3:any defences from the doctor she may encounter ?
- 1 十年前最愛解答
1. you may better be referred to a land mark case, Donoghue v Stevenson (Neighbour principle) or a recent case, named Caparo v Dickman. It is the basic principle in Tort Law, that is if you want to sue someone in Tort Law, you need to establish the existence of duty of care, he did in breach of such duty and, harm must be a "reasonably foreseeable" result of the doctor's conduct,
a relationship of "proximity" between the doctor and Ming AND it must be "fair, just and reasonable" to impose liability on the doctor. Also, Ming's mother also need to prove Causation in fact (but-for test) and Causation in Law (e.g. any intervention by third party in such injury). Also, whether or not the damages is forseeable one under the case of Wagon Mound.
2. Ming's mother can obtain some medical report from another doctor that the doctor acts in the way out of the current practice. I forget the case name, sorry. If it is the case, Ming's mother can use such report as an evidence to prove that the doctor was negigence during the operation. However, the doctor can use another authority (Sorry, i also forget the case name) to prove by some medical report which support him. Then, the doctor may escape liability.
3. The doctor may possibly rising a defence in Tort, called Contributory Negigence. That's means if Ming's mother send Ming to go to Hospital with a little bit delay. Then, the doctor may plead that if you send your son for me to do some operation on time, the result may not be the same.
4. If the claim succeeds, the judge may regard all the circumstances throughout the case and also take some factors into account, such as the working ability of Ming (if Ming is adult), the mental distress causing Ming's mother or she suffered Nervous Shock (then it may be a different area in Tort Law). However, if it is a real case, you are better to seek legal advise from a practicing lawyer.資料來源： Only my knowlegde
- Kenzzz_chLv 71 十年前
Q1: To succeed in an action of negligence (not tort!), one needs to prove 4 elements:
1. duty of care
donoghue v stevenson
Ratio: One owes another a duty of care if the injury to the other person (neighbour) is reasonably foreseeable.
2. breach of duty
Bolam v Friern Hospital
Ratio: when the defendant's act fall below the standard of the reasonable, ordinarily skilled doctor, he is in breach of his duty
3. causation (in facts)
Ratio: causation is proved if the plaintiff would not have suffered injuries but for the defendant's breach of duty.
causation in law: Wilsher v Essex Area Health Authority
Ratio: If there are a number of different agents which could have caused the injury, and it is not possible to tell which agent actually causes it, then causation is not satisfied.
4. remoteness of damage
Ratio: the harm caused by the defendant is not too remote if it is reasonably foreseeable.
thin skull rule
the tortfeasor should take his victim as he finds him.
Q2: Siu Ming's mother should obtain a expert report from a doctor to show that the doctor fell below the standard of the reasonable doctor and acted inconsistently with the common medical practice (bolam)
Also, Siu Ming's mother is only entitled to sue as a dependent under the FAO or on behalf of the estate under the LARCO s.20. At common law, the deceased's family has no right to recover any damages for death.
Q.3. contributory negligence. A PROPER example would be that siu ming was allergic of some medicine required in the operation, was consulted by the doctor as to whether he has any allergies but did not say anything.
If Siu Ming took dangerous drugs just before the operation, ex turpi causa, or the illegality defence, will be raised by the opposition. But it is a complete defence and rarely granted.
Q4. In rewarding general damages, the court will take into account the age and life expectancy of the Siu Ming, his current income, saving pattern, vicissitudes of life, how active he was