Negligence

Question 1

What is negligence

Answer 1

The omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.

The infliction of damage as a result of the breach of a duty of care owed by the defendant to the plaintiff.

It encompasses the concept of duty, breach and damage suffered by the person to whom the duty was owed.

Question 2

What are the elements of negligence or what three things must be present before you say someone has been negligent of which if even one is absent, you can’t say person was negligent

Answer 2

There should be breech, duty of care and damage. These three things constitutes negligence.

A duty, recognised by law, requiring conformity to a certain standard of conduct for the protection of others;

Failure to conform to the required standard of care, i.e. breach;
and
Material injury resulting to the interests of the plaintiff due to the breach.

Thus, they are: duty, breach and damage

Question 3

State four examples of duty situations

Answer 3

Questions to ask yourself before saying someone is negligent;
Was there a duty situation?
Was there a breech of duty ?
Were damages inflicted on plaintiff?

First establish that there was a duty situation; and that in the circumstances; the defendant owed the duty to the plaintiff.
Where there is no duty situation, there can be no negligence.

Doctor – patient
Nurse – patient
Radiologist – patient
Lecturer – student
Driver - pedestrian

Duty situation: service provider and the person receiving the service. It must tally. A nurse doesn’t owe duty to a carpenter

Question 4

How do you test a duty situation or duty of care or duty to take care situation (to test means to examine whether the criteria for establishing duty of care are met)

Answer 4

The defendant should have foreseen the injury to the plaintiff or to a defined class of persons to which the plaintiff belongs.

Test of duty situation: should’ve foreseen it’ll harm patient or harm people in the class of that patients

One of the key criteria in determining duty of care is foreseeability. The defendant must have been able to foresee that their actions could potentially harm the plaintiff. If harm was not foreseeable, it would be unreasonable to hold the defendant accountable for the consequences of their actions.
3. Reasonableness: Testing for duty of care involves assessing whether the defendant’s behavior was reasonable

Question 5

Explain the neighbor principle (who is a neighbor)

Answer 5

Donogue v Stevenson
Per Lord Atkin: “…the rule that you are to love your neighbour becomes in law, you must not injure your neighbour …”
Neighbour in this context means persons who are closely and directly affected by one’s act that he ought to reasonably have them in his contemplation when directing his mind to the act or omission which is called into question
So in the case of a doctor to his patient, a patient will definitely be directly harmed or closely affected if he fools. The patient will always be his neighbor. Whoever you owe a duty of care to is your neighbor by default

The courts opinion that in accordance with changing social needs and standards, new classes of persons legally bound or entitled to the exercise of care may from time to time emerge.

Neighbour principle: have in mind that what you’re doing will cause harm to a person. Example you throw a stone while people are around. You’re supposed to have it in mind that you throwing the stone will harm the people or persons around you.
This principle is a popular question

Understanding the neighbor principle and its application in healthcare can be crucial for a medical school interview. Here’s how you might discuss it, along with sample questions and answers.

Neighbor Principle:
The neighbor principle, established by Lord Atkin in the case Donoghue v Stevenson (1932), states that individuals owe a duty of care to those who are closely and directly affected by their actions. In healthcare, this means that medical professionals must act with reasonable care to avoid harming their patients.

Question 1:
Interviewer: Can you explain the neighbor principle and how it applies to medical practice?

Answer:
You: The neighbor principle, articulated by Lord Atkin in the landmark case Donoghue v Stevenson (1932), is a foundational concept in tort law that establishes a duty of care owed to those who are closely and directly affected by one’s actions. In medical practice, this principle means that healthcare professionals must take reasonable steps to avoid causing harm to their patients. This duty of care extends to ensuring that treatments are safe, informed consent is obtained, and patient records are accurately maintained to prevent foreseeable harm.

Question 2:
Interviewer: Can you provide an example of how a breach of the neighbor principle might occur in a clinical setting?

