Liverpool Solicitors

What is negligence?

There are three basic elements to negligence:

• A legal duty to take care owed by a person, persons or an organisation towards others
• A breach of that duty
• Damage suffered as a result of the breach

Negligence covers a vast amount of situations (too many to state here) and often depends on the individual circumstances of the case, so it can be tricky to pinpoint whether negligence has actually occurred or not.

What is a duty of care?

A duty of care can be thought of as a special relationship that exists between one person or organisation and another, and that relationship imposes duties on one or both parties.  The nature of the duties is decided by the surrounding circumstances of the case, referenced against more vague concepts of reasonableness.

In the law, there is a three stage test which assesses the proximity of the relationship; asks whether the negligent party could foresee the consequences of their lack of care and, finally, questions whether it is just and reasonable to impose a duty of care, given the surrounding circumstances.

Concepts of justice and reasonableness can be difficult to pin down.  Various things need to be considered, such as the age of the defendant.  A 12 year old, for example, can only be expected to show a level of care that 12 year olds can.

Policy is another consideration. For example, in a case concerning police negligence and the “Yorkshire Ripper”, the courts decided that imposing a duty on the police to protect every single member of the public from crime would be impracticable and potentially damaging to police operations.

Do local authorities owe a duty of care?

It really depends on the type of local authority that is being dealt with and the nature of the duties they owe.  As a rule, local authorities are not under a duty of care to carry out statutory functions that are discretionary.  Confusingly, however, if a local authority shows a lack of care in exercising their discretion, they might be liable in negligence.

As is per usual with cases concerning public bodies, questions of justice and reasonableness are important and where appropriate, the Human Rights Act may come into play.  For example, in cases of local authorities not acting to prevent child abuse, the courts have decided that such treatment could amount to “inhuman and degrading treatment.”

In other cases concerning emergency services, surprising results can be seen.  The fire services are not usually under a duty to accept an emergency call and if they do, they may only be seen as negligent if they exercise a lack of reasonable care in tackling the fire and cause more damage.  On the other hand, the rules applied to the ambulance service are different.  If an ambulance answers a call, then at that point a duty of care between the ambulance service and the patient comes into existence.  If the time taken between answering a call and reaching the patient is unreasonable, and the patient suffers further injury or death as a result, the ambulance service could be liable.   The key consideration is assessing what is unreasonable.  If the ambulance is involved in an unavoidable accident, they might be seen to have made reasonable efforts to reach their patient in time.

What do you mean by professional negligence?

Professional negligence concerns any professional who carries out a service for the benefit of others and that service falls below standards that are reasonably acceptable.  Again, we have to go through the simple three stage test, although the fact that professional relationships are usually contractual will often mean it is not too difficult to find that a relationship exists where a duty of care is owed.

Let’s look at example to see how the law works in practice.  If I were to contact a solicitor and instruct him to modify my will and he accepted those instructions but did not do so in a timely manner resulting in my loved ones not receiving my assets after I die, then the solicitor would potentially be negligent and third parties could potentially have a claim.

What do you mean by medical negligence?

Medical negligence is a type of professional negligence that is subject to its own set of rules, although the basic three stage negligence test is relevant.

If the basic threshold of negligence has been reached, then the question that needs to be answered is whether it is reasonable to impose a duty of care on doctors and/or nurses in the circumstances.  The courts do not see themselves as knowledgeable enough to assess whether a medical professional should have acted in a particular way in a particular situation, so the question they ask is whether the actions of the medical professional are backed up by a particular body of competent medical opinion.  A urologist’s actions, for example, might be referenced against what a number of competent urologists would have done in a particular situation.

Even if there is a body of medical opinion which holds an opposite view to another body of opinion, the court may deem negligence did not take place.  If, however, there is no supporting medical opinion, then the doctor or nurse may have acted negligently.

As solicitors it is difficult to tell you what doctors and nurses should do.  However, based on previous experience and past cases, in many cases we may be able to predict outcomes.