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

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'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.


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.


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.

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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

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