Case Study Claim For Damages In Negligence Scenario Law Essay

Case Study Claim For Damages In Negligence Scenario Law EssayIn seeking to efficaciously pop the question Steve and Tina in tattle to whether they go for a claim/claims for damages arising kayoed of the f work bys of this scenario for negligence, it is necessary to look to deal with the evidentiary aspects that argon considered to be problematic with the claim. As a result, this allow involve looking to provide for recognition of the evidence that both(prenominal) Steve and Tina would be required to present (including each carve upicular witness evidence) related to the pack for in that respect to be a recognised affair of c atomic number 18 that was breached that was proximate leading to a recognised harm in fact so as to accordingly be able to serve to substantiate each of their claims as they arise.Moreover, at that place is alike a need to look to comment on as to how sure-fire Steve and Tinas claims would be in looking to take account of the evidence that is av ailable on with any defences that may possibly be levied on the facts. With this in mind, this gist that it is necessary in advising Steve and Tina to look to analyse the facts as they are presented and give reasons for the view that is pr one(a) whilst also referring to any relevant case law and/or legislative provisions as and when and where they are considered to be applicable in relation to each of the points made individually and collectively.Finally, this essay provide look to resolve with a summary of the key points that live been derived from this discussion with a view to then advising Steve and Tina with regard to as to whether they have a claim/claims for damages arising fall out of this scenario as it is presented on the facts.First, with a view to effectively advising Steve and Tina, there is a need to show an understanding of the fact that, whilst the burden of proof in a given case is dependent upon the circumstances that lead to the particular claims arising on the facts.However, in the case of civil actions for damages, much(prenominal) as those arising on the facts of this scenario that Steve and Tina are straightway looking to claim for, the burden of proof normally falls upon the party that is affirming something to be the case (i.e. Steve and Tina) and non upon the party that is looking to make a demurral (i.e. the other parties that are involved on the facts).1Nevertheless, it is also to be appreciated that, by majority, the House of Lords recognised in the case of Re H Others2that, the much serious an allegation was that was made on the facts, the less likely it was going to prove to be true so there was a need for stronger and more weightier evidence to be provided to prove it in the circumstances.On this basis, the legal burden falls upon Steve and Tina for establishing the essential elements of their respective claims for damages for negligence on the basis of the facts of this scenario and advise Steve and Tina accord ingly. Therefore, Tina and her husband Steve (who was driving) were going along a lane in the country one summers evening at 8.00pm beside North Berwick to their favourite restaurant The Crusty shout for a meal whose entrance is also an exit and consists of a very sharp blind bend that is used by both goods and customer vehicles.The hassle is that as Steve approached the entrance to the restaurant car park at The Crusty Crab, he slowed down, but confidently took the bend worried that they would be late for their flurry booking since they were concerned that it might be given away but, as he destroyed the restaurant grounds, he collided with a large Heavy Goods Vehicle (HGV) that was reversing out onto the lane.Therefore, in advising Steve and Tina regarding their claims for negligence against the other parties involved on the facts and the evidence as it stands, it is to be appreciated that the recognition of a duty of care is ostensibly a legal obligation that is usually plac ed on an individual like Steve (who was driving), the HGV driver, the owners of The Crusty Crab, and Dr Bill so they must adhere to a reasonable quantity of care to avoid foreseeable harm to others. This effectively means it is for the plaintiffs (i.e. Steve and Tina) to articulate a duty of care which one or more of the suspects has breached to proceed with a negligence claim because breaching a duty of care may subject them to liability.3In addition, there is also a need to articulate what is understood in relation to evidence of the duty of care in the claims brought against the defendant in any given case who is found to be in breach of such a duty of care in the face their conduct has fallen short of the standard they were expected to meet respectively in the circumstances. Generally, any defendant like Steve, the HGV driver, the owners of The Crusty Crab needs to provide evidence with a view to then meeting the standard of what is considered aspirational for a reasonable ma n4 essentially revolved around the idea the standard of objectivity expected is based on what could be expected of a reasonable person because perfection tin cannot be expected.5On this basis, it is necessary to advise Steve and Tina that there depart be a need to consider whether Steve and the HGV drivers actions are in keeping with the actions of reasonable people on the facts and also as to whether the owners of The Crusty Crab were reasonable in having a blind entrance and exit used by both customer and goods vehicles.Ostensibly, Steve and Tina get out be advised that the court must first consider what the defendants knew so that the witness statements of the parties will conk of great significance because, to illustrate the point, it was found in the case of Roe v. Minister of Health6that a defendant will yet be liable if a reasonable person would have also foreseen the loss or damage in the circumstance.However, it is also to be appreciated that the eggshell skull rule re cognises a victim of harm should be taken as they are found so if they have a particular unknown defect that makes them more susceptible to injury than the person inflicting the injury can motionlessness be held liable.7In addition, it is also necessary to advise Steve and Tina in relation to the degree of risk because it has come to be understood that the greater the risk that is involved with a particular activity, the greater the precautions that were needed on the facts.8This effectively means that it will have been necessary to look to see whether the entrance and exit at The Crusty Crab was effectively delineated