Answer:
You: Certainly. For instance, if a physician prescribes a medication without reviewing the patient’s allergy history, and the patient subsequently suffers a severe allergic reaction, this could be considered a breach of the neighbor principle. The physician failed to take reasonable care to prevent harm, which could have been avoided by thoroughly checking the patient’s medical records. This scenario highlights the importance of diligence and thoroughness in medical practice to uphold the duty of care.

Question 3:
Interviewer: How would you ensure that you are meeting your duty of care as a future medical professional?

Answer:
You: To meet my duty of care as a future medical professional, I would prioritize comprehensive patient assessments, thorough documentation, and continuous education. Ensuring clear communication with patients, obtaining informed consent, and regularly consulting evidence-based guidelines are also essential steps. By staying vigilant and attentive to each patient’s unique medical history and needs, I can help prevent foreseeable harm and provide high-quality care.

1. Question:
   Discuss how the neighbor principle influences the ethical and legal responsibilities of a healthcare professional.Answer Outline:
   - Introduce the neighbor principle and its legal origins.
   - Explain how it establishes a duty of care in healthcare.
   - Discuss the ethical responsibilities tied to this duty, such as beneficence, non-maleficence, and respect for patient autonomy.
   - Provide examples of how healthcare professionals can uphold these responsibilities in daily practice.
   - Conclude with the importance of integrating ethical and legal considerations to ensure patient safety and trust.
2. Question:
   Evaluate the impact of effective communication on upholding the duty of care in medical practice.Answer Outline:
   - Introduce the concept of duty of care and its relation to effective communication.
   - Discuss how clear, empathetic, and thorough communication helps prevent misunderstandings and medical errors.
   - Use examples such as obtaining informed consent, explaining treatment options, and documenting patient interactions to illustrate the impact.
   - Analyze the role of communication in building patient trust and ensuring compliance with medical advice.
   - Conclude by emphasizing the critical role of communication in maintaining high standards of care and patient safety.

• Understand Key Concepts: Make sure you understand the neighbor principle and other foundational legal and ethical concepts in healthcare.
• Use Examples: Be ready to provide clear, concise examples to illustrate your points.
• Reflect on Personal Experience: If possible, relate your answers to any relevant experiences you have had, demonstrating your commitment to patient care.
• Stay Calm and Confident: Answer questions calmly and confidently, showing that you are thoughtful and well-prepared.

Question 6

Haynes vs harwood
It was held that a defendant who owed a duty to another also owed a duty to those who might foreseeably attempt to rescue him from the acute peril in which the defendant’s negligence had placed him.
Explain this

Answer 6

In the case of Haynes v Harwood [1935] 1 KB 146, the court held that a defendant who owes a duty of care to another person also owes a duty of care to those who might foreseeably attempt to rescue the person placed in danger due to the defendant’s negligence.

Key Points of Haynes v Harwood:

1. Facts of the Case:
   
   • The defendant left a horse-drawn van unattended in a busy street.
   • The horses bolted, creating a dangerous situation.
   • A police officer (the claimant) saw the peril and attempted to stop the horses to prevent injury to others.
   • The police officer was injured in the process.
2. Legal Issue:
   
   • Whether the defendant owed a duty of care to the rescuer, the police officer, who was injured while trying to mitigate the danger created by the defendant’s negligence.
3. Judgment:
   
   • The Court of Appeal held that the defendant owed a duty of care to the rescuer.
   • The rationale was that it was reasonably foreseeable (once it is foreseeable, there is a duty of care situation. The neighbor principle also comes into play here) that someone would attempt to intervene to prevent harm caused by the defendant’s negligence.
   • As such, the rescuer’s actions were a natural and probable consequence of the defendant’s initial negligent act.
4. Principle Established:
   
   • The principle of “rescue” in tort law was affirmed, establishing that those who negligently create a perilous situation are liable not only to the direct victims of their negligence but also to those who, foreseeably, attempt to rescue or mitigate the peril.

This case is often cited to illustrate the legal recognition of the “rescue doctrine,” which extends the duty of care to rescuers who, acting reasonably, put themselves in harm’s way to assist or save others from the dangers created by a defendant’s negligent actions.

