Essay: Breach of duty of care (opinion)

Coursework
In this essay I would like to talk about the current position for breach of duty regarding to both the claimant and the defendant and their position. It is often said, that breach of duty takes a big place in Negligence when a case being analysed. Generally a breach of duty describes the behavior of the defendant which actually injures the plaintiff and is often treated in practice as synonymous with the word ‘negligence’. The classic definition of breach of duty is that negligence is 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 . Particularly in breach there is a two staged approach when we analyse what exactly happened in order for us to take part of it. These are to establish what we expect from the client, making it clear what he/she should have done. Furthermore, it is important to take part in the questioning part where we make it clear what exactly happened. The two staged approach is a very good way to get to know the important part of the actual case. When I analyse the key expectations in breach of duty that is clear that the three main parts are age, illness and special skills or knowledge. I am going to examine the general facts and the special skills in the next part of my essay.
Firstly, that is a very important fact in breach of duty to examine the reasonable man test. A phrase usually used to designate a person in society who exercises average care, skill, and judgment in conduct. A person who guided upon considerations which regulate the conduct of the human affairs. The examination of a conventional individual would not be relevant for defendants that retain themselves out as declaring a skill. The reasonable man does not have that particular skill and the conduct wouldn’t expect the same skill from a professional in the same circumstances. The reasonable man test is a very good way to use it in Tort Law as it gives an opportunity to make a fair decision whteher the defendant is broke the chain in breach of duty or not .
I would like to introduce one of the key case in breach of duty which is Roe v Ministry of Health. Conforming to Denning L.J. the defendant will only be liable for his act if the person would have foreseen the damage in the prosperity predominant at the time of the stated breach of duty. The court also stated that the nurses in the hospital did have basic professional standards but they did not have specialized skills or training and wouldn’t be judged as though they did.I think its an important fact of this case that its happened in 1954 when the medical industry wasn’t very advanced. As far as I am concerned, the Judges position in this case was totally right, because when a hospital employe a nurse or a doctor from that point they are fully responsible of their actions. However, in this case they used the reasonable man test also as I mentioned earlier. They analysed whether the consequences will be foreseeable or not, after the injection was given. I agree that It was not foreseeable because in that time they couldn’t tell whether the medicine got mixed or not. It is arguable that the person who gave the injection to Roe wasn’t fully trained, however he did everything what he supposed to do to give an injection in the correct way. Per Morris LJ: “The nupercaine was stored in glass ampoules immersed in a solution of phenol, and the judge found that the injuries were caused by phenol, which could have entered the ampoules through flaws not detectable by visual examination, being injected with the nupercaine. The other case similar to this one was Philips v William Whiteley Ltd. It is a matter fact that in 1938 the technology to create ear piercings wasn’t very advanced so anyone who wanted an ear piercing was aware of the procedure and the level of the sterility. I agree what Goddar J said: “Although the jeweler did not ‘use the same precautions in procuring an aseptic condition of his instruments as a doctor or a surgeon would use, I do not think that he could be called upon to use that degree of care. ” In this situation I can see that Mr Couzens was protected by that the consequences were not foreseeable. It is a fact, that she went to get her ear pierced. Nevertheless, there is no breach of duty here because Mr Couzens did the right thing what he supposed to do. It is my belief that every case should be carefully considered. I always try to see whether the defendant was liable or not and if he/she could see the consequences of the act. In the three previous cases I can see that none of the defendant would have been able to see the consequences of their act, therefore they’re not liable. I am going to introduce a current case from this year in order to compare the outcomes of these cases and the positions for the claimant and the defendant. The case I am going to use is Yvonne Lesforis v Christos Tolias. In this case where the plaintiff went under a spinal surgery I need to analyse more sections of the judgement. Firstly, I would like to use Mr Justice Martin Spencer words which states: “”3.12 … a reasonable spinal surgeon would exercise caution with the use of post-operative chemo-prophylaxis against venous thromboembolism. This is because chemo-prophylaxis against venous thromboembolism increases the risk of a post-operative haematoma. That risk of haematoma formation decreases with time, such that use of chemo-prophylaxis 12-24 hours post-operatively has a much lower risk of association with post-operative haematoma than administration of the same drug within six hours of surgery” In this case the consequences were foreseeable so the chain of breach is broken . He was medically trained also so he knew what he was doing to the patient. In regards to the chemo-prophylaxis it was appropriate to give it to the patient. None the less, the timing was incorrect and that is the reason why Mr Tolias is liable for this act. I agree that the judgement was fair for both the claimant and the defendant in all the previous mentioned cases, because it was clearly explained when they broke the chain of breach. In my opinion the tort law is very fair in most of the time and I do not think that there is any change needed currently in this part of the law. The fact that I analysed 3 cases from different years shows us how the judges go about the breach of duty. I can see that the cases from the 1940’s made it very clear to the professionals how to examine a tort case where we talk about breach of duty. It is a matter fact, that the cases from the early 90 ‘s put down the main rules for this section of the law .However, I did found some cases where I do not agree on the decision and I would like to highlight the most important from all.
One of the main case in breach of duty was Nettleship v Weston where I went in details and realised that I can argue the judgement. After doing a big research on this particular case I realised that there is multiple things going on in this case.The first problem I found is whether or not is fair to let a defendant await on their own inabilities to breakout liability. In my point of view there is an option for the defendant to await on their inability as in this case she was insured and the plaintiff was not a professional driving instructor. Therefore, he was able to foresee the circumstances if anything goes wrong as he wasn’t trained professionally so he should have accept the outcome. In regarding to this circumstances the defendant still needs to bear the costs of this accident but with something very light as it wasn’t just her fault. From my perspective, the driver instructor knew what he was going to face if something isn’t going in the right way. I also don’t agree that the blameless road user left uncompensated even though that he didn’t even do anything wrong. In such a situation like this the court should have give some compensation to the road user . The defendant was insured before she started to drive so It would be unfair with her if she would need to pay for an incident which she caused by her being only inexperienced. Every new driver make mistakes and that is why insurance is very important so she did the right think with taking out a fully comprehensive insurance. Therefore, the insurance should cover in any kind of accident situations. It is a matter fact that the judgement is always arguable but to me Nettleship case was a case where I really wanted to raise these important points. There is an assumption, established in Nettleship v Weston where a learner driver lost control of a car, that there should be a public expectation of safety, and that doctors in training should be acting to the standard of the grade they are operating in. This statement also shows that she was still a learning driver who lost control of a car and It is the same when there is a trainee doctor who should only do things which he/sge thinks his/her ability is.
In conclusion, I would like to summarise my opinion about breach of duty. Every case is different. Therefore, the judgement is always going to be arguable. I did a lot of research on this part of the tort and found out that breach of duty got a lot of very good part which establish the law in this section. One of this which I mentioned in my 3rd paragraph is the reasonable man test. I think it’s an amazing way to make a decision of someone who might be liable for they act. As deeper as I went in to read the case analysis I found some cases which I thought that I could argue the court decision . I choose a big case and raised my two main points of why I didn’t agree with the final judgement. Its always amazing that every individual have their own opinion and its never going to change . From my 5 case I included one case from this year so I was able to compare the way of the judgement compare to one of the first cases in this field. Overall, I think that breach of duty is still in a position where there is no need for further reform because the way they examine the cases in this section of the law is very fair most of the time for both the plaintiff and the defendant. As far as Im concerned , the way how breach of duty is working currently is working vert well and the Judges ale to make fair decisions with the structure they have currently .