in view of the fact that it was a blind turn, as to whether the HGV driver had his warning lights on and reversing warning form enabled and was also driving slowly and with due care and attention.More importantly, however, there is a need to note that the driver of the HGV actually had what is considered to be adequate round space on the evidence of the facts as t hey stand to turn the vehicle in the car park of the restaurant as opposed to reversing out so that he would have had more awareness of other road users in the way that most other people would have done when faced with the uniform situation.Similarly, Steve and Tina need to be advised that, when looking to enter the car park, it is open to question as to whether Steve was driving with due care and attention and was looking to enter the car park at The Crusty Crab on the basis of the facts as they stand here. It is then necessary for the court to look to consider how applicatory these precautions were in advising Steve and Tina since, for example, in the case of Wilson v. Governor of Sacred Heart Roman Catholic Primary School9a primary school was deemed not absent for not employing someone to supervise the playground after the close of school hours so the test for how practical precautions are is about looking to strike a balance of reasonableness of precautions against foreseea ble injury.Moreover, there is a need to evaluate the social importance of a defendants activity because in the event that a defendants actions are deemed socially useful they may then be considered nearified for taking greater risks10 although that is supposed(prenominal) to be the case here. Finally, in effectively advising Steve and Tina there is a need to evaluate as whether there is any common practice in relation to the acts and slights of each of the given defendants on the evidence.This is because it has been recognised that, in the event that a defendant in a given case is found to have complied with common practice in their activity, they will usually be considered to have met a reasonable standard, unless the court considers the practice inattentive.11At the same time, however, in advising Steve and Tina with regard to the claims brought there is a need to consider the matters of proximity and remoteness in relation to whether there enough evidence to show the events t ranspired are considered sufficiently related to a legally recognisable injury to be its cause through the consideration of causation in terms of the but for test and proximate cause.The but for test is on the fact a defendant will only be liable where the claimants injuries would not have occurred but for their negligence i.e. the HGV driver, the owners of The Crusty Crab, and Stevel although the defendant will not be deemed liable if the damage would, or could, on the balance of probabilities have occurred anyway because the loss or injury sustained by Steve and Tina must not be too remote to ensure any liability is fairly placed on the right defendant.12Therefore, the issue of causation in relation to Steve and Tinas claim for damages for negligence primarily relates to the causal relationship between conduct and result to connect conduct, complete with actus reus, with the resulting harm13in a concerted effort to produce results that are generally considered to be both just a nd fair in their nature.14Steve and Tina also need to be advised with regard to as to whether Dr Bills activities as a third party in providing the twain with medical interposition at the hospital effectively serves to break the chain of causation regarding the acts of the other potential defendants.With a view to making a decision, this is mostly dependent upon whether the intervention in question was foreseeable with the general rule being that the original defendant will be held responsible for harm caused by a third party so long as it was a highly likely occurrence.15In advising Steve and Tina in this regard there is a need to consider whether there is a Novus Actus Interveniens (i.e. a new act intervening) and is thus considered a general defence in the law of tort.This is because a third partys act (like that of Dr Bill) will serve to intervene between the original act or omission and the damage produced as a result, unless that original act or omission is still considered the main contributing factor to the damage because the act of the third party had no impact upon the events as they unfolded.16This is because this could amount to a third partys inadvertent contribution since, for example, in R v. Cheshire17the victim was shot and taken to hospital where he suffered pneumonia and other respiratory problems and was placed in intensive care where he was given a tracheotomy but still later died.The court found there was an element of medical negligence because the tracheotomy the unhurried had been given caused a thickening of the patients tissue leading to his suffocation. As a result, Lord Justice Beldam established the following test that recognised Even though negligence in the treatment of the victim was the immediate cause of his death, the jury should not regard it as excluding the responsibility of the accused unless the negligent treatment was so independent of his acts, and in itself so potent in causing death, that they regard the contri bution made by his acts as in operative.18At the same time, however, in effectively advising Steve and Tina it is to be appreciated that, whilst there may have been an element of contributory negligence related to Steves injuries (in the accident he sustains whiplash injuries to his neck and bruising to his boob caused by the impact of his seatbelt) if the evidence shows that he was failing to fulfil his duty of care to drive with due care and attention in the interests of his passenger (i.e. Tina) and other road users (i.e. like the HGV driver), Tina may also have contributed to her own injuries.This is because of the fact that, seconds before the vehicles collided, Tina took off her seatbelt in anticipation of getting out of the car quickly to rush into the restaurant because of being late for their reservation so as to sustain similar, but more serious, whiplash injuries to Steve.As a result, as a victim, Tina effectively contributed to her own injuries illustrated by the decis ion in the case of R v. Dear.19In this case on the facts a man, believing the victim had sexually interfered with his daughter, attacked the victim with a knife. The defendant then argued the chain of causation had been broken because the victim later committed suicide so it became necessary