Question 7

What is breech of duty of care

Answer 7

This concerns the conduct of the defendant and the standard of care imposed on him.
The standard required of the defendant is that of the reasonable man.
Breech of duty: if it is established that a reasonable person wouldn’t have done what you did then there’s a breech of duty

In effect, the defendant is deemed to have breached a duty of care to the plaintiff if he fails to live up to the required standard expected of him in the given circumstances.

Ordinarily, a required standard must be conformed to by the defendant; failure of which would imply a breach.

Question 8

Who is a reasonable man

Answer 8

The standard is not that of the defendant himself but of a man of ordinary prudence, a man using ordinary care and skill.
This eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question.
In effect, the standard is said to be an objective one.
Therefore it is not a defence for a young doctor to plead that he is inexperienced if he fails to attain the level of competence be expected of a doctor.

The “reasonable man” is a hypothetical person who acts with the level of care, prudence, and competence expected of someone in a given situation. This standard is:

1.	Objective: It doesn’t take into account the specific characteristics, skills, or knowledge of the defendant.
2.	Ordinary Prudence: Represents what an average person, using ordinary care and skill, would do in similar circumstances.
3.	Consistent: Eliminates personal variations and idiosyncrasies, providing a uniform standard for judging conduct.

Application in Medical Practice

In the medical context, the “reasonable man” standard is applied to healthcare professionals, holding them to the level of competence and care expected of an average, competent practitioner in their field. This means:

1.	Objective Standard: The standard of care is not based on the individual doctor’s personal level of experience or skill but on what is reasonably expected from any doctor with similar training and qualifications.
2.	Professional Competence: Young or inexperienced doctors cannot use their lack of experience as a defense. They are expected to provide the same standard of care as any reasonably competent doctor.
3.	Elimination of Personal Equation: The law requires that doctors meet established medical standards regardless of their personal capabilities or circumstances.

Clinical Scenario for Medical School Interview

Scenario:

A junior doctor performs a surgical procedure without adequately following the established protocols for sterilization. As a result, the patient develops a severe postoperative infection. The junior doctor claims that their inexperience should be taken into account as a defense.

Sample Questions and Answers

Question 1:
Interviewer: Can you explain the concept of the “reasonable man” and how it applies to this scenario?

Answer:
You: The “reasonable man” is a legal standard representing how an ordinary person, with ordinary prudence, would act in similar circumstances. This standard is objective and doesn’t consider the defendant’s personal attributes or experience. In the provided scenario, the junior doctor is held to the standard of what a reasonably competent doctor would do. Inexperience is not a valid defense; the doctor is expected to follow established protocols and provide care at the level expected of any competent practitioner. Failing to do so constitutes a breach of duty of care.

Question 9

Jeweler pierced someone’s ear who was buying jewelry and the person got an infection. Jeweler was sued.
What was the decision of the court with regards to negligence

Answer 9

If a duty situation is not established, there is no negligence because there won’t even be breech of duty

The plaintiff had her ears pierced by a jeweller in order to wear ear-rings and subsequently suffered an abscess that might have been avoided had the work been done with normal medical skill by a qualified surgeon.

In the slide about the jeweler and buyer, the jeweler had a duty of care to the buyer to just sell jewelry to her and use his skill as a jeweler to pierce her ear. He wasn’t found at fault

Facts

The claimant went to have her ears pierced at the defendants’ jewellers. Prior to the piercing, the jeweller washed his hands and sterilised his instruments in a fire and lysol. More than two weeks later, after spending time in a nursing home for a major surgery, the claimant developed an abscess. The abscess was due to an infection which had entered her body through the hole in her ear. The claimant sued the defendant in negligence.

Issue(s)

1. Had the jeweller breached the duty of care owed to the claimant?
2. Had the jeweller’s actions caused the infection?

Decision

The High Court held in favour of the defendant. The jeweller had not breached his duty of care to the claimant: he had taken perfectly reasonable precautions against infection. In any case, the claimant could not prove that the defendant was responsible for the infection. It was more likely that the infection entered her ear at a later date.

