Following are the particular issues that have to be discussed: –
Negligence is considered to be the failure of meeting standard behavior that has been established to protect the society against any kind of unreasonable risk. It is supposed to be the cornerstone of the tort liability as it acts as a key factor in offering compensation for personal injury or for property-damage trials. It can be understood through the milestone case of Donoghue v Stevenson [1932] UKHL 100 where the foundation of modern law of negligence had been laid down establishing the general principles regarding the duty of care. In order to prove negligence, the plaintiff has to prove certain key factors that are essential and these are supposed to be in the form of duty of care, breach of such duty of care along with causation and damages. In the case of Donoghue v Stevenson, the categories were not considered to be closed as per Lord Macmillan. Thus, the liability needs to be comprehended as such was considered to be the result of a negligent act or omission. However, at times the factual causation is supposed to be distinguished from the legal causation as such would be used to avert the danger of the defendants. Hence, the doctrine of negligence is considered to not require the elimination of the risk from the behavior of the individual.
As per the case of Alexander Glancy v The Southern General Hospital NHS Trust [2013] CSOH 35 – 1/3/2013 the plaintiff had presented the general practitioner with neck as well as upper arm pain and he also complained about other pain and due to such underwent four operations. However, the plaintiff had stated that the medical practitioner failed to warn him of the significant risk of paralysis and tetrapleagia and the practitioner failed to carry out proper investigations due to which injury had been suffered. However, after proper analysis, it had been found that the practitioner had not failed in his duties and due to such the plaintiff could not succeed. Therefore, it can be stated that, the medical negligence is considered to be proved on the basis of the three-part test whereby certain duty of professional care was owed to a patient and as a consequence of that breach the patient is considered to suffer harm. Therefore, all the parts of the test need to be satisfied as there are civil considerations of negligence where the doctors are supposed to act on certain appropriate standard which would not be exclusively judged.
In the particular case cited to be Anderson v Milton Keynes NHS Trust & ANR, HIGH CT, 11/5/2006, the breach of duty had been established however, causation had not been established through the evidence. Although the breach of duty was present as the hospital did not communicate the surgeons about the performance of the operations, the laboratory results were considered to show the presence of bacteria as such was part of the existing surgical wound. Therefore, the case revolved around the clinical medical negligence.
As per the case of Boustead v North West Strategic Health Authority [2008] EWHC B11 (QB) (2008) the original decision stated that the caesarean approach would not be performed and such was considered to be a reasonable proposition taken by the obstetricians during that time. However, the decision to not perform the emergency caesarean caused the plaintiff to suffer and this created breach of duty. Thus, rule of medical negligence requires the doctors to act in a certain manner and in an appropriate standard as their standard of practice can be questioned. The actions of the doctors might lead to certain kind of long-term or short-term injuries and this would make the doctors incompetent. Therefore, the rule in common law protects the patients from medical negligence as it is supposed to offer a substandard care which would prevent the individuals from any kind of injury that would make their existing condition worse. It can also be understood from the case of Brindley v Queen’s Medical Centre University Hospital NHS Trust [2005] EWHC 2647 (QB) (2005) where the medical professional’s evidence regarding the advice was supposed to be preferred in spite of the claimant’s advice.
Contributory negligence is considered to be used as a defense by the defendants as the behavior of the plaintiff contributes to one’s own injury or loss as they fail to meet the standard of prudence that the plaintiff should have observed for one’s own good. It can be observed through the case of Tompkins v Royal Mail Group PLC [2005] EWHC 1902 as the case revolved around the principle established above. It assessed the causative contributions of the parties’ accident and injury. In addition to such, it also decided the just and equitable apportionment.
In the specific case of Harrison v MoD [1993] CLY 3929 the standard of care in contributory negligence was considered to be established as the test amounted to the concept of reasonable care as the primary objective. The claimant in this case needed to take reasonable care in order to prevent the accidents.
It can be established through the instance of Grant v Sun Shipping Company [1948] AC 549, at 567 that, the reasonable claimant in this particular case had to be prepared for the fact that others might not have possessed the reasonable skill and care in their behavior. Therefore, it had been stated by Lord du Parcq that a prudent or reasonable man would have to be on guard against the possible negligence in case negligent acts were common.
