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negligence in tort

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Introduction

LW1008 OBLIGATIONS 1 Negligence in tort has various meanings. It may refer to the tort of negligence or it may refer to careless behaviour. A person who totally disregards the safety of others but does not injure them is not guilty of negligence, although they may be morally reprehensible. On the other hand, the person who tries their best but fall below the standard set by the court and causes any damage will be liable.1 Negligence is judged by an objective standard set, where the court will look at what a 'responsible man or woman' would have done in the defendant's position. An example of this is in the case of Nettleship v Weston (1971)2 , the defendant was a learner driver who was given lessons by the plaintiff. The plaintiff was injured as a result of the defendant's negligent driving. It was held that all drivers, including learning drivers, would be judged by the standards of the average competent driver. Duty, breach, causation and damage are the elements that together make up any successful negligence claim. If the claimant wants to win in a negligence action, some certain points must be proven such as that the defendant owed them a duty of care; that the defendant was in breach of that duty; and that the claimant suffered damage caused by the breach of duty, which was not too remote. ...read more.

Middle

If negligence is alleged against a general practitioner, the claimant can sue the doctor directly, as general practitioners are independent. If the patient has been referred to a hospital or has been admitted for emergency treatment. They may be able to proceed against the negligent individual, the relevant health authority or both. The negligence action against a doctor is no different to any other negligence case. The claimant must prove that a duty of care was owed to them, that this was broken and that reasonably foreseeable damage was caused as a result. The question of whether duty of care exists is not in dispute. The only problem is what the duty is, i.e. what did the doctor undertake to do, and when the duty came into existence. Dr Green has fallen below the standard of care required of him. As Dr Green was a junior doctor, he would still be expected to comply with the duties of a doctor. Shamilla was Dr Green's patient and so he had a duty towards his patient to look after him and give him the right treatment. Dr Green was expected what a reasonable doctor would do in the situation. ...read more.

Conclusion

Where the damages claimed by the claimant consist of or include a claim for damages or personal injuries, the limitation period is three years under section 11 of the Limitations Act 1980. However, in Cartledge v E Jobling & Sons Ltd (1963), the plaintiff contracted pneumoconiosis as a result of the defendant's breach of duty. He did not know he had the disease until well after the three-year time period has expired. It was held that his action was statute barred. The damage occurred when the lung issue was scarred, although a medical examination might not have revealed the damage at that stage. The obvious injustice of this decision was almost immediately reversed by statute (now the Limitation Act 1980 s 11(4)). This allowed the plaintiff to claim within three years of the date of knowledge. Knowledge may either be actual or constructive (s 14 (3)). If the claimant has symptoms of an illness and fails to seek medical advice, then they will have constructive knowledge. However, if they have sought medical advice but the doctor has failed to ascertain the appropriate facts and diagnose the condition, and then time will not run out against them. The court is given a power to disapply the provisions relating to personal injuries or death (s 33). ...read more.

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