This Case is Authority For…

Jewellers are not required to take the same precautions as medical surgeons when piercing ears to comply with their duty of care. They need only take those precautions thought necessary by reasonable jewellers.

The jeweller was required only to show the skill of a jeweller doing such work not that of a doctor.

Question 10

State and define five factors to consider under breech of duty. Or what five factors can you use to determine whether someone has breeched the duty or care or not

Answer 10

Likelihood of injury or foreseeability of harm-The more dangerous the activity, the greater the degree of care required.
A person cannot be said to have breached his duty in respect of an injury which is so unlikely that the reasonable man will not provide against it. So if you’re unable to foresee the likelihood of harm going to be done based on medical knowledge and standards at the time,you won’t be able to prevent the foreseeable risk from happening so you won’t be negligent

Magnitude or seriousness of the risk or harm-
The law requires a degree of care which is commensurate with the seriousness of injury risked.

Importance of the act-

Where the object to be achieved is of national importance or social benefit, the courts lower the standard of care.

Difficulty in averting the foreseeable harm-

Where there is a great risk which no precautions can substantially reduce, the duty of care may be discharged only by ceasing the dangerous operations altogether.
Where the risk is slight, slight precautions will suffice

Whether the act complies with approved practice-The defendant may generally support his claim to have shown due care by showing that he conformed to the common practice of those engaged in the activity in question.
Thus, proof of conforming to the practice of a profession will often be conclusive in claims against professionals.

Question 11

Case study for magnitude or seriousness of the risk

Answer 11

Paris v. Stepney Borough Council [1951] 1 All ER 42 is a landmark case in English tort law that addresses the duty of care employers owe to their employees, especially when the employee has a known vulnerability.

In this case , the more serious the damage that would happen if an accident occurred, the more thorough were the precautions which an employer must take.

In effect, an employer must take into account any particular susceptibility of the employee of which he is or ought to be aware.

Key Points of Paris v. Stepney Borough Council:

1. Facts of the Case:
   
   • The claimant, Mr. Paris, was employed by Stepney Borough Council as a garage hand.
   • Mr. Paris had previously lost the sight in one eye, a condition known to his employer.
   • During his work, he was not provided with safety goggles and subsequently suffered an injury to his good eye, resulting in complete blindness.
2. Legal Issue:
   
   • The central issue was whether the employer had breached its duty of care by not providing safety goggles to an employee with a known vulnerability.
3. Judgment:
   
   • The House of Lords held that Stepney Borough Council was negligent.
   • It was recognized that while there might be no general duty to provide goggles to all employees, there was a higher duty of care towards Mr. Paris because of his known condition (partial blindness).
   • The employer should have taken additional precautions given the greater risk and potential severity of harm to Mr. Paris.
4. Principle Established:
   
   • The decision established that the standard of care required of an employer can vary depending on the circumstances and the particular vulnerabilities of an employee.
   • Employers must consider individual employee’s specific conditions and take appropriate measures to mitigate foreseeable risks, especially when the potential consequences of an injury are significantly higher for the individual.
5. Impact:
   
   • The case highlights the importance of taking into account the specific risks to employees with known vulnerabilities.
   • It reinforces the principle that the duty of care is not a one-size-fits-all standard but must be tailored to the particular circumstances and risks faced by each employee.

In summary, Paris v. Stepney Borough Council underscores the need for employers to be vigilant about the individual health and safety needs of their employees, especially those with known vulnerabilities, and to provide appropriate protective measures accordingly.

Question 12

Case study for importance of the act under breech of care

Answer 12

Daborn v. Bath Tramways Motor Co. Ltd. [1946] 2 All ER 333 is an important case in English tort law that deals with the standard of care and the concept of reasonableness, particularly in the context of wartime conditions.

In the end :
The Court of Appeal found that converting the left-hand drive vehicles would have been prohibitively difficult and expensive. By providing an ambulance service during wartime, the defendant was acting in public interest and this value to society meant that there was a lower standard of care required.

