The Legal Duty of Care in Tort Law, Foreseeability of Injury

DUTY OF CARE IN TORTS LAW, LIABILITY, FORESEEABILITY OF NEGLIGENCE, RECKLESSNESS, NUISANCE


Duty of care in Donaghue -v- Stevenson 1932 was defined as exercising such care as is due in such 'acts or omissions which you can reasonably foresee would be likely to injure persons so directly affected that you ought reasonably to have them in contemplation' and Caparo Industries -v- Dickman 1990 referred also to situations in which it would be fair, just, and reasonable to impose.
This duty is owed to one in physical proximity: e.g., in Haseldine -v - Daw 1941 to user of a lift negligently repaired, Buckland -v- Guilford Gas Light 1941 to child electrocuted by low cables upon climbing a tree, but not to a mother for shock nor for miscarriage to one who was to be who the driver and the rider could not to have known that were around in King -v- Phillips 1953 and Bourhill -v- Young 1942; or to one in legal proximity: e.g., in Donaghue -v- Stevenson 1932 for illness of consumer from manufacturer's drink purchased by another, but not if immune as public policy in Hill -v- Chief Constable 1988, or as barristers or judges - Saif -v- Sydney Mitchell 1980; or to one with blood-ties: e.g., in McLoughlin -v- O'Brien 1982 to a mother who by news of accident 'it was obvious that would be affected' ~it can be owed for financial loss in special professional relationships -Mutual Life Assurance -v- Evett 1971, for careless words not made clear as being without responsibility -Hadley Byrne -v- Heller & Partners 1964, and for serious nervous shock -Reilly -v- Merseyside RHA 1994.

The harm, additionally, if reasonably foreseeable is -Fardon -v- Harcourt 1932, negligence may entitle to damages, even punitive, Rookes -v- Bernard 1964, although if contemptuously claimed to as little as the smallest coin of the realm, e.g., without costs and nominal in Constantine -v- Imperial London Hotels 1944.

Circumstances in which a duty of care can be breached, except in the case of specific torts such as libel or trespass -or under the Rylands -v- Fletcher rule where lawfully but at one's own peril is made any unnatural use of land and excluding cases of immunity and circumstances where a statutory duty properly exercised infringes a right -such as the disturbance caused by the noise of aircraft taking of or landing - but not if improperly exercised: Fisher -v- Ruislip-Northwood UDC 1945, such circumstances may be even when a risk is know and not objected to: Smith -v- Charles Baker & Son 1891, indeed where a risk is known and has been consented to: Bowater -v- Rowley Regis Corp. 1944 ~even if there is contributory negligence: Stapley -v- Gypsum Mines Ltd 1953 -indeed even if despite instructions.

The standard is that of the 'reasonable man'; if injury was risked: Bolton -v- Stone 1951 ~6 times in 30 years meant not and the degree of the risk is proportional to the degree of care required; the seriousness of the injury risked too is proportional the degree of care necessary: Paris -v- Stepney BC 1951 -more so to employee blind in one eye, and not the amount but the type of the injury on the basis of: British Railways Board. -v- Herrington 1972; a social value whether justified the risk: in Fisher failure was not justified in war-time black-out to put up shaded lights to avoid public nuisance to a cyclist, in Watt -v- Hertfordshire CC 1954 getting the wrong vehicle on the scene of accident was justified by the valuable time that would have been lost in getting there help; the cost-benefit consideration: in Latimer -v- AEC 1953 to have done more than reasonable would have made the risk too remote in comparison -except if there is a statutory duty such as under the Health & Safety Acts; that standard in the case of an expert's negligence is, instead -Latimer, of a 'reasonable expert'. 
The link between the breach of duty and the resultant damage must be shown to exist as a matter of fact or a matter of law. The former is subject to the 'but for' rule: in Barnett -v- Chelsea etc. Hospital etc. 1968 breach by the failure of the doctor to call was not the caused of death, McWilliams -v- Sir Arrol 1962 failed because the safety-belt would not have been worn if supplied, in Cutler -v- Vauxhall motors 1971 the operation on a graze had already been ordered for an ulcer on the site of it and was a pre-existing condition; but, is not broken a causative link by a consecutive cause and did not lessen a subsequent injury the original factors in Baker -v- Willoughby 1970, nor necessarily disentitle multiple causes when on a balance of probabilities the link considerably was the reason: McGhee -v- National Coal Board 1973; where the harm or part of it is from a third party's breach the 'but for' rule still applies to whether he type of injury could have been seen: Hogan -v Betinck Colliers 1949.