to determine whether the injuries inflicted by the defendant were a significant cause of, or contribution to, the victims death. Nevertheless, as to whether the resumption or continuation of that bleeding was deliberately caused by the victim, the defendants conduct remained the most significant cause of death.20.As for the matter of Steve and Tina being taken to the local hospital, Steve and Tina also need to be advised in relation to their treatment by a junior doctor, Bill, (inexperience is no defence so a junior module member should always seek help from a more experienced staff member21) who has just read an article in a medical journal about a new and experimental treatment using stylosti xis for whiplash injuries pen by the Chairman of the Acupuncture Society, Dr. D. Odgy.The Acupuncture Society involves a group of doctors who support the use of acupuncture as much as possible in the treatment of common road traffic injuries and so, on the basis of the aforementioned article, Bill treats both Steve and Tina with acupuncture. As a result of this treatment, their injuries become worse so that both Steve and Tina have to return to hospital 3 weeks later to be treated conventionally when they then feel much discover and recover within days. Steve and Tina need to be advised that this is effectively an example of medical negligence perpetrated by Dr Bill.This is because, as paid people, medical personnel are held ready to give medical advice or treatment so someone like Bill also impliedly undertakes they are possessed of skill and knowledge for a purpose equivalent to any reasonable practitioner and cannot be held to the same standard as an ordinary person.22This ef fectively means that the standard of care becomes what can be expected of a similar reasonable professional doctor like Bill a special standard of care.23Therefore, as to whether or not someone like Bill is a registered medical practitioner,24it is also to be appreciated in advising Steve and Tina that someone like Bill who is consulted by a patient is commonly considered to owe them a duty of care on the basis of the recognition of the evidence on the facts since that is what they are trained to do in recitation reasonable care and skill in diagnosing, advising and treating them25and them alone.26As a result, Steve and Tina need to be advised that a breach of this duty of care on the part of Dr Bill to Steve and Tina causing an exasperation of their personal injury claims will serve to support a claim for negligence on the facts by the patient along with some compensation for any financial loss accrued on this basis.27In advising Steve and Tina, however, there is a need to recogn ise that an error of judgment will not necessarily amount to a claim for damages for an act of negligence on the part of Dr Bill unless it would not have been made by a reasonably competent practitioner acting in keeping with an ordinary duty of care that is judged against the current state of professional knowledge28or where there are differing and well-established professional schools of thought.29This is because, as has already been recognised, Dr Bill had just read an article in a medical journal about a new and experimental treatment using acupuncture for whiplash injuries written by Dr. D. Odgy as Chairman of the Acupuncture Society that involves doctors who support the use of acupuncture in the treatment of common road traffic injuries.However, on the basis of the available evidence, Steve and Tina need to be advised that the treatment that was administered to them by Dr Bill will be held to be negligent. Therefore, this would serve to make him and potentially the hospital al so vicariously liable as Dr Bills employer if it cannot be shown to the courts satisfaction the opinion relied upon is reasonable or responsible30unless (i) there is a practice normally and usually utilised (ii) the defendant has not adopted it and (iii) the course of action is one that no professional of ordinary skill would have taken had they been acting with ordinary care.31To conclude, having sought to advise Steve and Tina in relation to whether they have a claim/claims for damages arising out of the facts of this scenario, it is to be appreciated that it has been necessary to look to consider what is ostensibly involved with a successful claim for damages for negligence against each of the defendants as they are identified on the facts.To this effect, as has already been recognised, there is a need for Steve and Tina to make successful claims for negligence on the basis of their being (i) a duty of care (ii) with a breach of that duty (iii) that was proximate and not too rem ote (iv) leading to recognised harm in fact.32On this basis, it would seem problematical that it is possible for Steve and Tina to look to raise claims for damages for negligence against the HGV driver, the owners of The Crusty Crab restaurant and Dr Bill (along with a claim against Steve by Tina although this may be unlikely as it will most likely depend on the nature of their relationship and as to whether Tina blames him in anyway).But at the same time there is also a need to appreciate that, in advising Steve and Tina, both of them may have actually contributed to their own injuries in view of the fact that Steve may have breached his duty of care by driving without due care and attention and the fact that Tina released her own seatbelt before the car that Steve was driving in came to a halt.In addition, it is arguable that there was a novus actus interveniens in this case that only served to further exacerbate the injuries that both Steve and Tina sustained that may also serv e to be a case of medical negligence. This is because, in looking to treat Steve and Tina at the hospital, Dr Bills treatment of them actually served to make their injuries somewhat worse and he would thus be considered negligent along with the hospital vicariously unless (i) there is a practice normally and usually utilised (ii) the defendant has not adopted it and (iii) the course of action is one that no professional of ordinary skill would have taken had they been acting with ordinary care.33The reason for this is that, as has already been recognised in the advice provided to Steve and Tina, Dr Bill had just read an article in a medical journal about a new and experimental treatment using acupuncture for whiplash injuries written by Dr. D. Odgy as Chairman of the Acupuncture Society that involves doctors who support the use of acupuncture in the treatment of common road traffic injuries and based their treatment on this.