• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

'The existence of a duty of care is ultimately a question of policy'. Discuss.

Extracts from this document...

Introduction

'The existence of a duty of care is ultimately a question of policy'. Discuss. In previous years, the concept of duty of care has been applied by various courts to act as a control device in order to determine and limit the categories of who can bring claims in negligence and in what circumstances. Worryingly, judges have shown the ability to strike out cases by deciding that a case is non-actionable and this ability has mostly been exercised in cases concerning public policy. It is here where it is seen that a duty of care will only exist if it does not run contrary to the ideas of public policy. Policy has played an important part in limiting the scope of the duty of care. So is the existence of a duty of care, ultimately a question of policy? To a certain extent, it can be seen that the existence of a duty of care, is ultimately a question of policy. Until very recently courts have has discretion as to whether or not to attach a duty of care to a particular public body and it is these decisions which have been influenced by policy arguments and decisions. ...read more.

Middle

In this case the claimant sued doctors in negligence on the basis that he was not warned of the risk of fracture involved in specific medical treatment. he sustained fractures resulting from his medical treatment. The case was dismissed as the doctor was found to not be liable for negligence. The case was seen to have given protection to medical practitioners. In later cases, the test applied in this case was extended to imply that 'the professional practice will not be reviewed by the courts'2 The practical effect of denying a duty of care is to provide a complete or partial immunity applying to certain types of defendant. Findings of 'no duty of care', safeguards institutions from all claims, no matter how carelessly they have behaved. Whether or not a duty of care is owed is determined without regard for the defendant's actual degree of fault. The striking out procedure represents a very significant weapon in the hands of defendants, enabling them to deal quickly and cheaply with ill-founded claims without incurring the expenses associated with full trial3. However, in applying the aspect of duty of care in cases not within the scope of public policy, it could be safe to say that applying a duty of care is more freely applied in comparison to that of public policy cases. ...read more.

Conclusion

In imposing liability would mean that the health service would suffer at the rise in claims of negligence against them. Therefore, the purpose for existence would be defeated where health professionals express concerns over the possibility of negligent actions against them creating defensive practices. Defensive practices have started to increase within the medical profession and in the U.S.A these defensive practices have been taken to the extreme8 whereby consent is needed for virtually all kinds of medical practices which would otherwise be considered as 'standard' practices. It remains to be seen whether or not EU law provides a degree of protection against the possibilities of a particular influx of claims against public bodies, as there needs to be a balance between individual justice and general public needs. 1 Pg 116, Tort Law, Text and Materials, Lunney & Oliphant 2000 2 Pg 116, Tort Law, Text and Materials, Lunney & Oliphant 2000 3 Pg 89, Tort Law, 4th Edition, B.S Markesinis & S.F Deakin 4 Pg 89, Tort Law, 4th Edition, B.S Mareksinis & S.F Deakin 5 Tort Law Lecture notes, Kate Standley, 2000 6 Pg 126, Tort Law, Text and Materials, Lunney & Oliphant (Judgement on Osman v United Kingdom [1999]. 2000 7 Pg 120, Tort Law, text and Materials, Lunney & Oliphant 2000 8 Tort Law Lecture notes, Kate Standley. 2000 ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree Tort Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Here's what a teacher thought of this essay

4 star(s)

A good essay that attempts throughout to answer the question set.

There is some overreliance on primary texts and occasionally arguments could be developed further. But the concluding paragraphs, that make reference to recent developments in this area of law in the context of the Human Rights Act, demonstrates an impressive understanding of tortious public policy issues.

Marked by teacher Edward Smith 17/06/2012

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree Tort Law essays

  1. concurrent liability(TM) in tort and contract.

    Similarly, tortious damages are backward looking whereas contractual damages are forward looking. The tests for remoteness of damage in tort and contract are different. In contract, the test for remoteness is whether the loss flows naturally from the breach or is otherwise within the reasonable contemplation of the parties at the time the contract was entered into.

  2. Consider what is meant by concurrent liability in tort and contract. Using examples from ...

    * Interests in property- a person land is protected by a number of torts such as nuisance Rylands v Fletcher3 and trespass to land. Interests in personal property are protected in such torts as trespass to goods and conversions. * Economic interests-this is an area where the boundaries of tort and contract are not clear.

  1. Duty of Care.

    It provided for a 2 stage test - - Whether, as between the alleged wrongdoer and the person who suffered damage, there is sufficient relationship of proximity or neighborhood such that, in reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter, in which case a prima facie duty of care arises.

  2. The Federal Government's "review" of the law of negligence - The aim of the ...

    The parliament of The New South Wales has gone further than the committee's recommendation in limiting the potential liability of public authorities for negligence. It has embraced the policy defence related to the allocation of resources. But it has also said that, in general, no action will lie against a

  1. Liability In Negligence Problem case. Advise Greenwichshire Police whether they owe a duty ...

    As stated previously, the police do owe a duty of care to the protestors at the rally considering their primary purpose of being present there was for their safety and security. The third criteria which must be satisfied is that it must be 'fair, just and reasonable' for such a duty to exist in the light of policy.

  2. Consider the relationship between the torts of private nuisance and negligence and in doing ...

    'the extent of harm to P - and the traditional concern of nuisance - hardly mattered at all and indeed, it is very difficult to discern from the judgements in Sedleigh Denfield. This was negligence pure and simple disguised of nuisance.'13 The issue of imposing a duty on the defendant

  1. Vicarious Liability.

    service arising in the course of the performance of their professional duties. The hospital authority is liable for the negligence of professional men employed by the authority under contracts for services as well as under contracts of service. The authority owes a duty to give proper treatment - medical, surgical,

  2. Tort Problem Question Answer

    attached to him or her.2 And Salmon LJ had agreed and added in the same case, The question as to whether the plaintiff can be said to have been guilty of contributory negligence depends on whether any ordinary child of 13 1/2 could be expected to have done any more

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work