That the negligence is a relatively new legal concept is evident in that it was in 1883 when the foundation of negligence law was laid in Heaven v Pender (1,2), and only as late as in 1932 were all of its essential components came into definitive and widely acceptable shape in decision of the famous case of Donoghue v Stevenson (2, 3). Ever since then, the legal responsibilities embedded in and the scope and categories of negligence have been so constantly evolving and being expanded, that it is hardly to be overlooked that its relevancy and application to medical malpractice have assumed a significant role in modern medico-legal issues and centred on the debate. Nevertheless, it is beyond dispute that the progression of conception of medical negligence and expansion of corresponding legal responsibility have always been intimately intertwined with and subject to the transforming interaction of public policy and values, social conditions and sentiment, and community expectations. Lack of precise legal definition as contract or property and fraught with subjective terminology as reasonability, rationality and responsibility, negligence law (4) inevitably depends on interpretation on every constituent factor, rendering it prone to influential force of variable, even subtle, contemporary social and political values, change of which, resulted from novel circumstances as social development and technology advance, gives rise to the uncertainty and changes to the negligence law since it emergence (5).
Back to the 19th century, legal liability was restricted to actions, or actus reus, causing “direct and immediate injury to the person or damage to property as in a case of trespass”. (2) Beyond such liable action, most of damage raised u...
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...vers R. Litigation and the medical indemnity crisis. J Law Med. 2004 Nov;12(2):178-87.
40. Kessler DP, Summerton N, Graham JR. Effects of the medical liability system in Australia, the UK, and the USA. Lancet. 2006 Jul 15;368(9531):240-6.
41. Ipp DA, Australia. Dept. of the T. Review of the law of negligence: final report. Canberra: Commonwealth of Australia; 2002.
42. Derrington HD. Theory of negligence advanced in the High Court of Australia. The Australian Law Journal. 2004;78:595-611.
43. Sullivan v Moody (2001) 207 CLR 562
44. Kalokerinos v Burnet (1996) unreported, NSWCA, BC9600037.
45. Young v Central Aboriginal Congress Inc [2008] NTSC 47.
46. Millenson ML. Pushing the profession: how the news media turned patient safety into a priority. Qual Saf Health Care. 2002 Mar;11(1):57-63.
47. Alcock v Chief Constable of South Yorkshire Police [1992] AC 310.
The decision in Equuscorp is significant, as it has made clear several principles that were once ambiguous under Australian law. It ratifies that restitutionary remedies are unavailable for a claim for money had and received where recovery would reduce coherence in the law. Furthermore, Equuscorp has confirmed that a bare cause of action can be assigned where the assignee has a genuine commercial interest in its enforcement.
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 .
Axiak v Ingram (2012) 82 NSWLR 36 (Axiak) was extremely pertinent, standing as the “only decision of this court dealing with the construction of the blameless accident provisions of the MACA”. Critically, the case established that ‘non-tortious negligence’ is excluded from the MACA’s definition of “fault” in s3. Such provisions artificially place fault upon the driver in order to secure CTP claims for victims.
This trend began to ebb with MacPherson v. Buick Motor Co., and the ruling by an appellate court that favored MacPherson, the plaintiff. This case, however, was more a result of political expediency than a reasoned verdict based on fact. In this case, the plaintiff argued that his 1911 Baby Buick had a defective wheel that collapsed while traveling at a low rate of speed, hitting a telephone pole, and pinning him under, breaking his wrist and cracking several ribs; however, the facts of the trial revealed that the accident as it was recounted by the plaintiff was a physical impossibility, but due to the increasing pressures to dispense with privity rulings, the court imposed on the defendant the responsibility of inspecting and discarding defective wheels, implying causal negligence even though the plaintiff had driven the vehicle for more than a year in less than perfect road conditions without a mishap. (MacPherson Tort Story; MacPherson v. Buick Motor Company: Simplifying the Facts While Reshaping the Law, Pg.
9. Woodgate, R., Black, A., Biggs, J., Owens, D. (2003). Legal Studies for Queensland, Volume 1, ForthEdition, Legal Eagle Publications: Queensland. 10. Woodgate, R., Black, A., Biggs, J., Owens, D. (2003).
Medical error occurs more than most people realize and when a doctor is found negligent the patient has the right to sue for compensation of their losses. Debates and issues arise when malpractice lawsuits are claimed. If a patient is filing for a medical malpractice case, the l...
Forrester, K., & Griffiths, D. (2010). Essentials of law for health professionals. Sydney: Mosby Elsevier. Retrieved from Google Books.
A series of events unfolded when George, running late for class, parked his car on a steep section on Arbutus drive and failed to remember to set the parking brake. The outcome of not remembering to set the parking brake caused many issues resulting in scrapping a Prius, breaking through fencing, people on the train sustaining injuries, and finally a truck that jack-knifed and caused a 42-car pileup. Could the parties that were injured, from George’s actions, be recovered from under the negligence theory? To understand if George is negligent, it is best to look at the legal issue, the required elements of negligence, the definition and explanation of each element of the case, and finally to draw a conclusion to determine if George is negligent.
However, there are certain issues that may result from unfilled gaps between the expected and the actual provided health care treatment, and these issues vary in severity. But unfortunately, there are many people as patients who may not be fully aware of their legal right to file clinical negligence claims that could have been valid and successful.
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.
The liability for negligent misstatement may arise from pure economic loss. According to Steele (2010), ‘Economic losses will be regarded as “pure” if they do not flow from any personal injury to the claimant nor from physical damage to his or her property’. The boundaries between “pure” economic loss and the loss which is “consequential” from damage were established by the Court
In order to critically assess the approach of the courts in allowing damages for pure economic loss in cases of negligence. One must first outline what pure economic loss is and what it consists off. Pure economic loss can be defined as financial loss or damage to one party caused by another party due to their negligence however the negligent act that is carried out is ‘purely’ economic and has no relation to any physical damage caused to any person or property. Numerous cases illustrate pure economic loss and losses that are deemed to be ‘purely economic’ are demonstrated under the Accidents Act 1976.
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)
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...
In order to gain a firm understanding of how strict liability strikes a balance between regulatory offences and the criminal law principle of moral blameworthiness, an in depth understanding how strict liability differs from the other regulatory offences needs to be established. Strict and absolute liability involves the Crown proving that a regulatory offence had occurred beyond a reasonable doubt without determining the fault element. True crimes on the other hand ensures that mens rea be established in order to convict the accused. The primary goal of strict liability is to establish that the individual’s actions were negligent and that they did not practice due diligence. Due diligence refers to a person’s ability to take “an active and reasonable attempt to prevent the commission of the prohibited act (Roach, 221).” It is through these differences that strict liability allows for the accused to prove that they exercised reasonable judgment and attempted to reduce negligence.