How to Ace a Tort Law Question

welcome to the law simplified i'm travina Bandaranaike today let's break down a question in the law of tort in relation to negligence jess is a patient at the Hope hospital Ashley is not responding to conventional treatment for her condition her consultant Kathy suggests that they try a new drug Kathy knows that there is some possibility from early trials that this can lead to depression but decides not to warn her of this just agrees to the treatment she appears to be responding well physically but a week after the treatment started she left the ward unobserved climbed to the roof of the building and jumped to the ground she suffered serious injuries and was taken to the emergency ward her mother Lisa was summoned but when she arrived two hours later she was told that just had just died Lisa suffered a severe psychiatric reaction medical experts are unable to say whether the new drug caused just to commit suicide advise Lisa on her own and Jess's behalf now that we had outlined and had a look at the question succinctly the best thing to do when you're approaching a question in negligence is to firstly decipher the important elements of it so taking the question as a whole as we have done so here make sure that you at least mentally highlight the important segments so let's have a look at these things in turn firstly it is stated that Jess is a patient at the Hope hospital this very first line itself is quite important in determining the relationship of the parties you'll understand why this is important a bit later on when we begin breaking down the areas of law as well as cases that are supplementary to it her consultant Kathy suggests that they try a new drug now at this point have created a relationship between Jess and Cathy namely between doctor and patient Cathy knows that there is some possibility from early trials that this can lead to depression as in this new treatment or the new drug but decides not to warn her off this just agrees to the treatment now this aspect of not warning her will become quite important later on as well she suffered serious injuries and was taken to the emergency ward this is the ultimate culmination as well as the starting point of any liability or any claim her mother Lisa was summoned but when she arrived two hours later she was told that just had died once this happened Lisa suffered a severe psychiatric reaction so we have an introduction for the first time of a secondary victim someone who has not technically suffered any physical injury but purportedly suffered psychiatric harm finally medical experts now this is the evidential side unable to say whether the new drug caused just to commit suicide now these are the main seven points that we have identified in relation to this question each of these outline a very important aspect that must be addressed moreover these points will aid you in determining and applying the law as well as making sure the examiner is aware that you are well versed in not only the elements within the question but also cases and the law as a whole so having considered this what are the issues at hand firstly does Cathy and by extension hope hospital or duty towards Jess in other words would a doctor or duty to its patients and in which conditions secondly did they breach the said duty if at all thirdly has this particular breach if at all cause the death of Jess and finally can Lisa who is Jessie's mother claimed for her psychiatric reaction now when approaching a question such as this it's always a good idea to utilize five minutes of your reading time to identify these elements in your very first paragraph when you answer these kinds of questions it's a good idea to actually outline the areas that you will be tackling one of the major reasons for this is in the eventualities that you run out of time for instance you have already made sure the examiner is aware that you know the law and you are going to attempt the correct question with the correct aspects or the outline now that you have these issues mentioned the very next thing you need to do is you need to track back to your spider graph or the short node that you are created to determine how to apply the law to the persisting case let's visit a spider graph that I developed in order to help me excel at my examinations and something that I urge you to do so as well now succinctly once you look at this particular spider graph you would understand that it will outline every element in relation to the concept of duty of care so this is the gateway in order to establish any sort of liability in relation to negligence but as for this question you would note that not every aspect of duty of care specifically in relation to this spider graph is necessary so the very first thing that you need to know is what applies and that's where our spider graph of this caliber one which is tree in format comes in handy so let's immediately exclude that which is not relevant for our question once we have done so what you would note is the test for establishing beauty of care the current test in Caparo and Dickman as well as specifically psychiatric injury and even in relation to psychiatric injury it would be specifically in relation to friends and relatives now note however that as for B and I linked in health in relation to personal injury as was held by Potts J the rule is still that of the neighbor principle as established by the seminal Donohue and Stevenson there are several cases here that you might be interested in utilizing to prove your point for example in relation to the secondary victim ELISA you might want to bring in the case of mcLaughlin and O'Brien next you need to identify once you established if at all a duty has been placed upon Cathy in relation to a liability towards Jess whether if at all she has breached the said duty just because a particular defendant owes a duty towards the claimant in this case Jess does not mean that that person becomes liable immediately on the contrary you need to make sure that that person has acted below the reasonable standard and that very definition has been outlined in Bourne and men love the defendant owes a duty of care to the claimant and acts below the reasonable standard so a breach is primarily on this reasonable standard component whether or not a defendant has acted above or below it now much like duty of care the very next thing you really do in this particular spirograph as well is to exclude or eliminate that which is not necessary once we do that we are left with the very definition of breach as well as reasonable standard which is determined by several characteristics surrounding that subsisting situation now very specific to other situation is the medical or the doctors aspect of it so because of that we will exclude everything else and specifically look at medical circumstances doctors to be very specific now two seminal cases in relation to this would be Bolam and bolito both establishing very different outcomes but in essence talking about a doctor having a difference of opinion so in a court of law a particular defendant might bring in an expert witness that will side with his particular argument and state that he would have taken the same decision but what's quite interesting here is if you look at the case of Chester and Asha the principles that was established was that where there is some sort of side effect that might be approved by a particular treatment it is the duty of the defendant of the doctor to provide information related to those side effects to the patient or to the claimant now clearly on the facts of the matter jess has not been informed of all the side effects as in that she may get depression if at all by this treatment if we are to hold with that or rather if you are to hold with that when you are answering your question you might be able to utilize this case of Chester and off shop so presuming then that there was a duty and it was breached the very next element that you need to consider is where they it caused the particular damage now this is going to be a question that will be difficult for you to answer in relation to this subsystem question primarily because it is noted in the question itself that medical experts are unable to correlate whether the treatment triggered the suicide in such a situation you cannot use the usual but-for test but it is a good idea to have a discussion on the various aspects of it the very direct but-for test or the materially increasing aspect of it or even probability for that matter once again you have to make sure that you remove that which is not relevant to our question so in this case that would be damage and remoteness because it's clear that the damage was caused and she died and you cannot consider it as being too remote as the other indications that such a treatment might lead to depression and whatever that would happen from that point onwards Jess should have been aware and it cannot be considered as too remote now mind you this is only one way to approach such a question but by answering this in this particular manner you will gauge how exactly a negligence related question in a lot of thought examination should be approached if you are interested in questions of this caliber as well as how to approach them and how to properly answer them and perhaps receive feedback on the types of questions that you are writing as well make sure you visit law dot simply book dot me and I'd be glad to arrange a private tutoring session with you so as always have fun stay safe and obey the law Cheers

Channel: The Law Simplified

Views: 62,458

Rating: 4.9040852 out of 5

Keywords: law, legal theory, tort, tort law, tutoring, exam, university, shaveen bandaranayake, the law simplified

Id: V4cuPHEXd_4

Length: 10min 48sec (648 seconds)

Published: Sun Apr 16 2017