The latter only applies if the breach is not too remote, and it was not in Wieland -v- Cyril Lord Carpets 1969 that the fall elsewhere and later had resulted from the necessity to discard bi-focal glasses caused by the driver's negligence; the special sensitivity of the claimant did not matter -'egg-shell skull' rule: Robinson -v- Post Office 1974 -'one must take the victim as he finds him'; in The Wagonmound 1961 at the time of the breach that oil spilled could burn on sea-water could not reasonably, and in Doughty -v- Turner Mfg. 1964 because of the state of knowledge, have been foreseen; but in Bradford -v- Robinson Rentals 1967 the frostbite was because of providing a van without a heater.

The claimant's proof can move to the defendant: Steer -v- Durable Rubber 1956; at least some evidence is necessary of negligence even if 'facts speak for themselves' -they can not if the claimant can not say what happened: Wakelin -v- LSWR 1886, negligence can be inferred from absence of explanation by defendant, for any by claimant by Law Reform (Contributory Negligence) Act 1945 proportionate reduction is made. 

Taking care of Claims of Accidents Victims

A lot of people are involved in accidents all over the world due to various reasons or causes. This might be from a defaulter of traffic light, recklessness, negligence, complicated sequence of road incident and many more. This is the reason why it is imperative for people to be very care while on the road. However, no matter how careful a driver or person might try to be, there some accidents that would still occur. Accident injury has become something common that anyone can fail victim of.  The problem that arises during an accident is that it might be difficult to nail the person responsible if there is no concrete evidence. Accidents can occur in different places which is why injuries that are received from accidents are treated differently. And because of this, there are different types of legal claims that are received from accident victims
If you've been injured in an accident, whether it's a slip and fall, a car accident or medical malpractice, it can be hard to prove who is responsible. Here are some frequently asked questions about accident fault. Negligence is one major challenge of accidents and because of this a victim would always sue for compensation when this happens. For those making use of the roads, it is their responsibility to maintain safety of others and themselves by being careful and also by ensuring that they do not neglect their duties while on the road. Driving and drinking is recklessness that can cause accident claim against the driver if an accident occurs. Accidents can be caused by someone engaging in sex that is unprotected knowing that he or she has a venereal disease that would affect the victim. Making use of drag racing in residential areas can cause accident and also making use of substances in public areas can equally cause a medical or health accident. Lawsuits that are filed during injuries of accidents can be through intent or what we called willfulness of causing harm or injury with intent. Recklessness and negligence are involved and the strict liability is what a victim can file an injury on. Accident victims have specialized lawyers who would be able to help them get compensation when they file their case to court. With solid evidence, a victim of accident would be taken care of by the law no matter who are involved especially insurance companies. Employees can equally sue their employers if they are victims of work accidents.

Understanding Negligence in Injury Cases

In most accident cases reported, one or more person's negligence forms the basis of the incident. When the victim of such an incident files a lawsuit against the responsible entities, the theory of negligence comes into play. What are the elements in such a case? How do you know who is responsible? How do you establish negligence?
To get answers to these questions, you need to consult an accident attorney specializing in such cases. Let's analyze the elements that come into play in these cases. 

Proximate Cause: Only if the victim, i.e. the plaintiff, can establish that another's negligent action was ‘a proximate cause' for his/her injury, damage recovery is possible. The negligent conduct of the responsible entity, i.e. the defendant, must have a direct connection to the injury. 

Reasonable Care: Any action is deemed negligent only when there is a breach of reasonable care – the standard of care that any other reasonable person would use in similar circumstances. This standard differs only when the responsible entity is a minor (there is no question of negligence if it is a minor below the age of 7 years). 

Negligence: There are four typical tenets in this –

1)    there was a reasonable duty to care
2)    there was a breach to this duty
3)    there was injuries to another
4)    there was a causation relation between the breach and the injuries 
Various legal directives of Florida are applicable in all Miami accident cases. It is essential to get a good Miami accident attorney to work on the case and establish negligence and liability. 

Here are the three statutes that may affect these lawsuits. 

Gross Negligence – where an entity's action, or failure to act, is reckless enough that it shows a lack of concern for anyone else. 

Comparative Negligence – if more than one entity's conduct is responsible for the incident, the victim may sue all. However, each of these entities pays only a percentage of the damages according to their degree of responsibility. 

Contributory Negligence – Florida laws state that if the plaintiff is partly responsible for the incident, the damage recovery decreases according to his/her degree of responsibility. 

