BML 107 Introductory Law for Managers
Individual Report – Law of Tort and Employment
Harry, aged 10, is a pupil at St Botolph’s. One day last year he fell over when running to school and gashed his leg very badly. He managed to hobble into the school to seek help. The school nurse was unwell that day, but Mrs Tourniquet, the biology teacher who has been employed by the school for 2 years, attended to him. Mrs Tourniquet had as a young woman qualified as a nurse, but was not employed in that capacity by the school. Indeed, following an incident two years ago, she had been told by Marvin not to give nursing assistance to pupils. She washed and disinfected the wound and applied bandages, telling Harry to keep it completely covered for the next week. Harry was in increasing pain during the ensuing week, but his mother, Mrs Woebegone, told him that he should not be childish and that he should do as Mrs Tourniquet had instructed. One evening six days after the fall Harry was in such pain that he removed the bandage. The wound had become seriously infected. He was taken to hospital, but it was discovered that the infection had spread to the bone. His leg had to be amputated. The school governors have told Mrs Tourniquet that she is dismissed. Advise Harry and Mrs Tourniquet.
To explain the actions that Harry and Mrs Tourniquet can and can’t take, it is going to be split into sections to cover the full law over this case. The sections the law is going to be split into are: Negligence, Causation, Duty of Care, Unforeseeable Harm and Tort; then ending with a conclusion. Each section is going have a short explanation of the law with a link to the case. This should explain to both Harry and Mrs Tourniquet if they have a reasonable case to give in a civil court and what they could base their case around.
‘The tort of negligence gives rights to persons who have suffered damage to themselves or to their property’ (Adams, 2003) Negligence is the most common cases under tort as it links to all of the accidental injury situations. A successful claim for negligence would need to be proved that: the defendant owed the claimant a duty of care, failed to perform that duty and resulted in damage to the claimant or the claimant’s property, but the damage was not too remote.
The modern law of negligence has been formed around the famous case Donoghue v Stevenson , where Lord Aitken established the neighbour test and explained how you should not harm your neighbour. The neighbour test explains who is considered as your neighbour in law and that you should commit certain acts or omissions to avoid harming that neighbour. Failure to commit these acts or omissions can be decided fair if the damage is unforeseeable.
For Harry to make a claim, it would be under Negligence and would be trialled in a civil court as it is possible that Mrs Tourniquet has not taken reasonable care when attending to Harry’s injury where there is not a duty to attend to the injury at all and it has resulted in serious injury.
Duty of Care
‘For a claimant to succeed in Negligence, they must be able to prove that the defendant owed the claimant a duty of care in relation to the harm suffered’ (Kelly. D, et al, 2005) Duty of care is the legal form of a person’s duty to do or not do a certain task. It can vary in many certain cases and peoples roles towards others. An example would be a lifeguard having a duty to save someone drowning in the pool they are attending in the right, legal manor. An example of a case that involves a breach of duty of care is Blake v Galloway . The neighbour test breaks down the duty of care into 2 relevant needs: reasonable foresight of harm and a relationship of proximity. Certain factors should be weighed in establishing breach, such as a greater risk of injury should ensure bigger precautions being taken to stop...
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