Tortuous liability is applied in healthcare in order to monitor claims and lawsuits arising from medical malpractices and negligence of their staff. Precisely, ‘tort’ refers to wrongful action committed by a person. The remedy to tort is damages, and this forms a part of the law of obligation. Currently, juries doctor program has made the principles of tortuous liability compulsory for their students. In this program, students learn the fundamental elements of tort liability in areas such as breach of duty, causation, negligence and defenses to liability. Tort liability in many healthcare setting is based on the conduct of personnel working at the facility as well as the organization itself. Tort law has mainly two objectives; deterrence and compensation.
Seemingly, in 2002, the Australia tort laws went through major changes. Tort laws in Australia are divided into three groups namely; negligence torts, strict liability torts and intentional torts. Negligence torts refer to civil wrongs that occur due to one’s failure in exercising care against risk of known harm. Intentional torts are defined as deliberate action that results to harming a plaintiff. Classical example of intentional tort includes fraud and defamation. Strict liability torts impose accountability on a company that is not guilty of wrongdoing but its activities cause dangerous harm to the society despite taking the appropriate care.
According to researchers, reasonable comprehension of tort can aid in minimizing the occurrence of tort liability. Risk managers have a duty of updating all the relevant organizations procedures and policies so as to meet the stipulated legal requirements. Any change in policy must be passed to the organizational staff in order to familiarize them with the incoming changes and probable effect on their daily activities.
Therefore, this analysis focuses on the impact of reforms on tort law.
Table of Contents
Introduction
Establishing Liability
Damages
Procedural Reforms
Conclusion
References
Introduction
Tortuous liability is applied in healthcare in order to monitor claims and lawsuits arising from medical malpractices and negligence of their staff. Precisely, ‘tort’ refers to wrongful action committed by a person. The remedy to tort is damages, and this forms a part of the law of obligation. Currently, juries doctor program has made the principles of tortuous liability compulsory for their students. In this program, students learn the fundamental elements of tort liability in areas such as breach of duty, causation, negligence and defenses to liability (Commonwealth of Australia, 2002). Tort liability in many healthcare setting is based on the conduct of personnel working at the facility as well as the organization itself. Tort law has mainly two objectives; deterrence and compensation (Ellison, 2006).
Seemingly, in 2002, the Australia tort laws went through major changes. Tort laws in Australia are divided into three groups namely; negligence torts, strict liability torts and intentional torts. Negligence torts refer to civil wrongs that occur due to one’s failure in exercising care against risk of known harm. Intentional torts are defined as deliberate action that results to harming a plaintiff. Classical example of intentional tort includes fraud and defamation. Strict liability torts impose accountability on a company that is not guilty of wrongdoing but its activities cause dangerous harm to the society despite taking the appropriate care (Ellison, 2006).
According to researchers, reasonable comprehension of tort can aid in minimizing the occurrence of tort liability. Risk managers have a duty of updating all the relevant organizations procedures and policies so as to meet the stipulated legal requirements. Any change in policy must be passed to the organizational staff in order to familiarize them with the incoming changes and probable effect on their daily activities (Turner, 2013). Therefore, this analysis focuses on the impact of reforms on tort law.
Establishing Liability
Based on the tort law, a person owes another person a duty of care given that the first person could have reasonably foreseen the potential injury, economic loss or death. In the Australian law, the concept of negligence has two critical components namely the foreseeability of the risk or harm and the calculation of the degree of negligence (Sloan & John, 2009). This implies that a person is not liable for having failed to take precautions against an unforeseeable risk. Precisely, the risk must be improbable such that a reasonable person ignores it in order to be considered foreseeable. The establishment of the foreseeability is often followed by negligence calculus taken to help in deciding the available precautions that a reasonable person would take in avoiding the harm. The negligence calculus evaluates various mechanisms. For instance, the negligence calculus must establish the probability of harm occurring in absence of care, seriousness of the damage, the burden of taking safety measures in avoiding harm and the social activity and utility of creating the risk (Zenon & Black, 2012).