If you think that your injuries were a responsibility of another, you need to find a Miami injury law firm immediately. The legal practitioners working there would be able to work on the case to assess negligence and get adequate damage recovery. Their awareness of the laws and the way these affect your case is a requisite for this.

Judicial interpretation of medical negligence under consumer protection

INTRODUCTION: Medical profession is one of the most oldest professions of the world and is the most humanitarian one. There is no better service than to serve the suffering, wounded and the sick. Aryans embodied the rule that, Vidyo narayano harihi (which means doctors are equivalent to Lord Vishnu). Since long the medical profession is highly respected, but today a decline in the standard of the medical profession can be attributed to increasing number of litigations against doctors for being negligent narrowing down to "medical negligence". Hospital managements are increasingly facing complaints regarding the facilities, standards of professional competence, and the appropriateness of their therapeutic and diagnostic methods. When incidents like these began to rise, the Supreme Court intervened and pronounced that medical profession and professional could also be tried under the Consumer Protection Act (CPA), 1986.

Keywords: Consumer protection act, medical negligence, reasonable care,medical malpraxis,medical council of india.

Negligence is a breach of duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the contract of human affairs would do which a prudent and reasonable man would not do. According to Charlesworth & Percy on Negligence(Tenth Edition, 2001) in current forensic speech, Negligence has three meaning. There are

        I.            A state of mind, in which it is opposed to intention

     II.            Careless conduct

   III.            The breach of duty to take care that is imposed by either common or statute law.

Medical negligence defined as – the failure to exercise rational caution and capability during diagnosis and treatment over a patient in accordance to the prevailing standards in force at that point of time. In case of Bolam Vs. Friern hospital management committee 1957, the test for establishing medical negligence was set. "The doctor is required to exercise the ordinary skill of a competent doctor in his field. He must exercise this skill in accordance with a reasonable body of medical opinion skilled in the area of medicine." In Dr.Kunal Saha v. Dr. Sukumar Mukherjee and Ors., decided on 1st June,  2006, the National Consumer Commission summarised the medical negligence law as follows:

Real test for determining deficiency in service

        I.            Whether there was exercise of reasonable degree of care? 

     II.            The degree of standard or reasonable care varies in each case depending upon expertise of medical man and the  circumstances of each case.  On this aspect, it would be worthwhile  to refer to the enunciation from Halsbury's Laws of England.

The degree of skill and care required by a medical practitioner is so stated in (pr.36, p.36, Vol.30, Halsbury's Laws of England, 4th Edn.) 

"The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Failure to use due skill in diagnosis with the result that wrong  treatment is given is  negligence. Neither the very highest  nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body  of adverse opinion also exists among medical men; nor is a practitioner necessarily negligent if he has acted in accordance with one responsible body of medical opinion in preference to another in relation to the diagnosis and treatment of a certain condition, provided that the practice of that body of medical opinion is reasonable."

 Medical profession has been brought under the Section 2(1) (o) of CPA, 1986. In a significant ruling in Vasantha P. Nair v Smt. V.P.Nair I (1991) cpj the national commission held a patient is a ‘consumer' and a medical assistance was a ‘service'. A doctor is held liable for only his acts (other than cases of vicarious liability). Vicarious liability arise in case of government hospital though doctor responsible but hospital has to pay the compensation.

It is well known that a doctor owes a duty of care to his patient. A doctor can be held liable for negligence only if one can prove that she/ he is guilty of a failure that no doctor with ordinary skills would be guilty of if acting with reasonable care. Supreme Court make it obligatory in  Parmanand Kataria vs. Union of India case  that "every doctor, at the governmental hospital or elsewhere, has a professional obligation to extend his services with due expertise for protecting life" .

Incidence of "medical negligence" can also decide bymedical council of india. Medical council of india is a statutory body deal with high standards of medical education and recognition of medical qualifications in India. It registers doctors to practice in India and promote the health and safety of the public. In many cases national commission accept the credibility of council's verdict  in medical negligence . Medical council of india guided by the Medical Council Act 1956.  But now days question raise relating to the working ability of medical council of india , PIL filed in the Supreme Court by "People for Better Treatment" (PBT) in 2000 (W.P. Civil No. 317/2000), it was unraveled  that the failure of the council to perform his duty.

Extended ambit of medical negligence

The National Commission as well as the Apex Court in catena of decisions has held that the doctor is not liable for negligence because of someone else of better skill or knowledge would have prescribed a different treatment or operated in a different way. He is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a reasonable body of medical professionals.

