‘The Duty of Care concept operates as an unnecessary and unfair restriction on liability for negligently inflicted harm’. Consider the arguments for and against this position and reach a reasoned view.
(a) ‘The Duty of Care concept operates as an unnecessary and unfair restriction on liability for negligently inflicted harm’. Consider the arguments for and against this position and reach a reasoned view.
(b) In March 2021, Vida’s baby was born by emergency caesarean section Bantam Hospital. The baby required resuscitation. She was not able to see her child as the baby was immediately rushed to the NICU where a tube was inserted to help her breathe. Vida saw the baby for the first time the next morning. At that time, the baby was in an intensive care box, surrounded by tubes, monitors and other medical equipment. Vida could not hold or touch her baby. The baby was later diagnosed with brain damage for which the Bantam NHS Trust has admitted liability on the basis that there was a culpable delay in delivering the baby after clear signs of distress were evident on the heart monitor.
Vida has suffered psychiatric injury because of the traumatic birth, witnessing the baby’s time in the NICU and receiving the child’s diagnosis of brain damage.
What are Vida’s prospects of successfully suing the Bantam NHS Trust for her psychiatric injury?
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Solved by verified expertSome argue that the Duty of Care concept is an unnecessary and unfair restriction on liability for negligently inflicted harm. They argue that the concept places an unreasonable burden on individuals and businesses and that it has become a tool for opportunistic litigation.
Others argue that the Duty of Care concept is a necessary and fair restriction on liability for negligently inflicted harm. They argue that the concept is essential to ensuring that individuals and businesses are held accountable for their actions and that it promotes responsible behavior.
The arguments for and against this position are as follows:
Arguments for the position that the Duty of Care concept operates as an unnecessary and unfair
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It places an unreasonable burden on individuals and businesses: The Duty of Care concept requires individuals and businesses to take reasonable care to avoid causing harm to others. However, the definition of “reasonable care” is subjective and can be difficult to determine. As a result, individuals and businesses can find themselves facing legal action even when they have taken reasonable steps to avoid causing harm.
It has become a tool for opportunistic litigation: The Duty of Care concept has been used by some to pursue opportunistic litigation. In some cases, individuals or businesses have been sued for harm caused by factors outside their control, such as unforeseeable events or the actions of third parties. This can be seen as an abuse of the legal system and can have a chilling effect on innovation and entrepreneurship.
Arguments for the position that the Duty of Care concept is a necessary and fair restriction on liability for negligently inflicted harm:
It promotes responsible behavior: The Duty of Care concept encourages individuals and businesses to act responsibly and take reasonable steps to avoid causing harm to others. This promotes safety and reduces the risk of accidents and injuries.
It holds individuals and businesses accountable for their actions: The Duty of Care concept ensures that individuals and businesses are held accountable for their actions. This is essential to ensuring that victims of negligence are compensated and that those who act recklessly or negligently are deterred from doing so in the future.
In conclusion, while the Duty of Care concept can be seen as a burden on individuals and businesses, it is also an essential element of the law of negligence. The concept promotes responsible behavior and ensures that individuals and businesses are held accountable for their actions. As such, it is a necessary and fair restriction on liability for negligently inflicted harm.
