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Law of Tort. Breach of Duty Care

Introduction

A tort is referred to as a civil wrong committed against any individual rather than the society or the tort (Bermingham and Brennan, 2008)1. The tortuous liability usually arises when a breach of duty is primarily fixed by the law takes occurs. The main aim of tort law is to protect the interest of the persons involves including their personal security, health, privacy and reputation, policy and insurance roles, malice, strict and faulty liability, bad intentions and negligence among other personal interest (BAILII 2010, 132-1992; Miller, Vandome, and McBrewster, 20093).

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Under the tort law, the court believes that a person interest are protected and therefore redresses the unliquidated damages caused to that person by awarding damages (large sums of money) for the infringement of the protected interest or issuing injunctions (Bermingham and Brennan, 2008). Remarkably, the tort law is a wide subject and one of the most legal areas to lay down principles for and hence, a lot of people barely know the general pattern that tort law takes and the main deviations found in the tort law. It should therefore be well understood and to do this, we will take a look at an incidence that entails the breach of tort law in order to understand the applicability of the tort law (Birmingham & Brennan 2008, 156-178).

Incidence Overview

The rink is owned by Swansea Sprites (hockey team). The rink has a plastic screen meant for protecting the spectators. To avoid paying compensation to Cheryl, Swansea Sprites which is in a financial difficulty calls an ambulance. Danni who is a paramedic recently put under diabetic diagnosis is sent to the rink to attend to Danni and as he drives to hospital, he experiences partial loss of consciousness and the ambulance collides. Cheryl breaks her leg and when at the hospital, Simon a junior doctor treats Cheryl leg using a procedure from European journal resulting to Cheryl’s foot amputation.

Swansea Sprites, Simon and Danni breach of care of duty

Breach of care by Swansea Sprites

For the breach of duty of care not to take place, the defendant must meet standards of the reasonable man as outlined in Blyth v Birmingham Water works case. As outlined, negligence(the cause of breaching the duty of care) ; omission of acting the way reasonable people guided by human affairs conduct are expected to results from acting the way prudent people are not suppose to. This implies that a breach of duty of care takes place if a person is liable for negligence by omitting doing what a reasonable person should do or avoid taking reasonable precautions. For the breach of duty of care to be effective, the defendant must also prove that the effective injury or loss sustained was as a result of the defendant’s action (Cooke 2007, 251-287)4.

To determine whether Swansea Sprite breached their duty of care, it is important tat we look at the degree of the risk. Great risks required the defendant to take more precautions as outlined in Bolton v Stone whereby a cricket club was not considered found not negligent when a player hit a ball thus injuring a spectator because the likelihood of the occurrence could not be easily determined (was small) and therefore, the defendant was unlikely to take any precaution. However, in Miller v. Jackson, 966 3 WRL 20, the ball was hit from the ground severally and therefore, the club was expected to have taken the necessary precautions. In this case, Swansea Sprites hockey team knew that the probability of a helmet being hit from the ground and causing harm to the spectators was high as the incidence had already occurred severally; three times in a ten year span (Best & Barnes 2007, 123-198)5. This implies that the team could have taken the precaution measures in regard to the two meter plastic screen that protected the spectators. To further determine whether there was father breach of duty of care the impracticability of the precautions put forth should be considered as outlines in the case of Wilson v Governor of Sacred Heart Roman Catholic Primary School. In attempt to avoid paying compensation to Cheryl, an action which could have caused further financial difficulty, Swansea Sprites avoided taking Cheryl to hospital as required and instead called for an ambulance. This implies that they broke the policy or common action or precaution that they had put forth to protect their spectators for the team’s personal gain and therefore, the precaution put forth was impractical and a breach of duty of care (Madden 2005, 56-116; Bermingham and Brennan, 2008).

Breach of duty care by Simon

Novices in areas of their skills are also required to portray the same care standard as a reasonable person possessing similar skills would do. In this case, Simon who opted to treat Cheryl’s broken leg with a procedure suggested in European Journal of Osteopathy and chose not to weigh the benefits versus the risks of the procedure involved as a skilled doctor in his position would do (Magnus, Martín-Casals & van Boom 2004, 99-169)7. Although the procedure in the journal proved to have a short recovery period, it greatly increased complications occurrence likeliood. Nevertheless, as a doctor with two treatment options, he failed to inform and advise Cheryl on the two procedures and let Cheryl choose the right procedure as a skilled doctor in his post would do hence resulting to amputation of Cheryl’s foot (Miller, Vandome & McBrewster 2009, 123-345).

