The relationship between the employer and the employee is legal and called the agency. The employer is the principal and the employee is the agent and therefore in respondent superior, the principal has a control over the agent’s work behavior and the principal must have a sense of responsibility to the agent’s actions and behaviors. Aside from this, respondent superior also means ‘let the master answer for the acts and behaviors of the subordinate” (“Respondent Superior”). Thus, when a healthcare staff, perform negligence and injures a client, he remains responsible but when the employer has knowledge about it, then both of them can be liable to the injury of the client. For example, if the hospital will have cross-cutting and in the process will hire under board healthcare staffs and one of the staff is incompetent and caused an added injury to the patient, the hospital will be held liable and therefore can be punishable by law.
. It is not sufficient that the medical professional acted in good faith to best of his or her judgement and belief. The question in every case would be whether the medical practitioner in fact attained the degree of due care established by law. Medical negligence is a sub species of this tort (civil wrong) which falls within the larger species of professional negligence. Under our law, medical negligence, like other forms of negligence, is a criminal offence for which a doctor can even be imprisoned.
It was generally known as the Bolam Test. This principle was derived from the case of Bolam v Friern Hospital Management Committee . Justice McNair stated that if the doctor is acting in accordance with the skills or practices that are accepted by a body or responsible medical men that are skilled in that particular art, the doctor will not be considered as negligent, merely because it is a body of such opinion that takes a contrary view . He had further described that the word “negligence” involves professional skills. The Bolam Test covers: 1.
The issue that this essay will deal with is whether Benedict has a claim in the tort of negligence and is entitled to damages. Negligence provides a remedy for claimants who suffer damage because of a person’s failure to use reasonable care. To succeed in a claim, the claimant must prove three vital elements. The first hurdle to establish is that the defendant owed the claimant a legal duty of care. This can arise from an established duty situation such as doctor/patient or a defendant assuming responsibility towards a claimant.
The consumer usually perceives a mark as a whole and does not go into details of analyzing its different aspects. The consumer is presumed to be reasonably observant well-informed but as he rarely has the opportunity to make a comparison between the different marks, he is to depend on the imperfect picture of the marks which he has. It should also be considered that the consumer's degree of attention is to vary according to the different types of goods or services in question. At the same time, if the differences between the marks are so vast that only a "moron in a hurry would be misled," the court will not arrive at a finding of likelihood of
It was going to moderate speed. In this case, there was no evidence of negligence on the part of the defendant. Defences to Negligence If you are sued for negligence, in your defence, you can provide evidence to show that you did not owe a duty of care to the plaintiff, that you met the standard of care, or that your actions did not cause the damage. In addition, you may be able to prove that the plaintiff contributed to the cause of the injury. This defence is know as Contributory Negligence.
Every act of negligence by the doctor shall not attract punishment .Slight neglect will surely not be punishable and ordinary neglect,as the name suggests,is also not punished.If we club these two,we get two categories:negligence for which the doctor shall be liable and that negligence for which the doctor shall not be liable. The liability of the doctor shall be civil or criminal or both. One of the essential elements in criminal law is mens rea – the guilty mind or an evil intention. The question arises as to whether in cases of medical negligence – whether slight, ordinary or gross – is there any criminal liability? As mens rea is essential, it is difficult to argue that the doctor had a guilty mind and was negligent intentionally.
The attributions that cause learned helplessness are internal, stable, and global (Weiner, B, 1986).An internal attribution means the cause of an event as something to do with the person, but not to the outside world. For instance, if you think that you failed the test because you are stupid, then that is an internal attribution. On the other hand, if you are blaming the test was hard, which is out of your control to make you failed, then that is an external attribution. Another attribution is stable attribution. It is talking about one cannot change over time or across situations.
Assignment #2 Question 1: What is the purpose of tort law? What types of damages are available in tort lawsuits? Primarily, the purpose of tort law is to provide relief to injured parties for harms and/or damages caused by the person being sued for tort as well as to impose liability on parties responsible for the harm, which is ultimately aimed to deter others from committing harmful acts, whether intentional or unintentional. In tort law, damages extend not only to physical injury sustained and/or personal safety, but also to another person’s property, dignity, and reputation (emotional pain and suffering) that is recognized by statute or common law (protected interest) as a legitimate basis for liability. In tort
The Supreme Court in the case of Kusum Sharma & Ors vs. Batra Hospital and Medical Research held that each every case has different facts and circumstances. One cannot ignore that medicine is an evolving subject and one cannot always predict its outcome. The operations done by the medical practitioners contain certain calculated risk and if that risk taken doesn’t work out then it cannot be construed as negligence in the part of the medical practitioner if he has taken reasonable care and caution at the time of taking the calculated risk. In another landmark case of Jacob Mathew .V. State of Punjab, the Supreme Court was of the view that in some cases of medical profession the doctors are required to make difficult choices.