Key Points of Daborn v. Bath Tramways Motor Co. Ltd.:

1. Facts of the Case:
   
   • The claimant, Daborn, was driving a left-hand-drive ambulance during World War II, which was provided by the government for civil defense purposes.
   • While attempting to make a turn, Daborn collided with a tram owned by Bath Tramways Motor Co.
   • The defendant argued that Daborn was negligent for driving a left-hand-drive vehicle in England and not signaling properly.
2. Legal Issue:
   
   • The main issue was whether Daborn had breached her duty of care by driving a left-hand-drive vehicle without proper signaling, considering the wartime context and the purpose of the vehicle.
3. Judgment:
   
   • The Court of Appeal held that Daborn was not negligent.
   • Lord Justice Asquith emphasized that the standard of care must be adapted to the circumstances. Given the wartime conditions and the importance of the ambulance for civil defense, the court found that it was reasonable for Daborn to drive the left-hand-drive vehicle.
   • The judgment recognized that the utility of the ambulance’s use during wartime outweighed the potential risks associated with it.
4. Principle Established:
   
   • The case established that the standard of care required in negligence must consider the context and purpose of the defendant’s actions.
   • The principle of “balancing the risk” was emphasized: the greater the social utility of the activity, the more lenient the standard of care may be.
   • Reasonableness is key, and what constitutes reasonable care can vary depending on the situation, especially during exceptional circumstances like war.
5. Impact:
   
   • The case highlights the importance of context in determining negligence and supports a flexible approach to the standard of care, adapting to the needs and conditions of the time.
   • It underscores that the courts will consider the broader implications and benefits of an action when assessing whether the defendant acted reasonably.

In summary, Daborn v. Bath Tramways Motor Co. Ltd. illustrates that the standard of care in negligence is not fixed but must be assessed in light of the specific circumstances, including the social utility of the defendant’s conduct.

Question 13

Case study for difficulty averting foreseeable harm under breech of care

Answer 13

The plaintiff injured his ankle after slipping on an oily floor in the defendant’s factory. The oily floor was due to water damage from an exceptionally heavy storm. The defendant had put up warning signs, informed staff of the dangers and used all available sawdust and sand to soak up liquid. The issue for the court was whether the defendant had taken all necessary precautions.

In the end the court decided that: The defendant had taken all reasonable steps to prevent an accident in the circumstances. The only alternative would have been to close the factory, which was not a practical or reasonable solution.

Question 14

Case study for Whether the act complies with approved practice under breech of care

Answer 14

specific country can influence the determination of negligence.

For approved practice:
The defendant must however show that the approved practice from another country is reasonable.
The reasonableness or otherwise of the conduct is based on circumstances prevailing at the time of the act – Roe v Minister of Health.

Key Points of Whitehouse v. Jordan:

1. Facts of the Case:
   
   • The plaintiff, a patient, claimed that a specialist failed to diagnose their medical condition properly.
   • The specialist employed the standard diagnostic methods used by British medical professionals at the time.
   • It was argued that using diagnostic instruments commonly used in the United States might have led to a correct diagnosis.
2. Legal Issue:
   
   • The central issue was whether the specialist’s failure to use diagnostic methods or instruments that were not standard practice in the UK, but were in the US, amounted to negligence.
   • The court had to determine if adhering to local medical standards was sufficient to meet the duty of care required of a specialist.
3. Judgment:
   
   • The court held that the specialist was not negligent.
   • It was determined that the specialist had acted in accordance with the normal methods and standards of British medical practice at the time.
   • The court emphasized that adherence to the accepted practices and standards within the specialist’s country is a key factor in determining negligence.
4. Principle Established:
   
   • The principle established in this case is that medical professionals are generally expected to conform to the standards and practices that are customary in their own country.
   • The use of different methods or instruments in other countries does not necessarily set a benchmark for negligence if those methods are not widely accepted or practiced in the professional’s country.
5. Impact:
   
   • This case reinforced the idea that the standard of care in medical negligence is largely determined by the customary practices within the relevant medical community.
   • It underscored the importance of context in assessing professional conduct and set a precedent for evaluating medical negligence based on local standards.