In Supreme court land mark decision Indian Medical AssociationVs V.P. Shantha and Others III (1995) C.P.J laid down certain guideline for medical negligence and  define efficiency of consumer protection. It has held certain exception like

• Service rendered to patient in (free of cost or charity) by a medical professional would not fall under the definition of ‘service' under consumer protection act1986.
• Service rendered by a doctor under contract of personal service was not covered in consumer protection act 1986.

Proof of negligence

The principle of Res-Ipsa-Loquitur has not been generally followed by the Consumer Courts in India including the National Commission or even by the Apex Court in deciding the case under this Act. The Hon'ble Supreme Court in the case of Dr. Laxman Balkrishna vs. Dr. Triambak, AIR 1969 Supreme Court page 128 has held the above view that  "All medical negligence cases concern various questions of fact, when we say burden of proving negligence lies on the Complainant, it means he has the task of convincing the court that his version of the facts is the correct one". In Sethuraman Subramaniam Iyer vs. Triveni Nursing Home and anr., 1998 CTJ7 National Commission held that expert opinion in medical negligence played an effective role.

Criminal negligence

Provision under the Indian Penal Code – Section 304A which covers acts of medical professionals. According to this whoever causes the death of the person due to negligence or a rash act, not amounting to culpable homicide, can be tried and suitably punished with imprisonment for 2 years or fine or both. Sections 52, 80, 81, 83, 88, 90, 91, 92 304-A, 337 and 338 all cover the acts of medical malpraxis.

A judgment in Jacob Mathew vs. State of Punjab in 2005 (6 SCC 1) has made profound impact in a backward direction for appropriate adjudication of medical negligence cases in India.  Supreme Court of India defined ‘criminal negligence' under this case and held that "to prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do".

A Bench of Mr. Arijit Pasayat and Mr. C.K. Thakkar observed that the words "gross negligence" or "reckless act" did not fall within the definition of Section 304-A IPC, defining death due to an act of negligence or the culpable homicide not amounting to murder.
Between Civil and Criminal liability of a doctor causing death of his patient the court has a difficult task of weighing the degree of carelessness and negligence alleged on the part of the doctor. For conviction of a doctor for alleged criminal offence, the standard should be proof of recklessness and deliberate wrong doing with a higher degree of morally blameworthy conduct.

Conclusion

Doctors should be more careful to perform their duties. Gross Lack of competency or gross inattention, or wanton indifferences to the patient's safety can only initiate a proceeding against a doctor .  Consumer dispute onle deal with compensation part. But its procedural aspect is too lengthy. It should disposed cases in speedy way. A healthy medical environment can create a great society.

Reference:

1. Jacob Mathew v. State of Punjab and another - 2005 SCCL.COM 456. Criminal Appeal No. 144-145 of 2004 decided by the Supreme Court on August 5, 2005
2. The Four Elements of Medical Malpractice". Yale New Haven Medical Center: Issues in Risk Management. 1997References
3. The Consumer Protection Act, 1986.
4. Indian Medical Association v VP Shantha AIR 1996 SC 550: 1995 (6)SCC 651, para 51, pp 678-79.
5. Ratanlal and Dhirajlal, Laws of Torts, 24th edition, 2002, edited by Justice G.P.Singh, pp 441 – 442.

DUTY OF CARE IN TORTS LAW, LIABILITY, FORESEEABILITY OF NEGLIGENCE, RECKLESSNESS, NUISANCE

Duty of care in Donaghue -v- Stevenson 1932 was defined as exercising such care as is due in such 'acts or omissions which you can reasonably foresee would be likely to injure persons so directly affected that you ought reasonably to have them in contemplation' and Caparo Industries -v- Dickman 1990 referred also to situations in which it would be fair, just, and reasonable to impose.

RELATED ARTICLES

Judicial interpretation of medical negligence under consumer protection

Criminal Negligence - Ignorance Is No Defense

Understanding Negligence in Injury Cases

Taking care of Claims of Accidents Victims

This duty is owed to one in physical proximity: e.g., in Haseldine -v - Daw 1941 to user of a lift negligently repaired, Buckland -v- Guilford Gas Light 1941 to child electrocuted by low cables upon climbing a tree, but not to a mother for shock nor for miscarriage to one who was to be who the driver and the rider could not to have known that were around in King -v- Phillips 1953 and Bourhill -v- Young 1942; or to one in legal proximity: e.g., in Donaghue -v- Stevenson 1932 for illness of consumer from manufacturer's drink purchased by another, but not if immune as public policy in Hill -v- Chief Constable 1988, or as barristers or judges - Saif -v- Sydney Mitchell 1980; or to one with blood-ties: e.g., in McLoughlin -v- O'Brien 1982 to a mother who by news of accident 'it was obvious that would be affected' ~it can be owed for financial loss in special professional relationships -Mutual Life Assurance -v- Evett 1971, for careless words not made clear as being without responsibility -Hadley Byrne -v- Heller & Partners 1964, and for serious nervous shock -Reilly -v- Merseyside RHA 1994.

