Trot law covers the jurisdiction of common law that includes civil wrong and includes legal liability on the Tortfeasor for committing tortious act. The aim of this paper is to inspect and investigate the case in the light of main elements of tort law and to produce advice sheet considering the case of Mr. Adam. This paper will entail the main elements that are required in the tort of negligence and to apply the law of vicarious liability to the facts of the case along with the defenses available to the tort of negligence.
Overview of the Case
Adam, a patient who underwent abdominal surgery at the Royal Dell Hospital began to suffer from stomach pain. After the investigation it was revealed that during the surgery, a clip, which was used…show more content… The house of courts after the case of Donoghue v Stevenson’s stated that every individual, to their neighbor, owes the duty of care. According to the Lords, the definition of neighbor includes a person that is directly or closely affected by the act that ought reasonably to have in contemplation as being so affected. The definition that is given by the lords includes almost every one and due to this if the same definition is still made valid today, the courts will have unlimited cases to deal on daily basis.
The definition therefore was later confined by the cases of Caparo Industries plc v Dickman (1990) and Anns v Merton London Borough Council (1977) which by the introduction of words “fairness” and “proximity” restricted the definition.
Fairness means that to owe the duty to another is just, fair and reasonable. Proximity means that the parties are close enough so as to make it reasonably foreseeable that due to the negligence of one party, the other party suffered loss or…show more content… There exists sufficient proximity (I.e. the surgeon performed the operation); it is reasonably foreseeable that due to negligence or careless attitude of the surgeon could cause damage to Adam. And in this case it seems just, fair and reasonable for surgeon to owe duty of care to Adam.
Element 2 – Breach of Duty of Care
It is evident from many cases that have been brought to the court that between claimant and defendant, there exists duty of care. Whether or not the actions of the defendant were sufficient to meet the duty is the real issue. In order to determine this, standard of care have been set by the court which the defendant should meet. The standards set out the reasonable action which under the given circumstances would have been taken by the reasonable person. If the courts believe that the defendants have not met their duty of care the defendant would be found to have it breached
It may include the following circumstances;
• Defendant’s actions are not in line with common industry practice and recommendations.
• Defendant’s actions include some social benefit.
• The action of defendant included high