Negligence & Breach of Duty of Care
Ingredients required to sustain a successful claim in negligence, breach of duty and consequential damage.
The case of Donoghue v. Stevenson(1932) AC 562, laid the foundations of the law of negligence however there is no specific definition, as suggested by Lord Atkin that to seek a full logical definition of negligence is probably to go beyond the function of the judge.
The Donoghue case set out requirements which a person must meet in order to bring a successful claim for negligence, which ar e; a duty of care, a breach of that duty and that the breach must have caused the harm in question.
Duty of care; This is a legal responsibility not to cause harm. In Caparo Industries Plc v Dickman (1990) 2 AC 605; (1990) 2 WLR 358; (1990) 1 All ER 568, a three part test was established in order to determine whether a duty of care exists.
The first is foresight, which means a reasonable contemplation of harm; the next is proximity, which means a close relationship between the claimant and the defendant. Lastly, it must be fair just and reasonable to impose a duty and the courts must consider whether in all the circumstances it would be fair, just and reasonable that the law should impose a duty.
It was suggested in the case of Howard Marine & Dredging Co Ltd v Ogden Sons(1978) QB 574 that in any business or professional relationship there is potential for a special relationship to exist.
Breach of Duty; in determining whether a duty care has been breached, consideration must therefore be given to the standard of care required. Reasonable care must be taken to avoid any foreseeable harm. With regard to medical negligence, the standard of care applicable to the medical profession was established in the case of Bolam v Friern HMC (1957) 2 All ER 118, where it was stated that a doctor “is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a body of medical men skilled in that particular art”.
Causation; there must be a direct link between the defendant’s negligence and the damage suffered by the claimant. This means that the damage or loss must be as a result of the defendant’s breach of duty.
In a recent case conducted by our firm on behalf of our clients, with respect of the birth and demise of child who suffered from congenital abnormalities which caused our client psychiatric injury on viewing the child at birth, our clients claimed that the quality of care received from the health authority following an ultrasound scan amounted to a breach of acceptable standards of care for an obstetric service acting with due care and attention. This allegation was refuted by the health authority and we therefore instructed an appropriate expert in fetal medicine to seek his opinion as to whether the authority had breached their duty of care.
The report confirmed that there was indeed a breach of duty and however if our client's baby was referred for detailed fetal ultrasonography in a tertiary fetal medicine center, the baby’s congenital abnormalities would probably have been identified however the equipment used by the health authority at the time was not capable of diagnosing the abnormality so it did not cause the damage and eventual death of the baby. Our client had however suffered from post-natal depression as a result of the shock arising from the birth of the child with abnormalities and her subsequent death resulting therefrom.
This case confirms that even where there has been a breach of a duty of care,the damage resulting from the breach must have been caused by the negligence and reasonably foreseeable and not too remote.
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A.Williams & Co. is a cross border practice which delivers the optimum legal services to their clients.The Principal is dually qualified and practices in two jurisdictions.He is an IBA fellow in International Legal Practice, an associate Member of the Chartered Institute of Arbitration,a Committee member of the IBA World Trade Organization and a Director of British Expertise.The firm represents multinationals from various jurisdictions and the professional members of the firm have dealt extensively with retainers involving clients whose work spans several jurisdictions.
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