fit injuria. If the risks are clearly set out and known, one could not claim negligence for compensation, relating to the fact that Alex indisputably would have realised the potential
After a car accident in February of the year 2000, left Luis Jimenez with severe brain damage and physical injuries, conflicts of his medical care led to an eight-year legal battle between Martin Memorial Medical Center and Montejo Gaspar Montejo, his appointed guardian. Due to federal regulations, Martin Memorial Hospital was required to provide critical care to Luis Jimenez who was an illegal immigrant. EMTALA requires hospitals to provide an appropriate medical screening and necessary treatment to anyone who comes into the emergency room. Treatment must be provided regardless of a patient’s ability to pay or citizenship (Canedy, 2002). Hospitals are typically reimbursed
In this essay I will research and provide a timeline of developments to human rights, i will explain the underlying principles of the human rights approach and the importance of adopting human rights to care. After the Second World War ended in the mid 1940’s there became a serious realisation to the importance of human rights. This realisation got the United Nations to establish the Universal Declaration of Human Rights. This Declaration shows the first ever international agreement on the primary principles of human rights. There is a total of thirty basic human rights within the Universal Declaration and these rights apply to every single person in the world. An example of one of the rights everyone has is ‘the
However, they are treated differently by the legal system when they commit a criminal offence. In NSW a child under the age of 10 is regarded as too young to form ‘mensrea’ which is referred to as doli incapax. As a result the Children (Criminal Proceedings) Act 1987(NSW) states that a child cannot be charged with a criminal offence under the legal system if the child is under 10 years. The principle of doli incapax in the criminal justice system is partially effective in giving rights to the children. However, it has raised concerns for the members of society in regards to justice for the victim as well as the society. This is shown in the case of Corey Davis - R v LMW [1999] NSWSC 1128 where a 10 year old boy threw 6 six years old Corey Davis in the water knowing that he could not swim. Corey’s death received great media outrage, especially when the children’s court ruled the offender not guilty of manslaughter due the principle of doli incapax. Nonetheless, the media attention and the negative public reaction towards the offender was perceived as a lack of justice for the society and the victim. therefore, the public pressure caused the Director of Public Prosecution (DPP) to charge the offender with manslaughter This case somewhat reflects the effectiveness of the justice system to an extent of responding to public
Engelhardt Jr., H. Tristram. “Ethical Issues in Aiding the Death of Young Children.” Intervention and Reflection Basic Issues in Medical Ethics. 8th ed. Australia: Thomson Wadsworth, 2008.
This essay will first address the statute used and interpretation of the threshold test by the courts, and then focus on cases involving vulnerable children to assess whether the statute in The Children Act 1989 is sufficient in protecting these children from harm. I will look at the argument in favour of the current approach taken by the courts, and the counter-argument in favour of changing the current approach. The arguments are delicately balanced and the law is always developing, so it will be interesting to see how the Supreme Court resolves this issue in future.
This paper explores the legal, ethical and moral issues of three healthcare colleagues by applying the D-E-C-I-D-E model as a foundation of decision making as found in Thompson, Melia, and Boyd (2006). Issues explored will be those of the actions of registered nurse (RN) John, his fiancé and also registered nurse (RN) Jane and the Director of Nursing (DON) Ms Day. Specific areas for discussion include the five moral frameworks, autonomy, beneficence, Non – maleficence, justice and veracity in relation with each person involved as supported by Arnold and Boggs (2013) and McPherson (2011). An identification and review of the breached code of ethics and the breached code of conduct in reference with the Nursing, Council, and Federation (2008) will be addressed. Lastly a brief discussion on how the three schools of thought deontology, teleology and virtue had effects on each colleague (McPherson, 2011) .
did owe a duty of care to Mrs. Donoghue, in that it was up to them to...
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.
Review the scenario below. Consider the legal principles influencing the likelihood of any successful action against Steve in negligence.
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...
. By reviewing the issue about juvenile crimes and the serious debates around it, it is important to look at all the factors and restrictions involving the cases. For example, due to the fact that a minor is anyone under the age of 18, not much can be done without the parents discretion. Although this can be overruled when a child commits a serious crime or needs extreme care. (). In my opinion, I do think the issue is blown out of proportion due to the fact that I believe if a child commits a crime to a certain extent such as murder or anything equal to that, then they should be put on trial as an adult. Although this should involve some restrictions such as the individual's mental capacity because there are some children who are as smart