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Published: Fri, 02 Feb 2018
Tort of negligence in English legal system
This assignment will look at the tort law specifically, the tort of negligence and its development in English legal system. It will also highlight the factors English courts will consider in deciding whether a defendant has generally breached their standard of care. This assignment will finally explain the impact of Bolam’s case on the law of negligence for medical professionals.
Tort comes from the word’ totus’(Latin word). It means ‘twisted’ or ‘crooked’ it is defined as any wrongful act, other than breach of contract which allows civil parties or individuals to Sui. There is sub-division of tort which includes tort of Battery (example, striking a person in anger), Trespass, negligence (carelessness), defamation (slandering), nuisance, employer’s liability, vicarious liability, economic tort and liability for animals.  This assignment will mainly consider the Tort of negligence. It is about compensating others who have been harmed by other people’s actions.
The conceptual structure of negligence
The tort of negligence forms one of the most dynamic and rapidly changing areas of liability in modern common law.  It is simply defined as a careless behaviour with no intention of causing damage. This careless behaviour of others which makes other suffer damage may be entitled for compensation. That is the main concern of negligence. 
‘The existence of general duty imposing liability for careless behaviour across a range of situation and relationships was not recognised until 1930s’.  Negligence originated and established by the House of Lords after the decision made in the case of Donoghue v Stevenson. 
Examples of some cases which might be brought in negligence are, people injured in a car accident who sued a driver, business which loses money because of improper advice from an accountant or patients who sue doctors when medicals go wrong. Negligence protect against 3 different types of harm which includes personal injury (example is broken leg), damage to property (example is damaged car) and economic loss.
Elements of negligence
The four main element of the tort of negligence are duty, breach, damage and causation. There is no successful negligence claim without any of the elements.  The case of Donoghue v Stevenson  created the tort of negligence.  The defendant must owe claimant duty of care, the defendant must breach that duty and that failure must cause damage to the claimant. Theses element are the factors the British court will consider when deciding whether a defendant has generally breached their standard of care.
Duty of care 
Doctor’s duty in an NHS is in Tort but a private patient’s, is derived from contract. Practically, both duties are mostly the same, irrespective of their origin. The medical man’s duty of care is simply based on the fact that the medical man undertakes the care and the treatment of the patient.  In the case of hospitals running casualty departments  and visitors require emergency treatment in an accident, there could be possible of exceptions to the ‘no-duty to act’. This mean, there could be a situation where by a medical practitioner may not owe a duty of care to patients.
Their Lordships laid down general rules for when duty of care would exist in Donoghue v Stevenson’s case for the benefit of future cases. Lord Atkins stated that stated; ‘a reasonable care must be taken to avoid an act or omissions which a reasonable man can foresee  , may cause injury to a neighbour’. This is known as the neighbour principle. He then defines Neighbour as “anyone who is directly affected by your actions”.  Lord Atkins biblically coted ‘love thy neighbour’  to support the neighbour principle. Duty of care in general, helps people to be protected from ‘the law effects of negligently inflicted harm’.  The holding of some certain public offices and goods bailment is another situation which increased duty of care. 
The test of foreseeability is not what the defendant actually foresees. It is what a reasonable person could have been expected to foresee.  The doctrine of the duty of care, legal concept which dictates the circumstances in which a party will be liable to another in negligence, may restrict access to compensation. One will not be liable to someone or organisation, if the law says he does not owe duty of care to them. The main factors to consider whether a person or an organisation owes duty of care includes, reasonable foreseeability, Proximity and fair just  . Proximity is the closeness or the relationship between the parties involved. There are three types of proximity which includes blood, physical and legal proximity. Blood proximity is when the parties involved come from the same party for example, mother and son. Legal proximity is when one is legally bound to the other (the local council and the local members of the council) and Physical proximity people around you.
Causation and Damage
Causation requires English courts to judge ascription of the legal responsibility for damage fairly. The court mostly refers to the ‘but-for-cause’ when damages caused resulted from multiple causes. For example ‘would there be a loss incurred but for the defendant’s negligence?  This explains that a defendant should be liable when he/she is personally responsible for the damage. Damage is an injury or a harm which may reduce the original value or usefulness of something.
Professional and special skills
Professionals are governed by the standard of a normal person in their occupation or work field. Doctors owe duty of care to their patients and should therefore go punish if the duty is breached. United Kingdom courts consider facts that, some defendants may have special skills where the case involves exercise on those skills or knowledge they have. In this case, by law, the defendant must show the degree of competent expected of the ordinary co -skilled worker in the same profession, when performing his duties.  If a defendant fall short in the level of competent hence leading to damage caused, may be held negligent. Example is when a rugby player was injured as a result of a decision made by a referee.  GPs reasonable competent is tested with other GPs.
The impact of Bolam’s case on law of negligence
The case of Bolam addressed how the standard of care by professionals with special skills or knowledge should be assessed.  This is known as the Bolam test. The test states that ‘professionals are not guilty of negligence if acted in accordance with the practice accepted by a responsible medical body as proper’. this clearly explains in the leading delivering.  In Bolams case, it was noticed that other medical practitioners may disagree with a specific practice carried by a doctor a t a giving time is a different medical body, but that does not make the defendant negligent as long as the measures used is accepted proper by a responsible body.
There is a greater impact of Bolam’s test on UK laws of negligence but there are always exceptional cases where it can be ignored. This test was broadly considered in 1985.  The test seems to favour and protects medical professionals as long as they use, any option which is considered as proper and reasonable by the standard medical body. On the contrary, if a professional breaches the duty and claimant is able to prove that the standard care was breached, then the doctor or the medical practitioner is liable of negligence and must therefore be punished in accordance with the law.
Bolam was unable to prove the breach in this case even though he was not informed with the less risk involved in the electro-convulsive therapy. He was also unable to prove, he would not consent to the therapy if he was told the risk involve. A doctor would be negligent if Bolam had proven these two points in court. This makes it kind of very difficult for the individuals to win cases of negligence which professional bodies’ are involved
This assignment has considered the important of Bolam’s test on the law of negligence in the United Kingdom. It differentiate and explained the main elements of negligence, which are the main factors courts look at, when deciding whether a defendant has generally breached their standard of care. It also considered the origin of the tort of negligence.
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