Breach of duty of care by Danni

As a professional driver, Danni knew that she was barred from driving under her anemic condition but went ahead and drove the ambulance. As a result, Danni lost consciousness and caused an accident which cost Cheryl a broken leg. Breach of duty of care can be caused by accidents which happen out of carelessness and would therefore not take place. Also, any accident caused by the defendant must be under his or her control. In this case, it was careless of Danni to drive with substantial knowledge that she is not supposed to drive under her condition. It was therefore under her control to prevent the occurrence of the accident by avoiding driving (Postema 2001, 67-188)8.

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However, actions serving socially useful purposes are justifiable in taking great risks as and one can take great risk as in, in Watt v Hertfordshire 1954, 2, AER 368 (Kidner 2010, 99-133)9. Considering the social importance of Danni’s activity, she had known of her condition and knew that she was not suppose to drive but with the absence of paramedics, she did what was best for (took a greater risk) in serving a common good (saving a Cheryl’s life). She was therefore not negligent in any way and therefore, she did not breach the duty of care (University of London 2010, 1-87)10.

What if Danni was unaware of her diabetic condition?

If Danni was to be sued under the claim of negligence that caused accident without considering the social usefulness of her actions, unawareness of her diabetic condition would play a great role in mitigating the court proceeding. This would imply that the occurrence of the accident was not caused by Danni carelessness and was not under her control. However, Danni unawareness of her diabetic condition would not play any role in mitigating the court proceedings if Danni’s defense was based on the grounds of serving a socially useful purpose (Harlow 2005, 145-214)11.

Conclusion

From the incidence, Cheryl should note that she can only sue Simon and Swansea Sprites as the cause of her amputated leg. In both Simon’s and Swansea Sprites case, it is foreseeable that their actions could have caused injury or harm, and there was feasibility of an alternative action that they could have taken to mitigate the injury or loss. This implies that Cheryl can file charges for the unliquidated damages caused to her and be awarded damages (large sums of money) for the infringement of her personal health interest. However, she will have to interconnect the two incidence occurrence to prove that these two incidences led to her amputation. This shows that if Swansea Sprites had taken her to the hospital without requesting for an ambulance, Cheryl would probably not have gotten into an accident (Wright 2001, 188-33)12.

Reference List

  1. Bermingham, V and Brennan, C. 2008. Tort law: directions. London: Oxford University Press.
  2. BAILII. 2010. United Kingdom House of Lords Decisions. Web.
  3. Miller, F.P., Vandome, A.F. & McBrewster, J.2009. English Tort Law: Negligence, Professional Negligence in English Law, Duty of Care in English Law, Breach of Duty in English Law, Causation (law), Causation in English Law. New York: Alphascript Publishing
  4. Cooke, J. 2007. Law of Tort. Salt Lake: London: Pearson Education
  5. Best, A. and Barnes, D.W.2007. Basic tort law: cases, statutes, and problems. London: Aspen Publishers.
  6. Madden, M.S.2005. Exploring tort law. Cambridge: Cambridge University Press.
  7. Magnus, U., Martín-Casals, M. and van Boom, W. H. 2004. Unification of tort law: contributory negligence. New York: Kluwer Law International
  8. Postema, G.J. 2001.Philosophy and the law of torts. Cambridge: Cambridge University Press
  9. Kidner, R. 2010. Casebook on Torts. London: Oxford University Press.
  10. University of London. 2010. Chapter 3 Negligence: duty of care and breach of duty. Web.
  11. Harlow, C.2005. Understanding tort law. New York: Sweet & Maxwell
  12. Wright, J.2001. Tort law and human rights. New York: Hart Publishing

Footnotes

  1. Bermingham, V and Brennan, C. 2008. Tort law: directions. London: Oxford University Press.
  2. BAILII. 2010. United Kingdom House of Lords Decisions. Web.
  3. Miller, F.P., Vandome, A.F. & McBrewster, J.2009. English Tort Law: Negligence, Professional Negligence in English Law, Duty of Care in English Law, Breach of Duty in English Law, Causation (law), Causation in English Law. New York: Alphascript Publishing
  4. Cooke, J. 2007. Law of Tort. Salt Lake: London: Pearson Education
  5. Best, A. and Barnes, D.W.2007. Basic tort law: cases, statutes, and problems. London: Aspen Publishers
  6. Madden, M.S.2005. Exploring tort law. Cambridge: Cambridge University Press.
  7. Magnus, U., Martín-Casals, M. and van Boom, W. H. 2004. Unification of tort law: contributory negligence. New York: Kluwer Law International
  8. Postema, G.J. 2001.Philosophy and the law of torts. Cambridge: Cambridge University Press
  9. Kidner, R. 2010. Casebook on Torts. London: Oxford University Press.
  10. University of London. 2010. Chapter 3 Negligence: duty of care and breach of duty. Web.
  11. Harlow, C.2005. Understanding tort law. New York: Sweet & Maxwell
  12. Wright, J.2001. Tort law and human rights. New York: Hart Publishing

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