It can be elucidated through the case of Boardman v MoD [2010] LAWTEL that a driver is not considered to be expected to foresee the folly of other road users and he or she is under a duty to take into consideration of the children’s wellbeing and due to such cannot act without thinking in an unpredictable manner. Thus, the doctor is supposed to have the duty to drive in a manner that is reasonable and that would take consideration of the matters.
It can be perceived through the case of Glasscock v London Tilbury and Southend Railway [1902] TLR 295 that the claimant had been thrown off guard by the behavior of the defendant and due to such thought that he may proceed with less care as such would be expected off him. Therefore, due to such contributory negligence would be applicable as the plaintiff would partially be responsible for the injury caused by him. Thus, it can be stated that, in order to prove contributory negligence, the defendant had to prove that the negligent person owed a duty of reasonable care to himself and in spite of such did not act in a reasonable manner which caused the breach and due to such, injuries were caused. As a result, the doctrine of common law regarding contributory negligence protected the defendants from their liabilities to a certain extent as the plaintiff contributed to the negligent act themselves. Therefore, the damages or the compensation would be dependent on the degree of negligence by both the parties and it would be decided by the court of law.
In the provided scenario, Alastair drove the vehicle over the specified speed limit in heavy rainstorm, and as a consequence accident transpired, due to which Prisha (the driver of the other car) was killed and Jana (the passenger of the other car) suffered heavy injuries. Even Alastair suffered serious injuries. At the Rose Valley General Hospital, due to the negligence of the hospital staff and doctor, Alastair was deprived of 30 per cent chance of full recovery. A month subsequent to the accident, Jana was suffering muscle cramps due to the accident (and also possibly due to her past condition relating to brittle bones), and in such condition, Jana made an attempt to climb down steep and dangerous steps, thereby suffering more injuries.
Making application of the case cited to be Donoghue v Stevenson [1932] UKHL 100, it can be said that in order to prove negligence, the plaintiff(s) in the given scenario shall be obligated to prove certain key factors, which shall include the duty of care, the violation of such duty of care along with the causation and the damages. For instance, Alastair had the duty of care to drive within the speed limits. However, he caused a violation of such duty of care, and as a consequence, killed Prisha as well as injured Jana.
The case cited as Alexander Glancy v The Southern General Hospital NHS Trust [2013] CSOH 35 – 1/3/2013 should be applied in relation to the given scenario. Making application of the above said case, it must be stated that the staffs and the junior practitioner or doctor at the Rose Valley General Hospital failed to carry out proper investigations due to which injury had been suffered by Alastair. Due to the administrative error on their part and an incorrect blood transfusion, Alastair lost 30 per cent chance or scope of full recovery. It must be noted that the medical negligence on the part of the staff and the junior doctor at Rose Valley General Hospital shall be considered to have been proved because a certain duty of professional care was owed in respect of Alastair, and they certainly caused a violation of that duty, and as a consequence of that violation or breach, Alastair suffered harm. Therefore, all the parts in connection to the test have been satisfied (even after taking into consideration the factors where the doctors are supposed to act on certain appropriate standard which would not be exclusively judged).
Making application of the particular case cited to be Anderson v Milton Keynes NHS Trust & ANR, HIGH CT, 11/5/2006, it should be said that there has been a breach of duty on the part of the staff and the junior doctor at Rose Valley General Hospital. In case of Alastair, causation can be considered to have been established as it is very clear from the facts that the actions of the defendant (staff and the junior doctor at Rose Valley General Hospital) were the actual cause of the injury of the plaintiff (Alastair). However, same cannot be said in case of Jana. The actions of the defendant were not the reason for Jana’s later injury.
Making application of the case of Boustead v North West Strategic Health Authority [2008] EWHC B11 (QB) (2008), it can be said that the failure of the staff and the junior doctor at Rose Valley General Hospital caused Alastair to suffer and this gave rise to violation of duty. Therefore, it can be said that the rule of medical negligence requires the doctors to act in a certain manner and in an appropriate standard as their standard of practice does not give rise to any questions. The actions of the staff and the junior doctor at Rose Valley General Hospital resulted in long-term injuries of Alastair, thereby making them liable.