Case laws in Australia have evolved so much so that events with low probability of occurring can still be held foreseeable. For example, In Wyong Shire Council v Shirt (1980) 146 CLR 40, the court held that a person can be held liable for nay foreseeable risks rather than fanciful risks. The reforms on tort law replaced the previous test of foreseeability developed by Wyong Shire (Ellison, 2006).
Council v Shirt case argued that a person can only be held liable for insignificant risks. The reforms established that the foreseeability was vital but not sufficient condition in revealing negligence. Additionally, the reform developed negligence calculus in legislation in order to prescribe what is required by courts to consider during when determining negligence.
It is vital for courts to consider whether the negligence conduct of the plaintiff played a part in causing the harm. This helps in knowing whether to hold defendants liable in paying for damages. Before tort reforms came into existence, courts had difficult times in establishing when to relax the stipulated requirement of proof of causation (Murphy, 2007). However, this changed with the adoption of the tort recommendations.
Tort reforms established two essential aspects of standard care required in medical professional namely; negligent treatment and negligence related to duty. Negligence to duty includes failure to disclose relevant information to patients before commencing their treatment. Doctors have the right to inform their patients of risks associated with the treatment. Doctors who breach this obligation are held liable in situations where a patient could have rejected treatment if he/she was made aware of the potential risks. These reforms tried to answers questions related to what could have been expected from a professional at the date of alleged negligence (McDonald, 2005). As a result, patients’ awareness on treatment measures and their potential repercussions was prioritized during the commencement of medical procedures.
Review of the Law of Negligence recommendation 43 offered directions concerning non-delegable duties (vicarious liability). In this case, a person can be liable for any negligence caused by another person given such people were entrusted to job on their behalf. For instance, an employer is liable for mistakes made by their employees given that such people were acting in the line of their duties (Dietrich, 2012). In the healthcare, the liabilities of medication errors made by nurses are passed to the concerned doctors. This has forced the medical staff to become competent in their duties.
The Law of Negligence recommendations 33–38 where vital in answering cases related to mental harm. Though it is hard for people to recover compensations for negligence that caused mental harm, reasonable foreseeability is the only condition of the existence of duty of care. Mental harm should be evaluated to discover conditions under which it occurred. Initially, pure mental harm was compensated on the ground that the plaintiff had suffered a ‘recognized psychiatric illness (Carrier, 2010). However, the reforms required payment of additional damages to cover for consequential mental harm
The Law of Negligence recommendations 30-32 offered insights in matters related to contributory negligence and the assumption of risk. Contributory negligence refers to the inability of the plaintiff to take reasonable safety for himself/herself and hence contributes to the injury and harm such people suffers. Jurisdictions in Australia offer the apportionment of damages. This reduces the damages entitled to plaintiff owing to contributory negligence. The reform on tort law also allowed courts to reduce compensation paid to the plaintiff by 100% in situation where it was considered equitable and just to do so (Ellison, 2006). Tort reforms also made it easy to establish the defense of risk assumptions in regard to proofing the awareness of the occurred risk in relation to the obvious risks.
Reforms on the Law of Negligence sections 7.20-7.24 gave the plaintiff the right to file lawsuits against good Samaritans for their actions especially during danger. However, majority of jurisdiction protects good Samaritans from all civil liability for their acts of carried out in good faith. Sections 11.20-11.23 also give the plaintiff the right to sue volunteers who harm them during the course of volunteering activities (Ellison, 2006).
The reforms to tort law give public authorities a defense policy for those suits filed against their activities in preventing the risk. Public authorities often use resources limitations as their ground in avoiding liability to injury.
Damages
Reforms on tort law help in answering questions related to general damages. General damages can be defined as compensation offered for on economic loss, pain and suffering and loss of expectation of life and amenities. Loss of amenities is the inability of an injured person to enjoy their lives as they did before and relates to work, marry, and engage in hobbies and sexual satisfaction among others (William, Ziller & Thayer, 2010). Reforms on tort law offered limitations on general damages in an effort to reduce the cost and number of smaller claims.
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- Patrick Kimuyu (Autor), 2017, Principles of Tortuous Liability, Múnich, GRIN Verlag, https://www.grin.com/document/381305
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