In summary, Whitehouse v. Jordan illustrates that a specialist is not necessarily negligent if they adhere to the standard methods of practice in their own country, even if alternative methods used elsewhere might have yielded different results. This case is significant in understanding how the duty of care is contextualized within the geographical and professional norms of medical practice.

Question 15

Once you can establish a duty situation and there was breech of duty of care, what’s the next and last thing to consider in negligence

Answer 15

Once a duty situation has been established and a subsequent breach results, the plaintiff ought to prove some form of damage or injury which can be traced to the breach of duty.

Question 16

Name five things that constitute harm

What is the test for nervous shock

Answer 16

Economic loss, where appropriate
Harm to persons (physical injury) – any pain or suffering due to the breach.
Harm to rescuers
Physical damage to property
Nervous shock/ psychiatric harm – harm far in excess of ordinary grief or distress

The test for nervous shock is whether it is reasonably foreseeable that injury by shock would arise from the defendant’s negligence

Question 17

Case study for Test for liability of shock under damages

Answer 17

Test for liability of shock is being able to foreseeability of injury by the shock

King v. Phillips [1952] 2 All ER 459 is a significant case in English tort law that deals with the issue of foreseeability and the duty of care, particularly in the context of nervous shock (now referred to as psychiatric injury).

Key Points of King v. Phillips:

1. Facts of the Case:
   
   • The plaintiff, Mrs. King, was a mother who suffered psychiatric injury after witnessing an incident involving her son.
   • Her son was riding his tricycle when it was run over by a taxi backing out of a driveway. The son was not injured, but Mrs. King witnessed the event from a distance and suffered shock and nervous illness as a result.
2. Legal Issue:
   
   • The main issue was whether the taxi driver owed a duty of care to Mrs. King to prevent psychiatric injury and whether her injury was a foreseeable consequence of the driver’s actions.
3. Judgment:
   
   • The Court of Appeal held that the taxi driver did not owe a duty of care to Mrs. King in respect to her psychiatric injury.
   • The court reasoned that the injury to Mrs. King was not a reasonably foreseeable consequence of the taxi driver’s actions. The driver could not have anticipated that his actions would cause psychiatric harm to a person who was not in the immediate vicinity of the accident.
4. Principle Established:
   
   • The case established that for a defendant to be held liable for causing psychiatric injury, the injury must be a foreseeable result of their actions.
   • The concept of foreseeability is crucial in determining the scope of the duty of care. The court must consider whether a person of ordinary fortitude would reasonably foresee the risk of psychiatric injury under the circumstances.
5. Impact:
   
   • King v. Phillips is a key case in the development of the law relating to nervous shock and psychiatric injury.
   • It reinforced the requirement of foreseeability as a threshold for establishing a duty of care, especially in cases involving psychiatric harm.
   • The case contributes to the broader framework for assessing claims of psychiatric injury, which includes considerations of proximity, relationship to the primary victim, and the nature of the incident witnessed.

In summary, King v. Phillips emphasizes the importance of foreseeability in determining the duty of care for psychiatric injury claims. It underscores that a defendant cannot be held liable for psychiatric harm unless it is a reasonably foreseeable consequence of their actions.

Question 18

Second Case study for Test for liability of shock under damages

Answer 18

Dulieu v. White & Sons [1901] 2 KB 669 is a foundational case in English tort law that established important principles regarding the recovery of damages for nervous shock (now referred to as psychiatric injury).