The harm, additionally, if reasonably foreseeable is -Fardon -v- Harcourt 1932, negligence may entitle to damages, even punitive, Rookes -v- Bernard 1964, although if contemptuously claimed to as little as the smallest coin of the realm, e.g., without costs and nominal in Constantine -v- Imperial London Hotels 1944.

Circumstances in which a duty of care can be breached, except in the case of specific torts such as libel or trespass -or under the Rylands -v- Fletcher rule where lawfully but at one's own peril is made any unnatural use of land and excluding cases of immunity and circumstances where a statutory duty properly exercised infringes a right -such as the disturbance caused by the noise of aircraft taking of or landing - but not if improperly exercised: Fisher -v- Ruislip-Northwood UDC 1945, such circumstances may be even when a risk is know and not objected to: Smith -v- Charles Baker & Son 1891, indeed where a risk is known and has been consented to: Bowater -v- Rowley Regis Corp. 1944 ~even if there is contributory negligence: Stapley -v- Gypsum Mines Ltd 1953 -indeed even if despite instructions.

The standard is that of the 'reasonable man'; if injury was risked: Bolton -v- Stone 1951 ~6 times in 30 years meant not and the degree of the risk is proportional to the degree of care required; the seriousness of the injury risked too is proportional the degree of care necessary: Paris -v- Stepney BC 1951 -more so to employee blind in one eye, and not the amount but the type of the injury on the basis of: British Railways Board. -v- Herrington 1972; a social value whether justified the risk: in Fisher failure was not justified in war-time black-out to put up shaded lights to avoid public nuisance to a cyclist, in Watt -v- Hertfordshire CC 1954 getting the wrong vehicle on the scene of accident was justified by the valuable time that would have been lost in getting there help; the cost-benefit consideration: in Latimer -v- AEC 1953 to have done more than reasonable would have made the risk too remote in comparison -except if there is a statutory duty such as under the Health & Safety Acts; that standard in the case of an expert's negligence is, instead -Latimer, of a 'reasonable expert'. 
The link between the breach of duty and the resultant damage must be shown to exist as a matter of fact or a matter of law. The former is subject to the 'but for' rule: in Barnett -v- Chelsea etc. Hospital etc. 1968 breach by the failure of the doctor to call was not the caused of death, McWilliams -v- Sir Arrol 1962 failed because the safety-belt would not have been worn if supplied, in Cutler -v- Vauxhall motors 1971 the operation on a graze had already been ordered for an ulcer on the site of it and was a pre-existing condition; but, is not broken a causative link by a consecutive cause and did not lessen a subsequent injury the original factors in Baker -v- Willoughby 1970, nor necessarily disentitle multiple causes when on a balance of probabilities the link considerably was the reason: McGhee -v- National Coal Board 1973; where the harm or part of it is from a third party's breach the 'but for' rule still applies to whether he type of injury could have been seen: Hogan -v Betinck Colliers 1949.

The latter only applies if the breach is not too remote, and it was not in Wieland -v- Cyril Lord Carpets 1969 that the fall elsewhere and later had resulted from the necessity to discard bi-focal glasses caused by the driver's negligence; the special sensitivity of the claimant did not matter -'egg-shell skull' rule: Robinson -v- Post Office 1974 -'one must take the victim as he finds him'; in The Wagonmound 1961 at the time of the breach that oil spilled could burn on sea-water could not reasonably, and in Doughty -v- Turner Mfg. 1964 because of the state of knowledge, have been foreseen; but in Bradford -v- Robinson Rentals 1967 the frostbite was because of providing a van without a heater.

The claimant's proof can move to the defendant: Steer -v- Durable Rubber 1956; at least some evidence is necessary of negligence even if 'facts speak for themselves' -they can not if the claimant can not say what happened: Wakelin -v- LSWR 1886, negligence can be inferred from absence of explanation by defendant, for any by claimant by Law Reform (Contributory Negligence) Act 1945 proportionate reduction is made. 

Laws are subject to change, always ascertain current law.