The case of Brindley v Queen’s Medical Centre University Hospital NHS Trust [2005] EWHC 2647 (QB) (2005) should be applied in relation to the provided scenario. Making application of the above said case, it can be said that failure on the part of staff and the junior doctor at Rose Valley General Hospital resulted in injury and harm to Alastair.
Contributory negligence is actually utilized in the form of a defense by the defendants as the behavior of the plaintiff contributes to one’s own injury or loss as they fail to meet the standard of prudence that the plaintiff should have observed for one’s own good. Making application of the case of Tompkins v Royal Mail Group PLC [2005] EWHC 1902, it can be stated that the behavior or conduct of Jana contributed to her own injury because she failed to meet the standard of prudence, which she should have observed for her own good. She made an attempt to climb the steep stairs along with a vacuum hoover (in her condition).
Making application of the case of Harrison v MoD [1993] CLY 3929, it must be stated that in the given scenario, Jana needed and was obligated to take reasonable care in order to save her from any kind of accident or injury. However, she failed to do that.
Applying the case of Grant v Sun Shipping Company [1948] AC 549, it can be said that in the provided scenario, Jana should have been prepared for the fact that she had to be reasonable and not negligible in her condition. Therefore, it must be said that any prudent or reasonable person in the position of Jana would have been on guard concerning the injuries and should never have been careless as Jana.
The case of Boardman v MoD [2010] LAWTEL as well as the case of Glasscock v London Tilbury and Southend Railway [1902] TLR 295 should be applied in relation to the provided situation. Making application of the above said two cases, it must be mentioned that contributory negligence would be applicable in the case of Jana because she had been partially responsible for the injury that she suffered afterwards (subsequent to one month after the accident). Therefore, it can be stated that, in order to prove contributory negligence on the part of Jana, Alastair shall be required to prove that the Jana actually owed a duty of reasonable care to herself and in spite of the existence of such duty, she did not performed actions in a reasonable manner, which consequently caused the violation of such duty and due to such violation, further severe injuries had been suffered by Jana afterwards. As a consequence, the doctrine relating to common law regarding contributory negligence shall certainly protect Alastair from the further severe injuries that Jana suffered afterwards, because it was Jana herself who actually contributed to the negligent act herself when she tried to climb the steep steps carrying a vacuum hoover. Therefore, the damages can be received from Alastair by Jana only from the initial injury that she suffered directly as the consequence of the accident.
Conclusion
Therefore, in the conclusion, it can be said that: –
Alexander Glancy v The Southern General Hospital NHS Trust [2013] CSOH 35 – 1/3/2013.
Anderson v Milton Keynes NHS Trust & ANR, HIGH CT, 11/5/2006.
Boardman v MoD [2010].
Boustead v North West Strategic Health Authority [2008] EWHC B11 (QB) (2008).
Brindley v Queen’s Medical Centre University Hospital NHS Trust [2005] EWHC 2647 (QB) (2005).
Donoghue v Stevenson [1932] UKHL 100.
Glasscock v London Tilbury and Southend Railway [1902] TLR 295.
Grant v Sun Shipping Company [1948] AC 549.
Harrison v MoD [1993] CLY 3929.
Tompkins v Royal Mail Group PLC [2005] EWHC 1902.
Essay Writing Service Features
Our Experience
No matter how complex your assignment is, we can find the right professional for your specific task. Contact Essay is an essay writing company that hires only the smartest minds to help you with your projects. Our expertise allows us to provide students with high-quality academic writing, editing & proofreading services.
Free Features
Free revision policy
$10Free bibliography & reference
$8Free title page
$8Free formatting
$8How Our Essay Writing Service Works
First, you will need to complete an order form. It's not difficult but, in case there is anything you find not to be clear, you may always call us so that we can guide you through it. On the order form, you will need to include some basic information concerning your order: subject, topic, number of pages, etc. We also encourage our clients to upload any relevant information or sources that will help.
Complete the order form
Once we have all the information and instructions that we need, we select the most suitable writer for your assignment. While everything seems to be clear, the writer, who has complete knowledge of the subject, may need clarification from you. It is at that point that you would receive a call or email from us.
Writer’s assignment
As soon as the writer has finished, it will be delivered both to the website and to your email address so that you will not miss it. If your deadline is close at hand, we will place a call to you to make sure that you receive the paper on time.
Completing the order and download