Key Points of Dulieu v. White & Sons:

1. Facts of the Case:
   
   • The plaintiff, Mrs. Dulieu, was behind the bar in her husband’s public house when a horse-drawn van, driven negligently by the defendants, crashed into the premises.
   • Although Mrs. Dulieu was not physically injured, she suffered severe shock and subsequently gave birth prematurely, resulting in a stillbirth and other health complications.
2. Legal Issue:
   
   • The primary issue was whether Mrs. Dulieu could recover damages for the psychiatric injury caused by the shock, even though she did not suffer any physical harm.
3. Judgment:
   
   • The Court of King’s Bench held that Mrs. Dulieu could recover damages for the psychiatric injury.
   • The court recognized that nervous shock resulting in psychiatric harm could be a legitimate ground for compensation, even in the absence of physical injury.
4. Principle Established:
   
   • The case established that damages could be recovered for psychiatric injury if the plaintiff was within the “zone of danger,” meaning that the plaintiff was in immediate fear for their own safety.
   • This case marked a significant departure from the previous legal position, which often required a physical injury to accompany claims for psychiatric harm.
5. Impact:
   
   • Dulieu v. White & Sons is a landmark case that paved the way for the development of the law regarding psychiatric injury in negligence cases.
   • It set a precedent for recognizing psychiatric harm as a compensable injury, provided the plaintiff’s fear for their own safety was reasonable and directly resulted from the defendant’s negligent actions.
   • The case contributed to the broader framework for assessing claims of psychiatric injury, including considerations of proximity to the event and the foreseeability of harm.

In summary, Dulieu v. White & Sons is a seminal case in tort law that established the principle that plaintiffs could recover damages for psychiatric injury caused by negligent conduct, even in the absence of physical injury, provided they were within the “zone of danger.” This case laid the groundwork for the modern understanding and treatment of psychiatric injury claims in negligence law.

Question 19

What is “Res ipsa loquitur” with regards to medical ethics?
What will make this principle valid?

Answer 19

it is a Latin phrase that means “the thing speaks for itself.” It’s often used in legal contexts to describe situations where the facts or circumstances are so obvious that they speak for themselves, without the need for further explanation.

The burden of establishing that the defendant’s negligence resulted in the plaintiff’s loss or injury rests on the plaintiff.
In some cases, the plaintiff actually knows what happened but may fail to prove that the facts proved constituted negligence.

Sometimes all the patient will know is that he was hurt but it he won’t know how he was hurt. In this case, he can raise the principle of res ipsa loquitur.
Thus, the doctrine requires that the means of causing the negligence was totally or peculiarly within the knowledge or control of the defendant who caused it. This will make the principle being used in the particular case, valid.

J The thing speaks for itself,” a doctrine of law that one is presumed to be negligent if he had exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence, the accident would not have happened.

(This is very serious. This is why you have to involve everyone in the treatment process including the patient and relative cuz if something bad happens right now, they will have knowledge of what went wrong and they won’t be able to raise res ipsa loquitur. )

Question 20

What conditions must be met for res ipsa loquitur to be valid

Answer 20

For example, if while under anaesthesia, a patient’s nerve in her arm is damaged although it was not part of the surgical procedure, and she is unaware of which of a dozen medical people in the room caused the damage, under res ipsa loquitur all those connected with the surgery are liable for negligence.

Conditions that must be met:
1.Absence of explanation.
2.The resulting harm must be of such a kind that it does not ordinarily happen if proper care is taken.
3.The object causing the accident must be within the exclusive control of the defendant.

Question 21

What is contributory negligence as a defense to negligence

Answer 21

Contributory negligence
This defence is a doctrine of law that if a person was injured in part due to his own negligence (his negligence “contributed” to the accident), the defendant would only be partially liable for the harm caused.

When contributory negligence is successfully pleaded, the court may apportion the damages, deduct the contribution of the plaintiff and get the rest from the defendant.

Question 22

How do you prove contributory negligence as a defense to negligence

Answer 22

1.The injury of which the plaintiff complains results from that particular risk to which the negligence of the plaintiff exposed himself;
2.The negligence of the plaintiff contributed to his injury, and
3.There was fault or negligence on the part of the plaintiff.

Question 23

What is Volenti non fit injuria

Answer 23

Voluntary assumption of risk.
It is an absolute defence for if successful, it prevents the plaintiff from recovering anything for the defendant’s breach of duty.
Must be proved that the plaintiff freely and voluntarily with full knowledge of the nature and extent of the risk he ran, expressly or impliedly agreed to incur it.