Question 1

ISSUE:

Whether Marie can take legal action against Dr. Lam and The General Hospital under
the negligence?

LAW:

Negligence can be defined as a tort wrong which comprises of certain elements that
need to be proved before liability may be established and damages imposed on the
tortfeasor.

Legal principles:
1) Duty of care
The breach of duty and the resulting damage may give rise to liability in negligence.
The breach of moral or social duty generally does not give rise to liability in negligence.
The duty of care must arise from some "relation" or some "proximity" between the
parties. For example, between manufacturer and consumers.

For the example case of Donoghue v Stevenson [1932] AC 562. In this case, the
defendant who is a ginger-beer manufacturer had sold gingerbeer to a retailer. The
ginger bottles were opaque. A bought a bottle and entertained her friend, the plaintiff
who drank the ginger-beer. It was alleged that when A refilled the glass, along with the
ginger-beer came the decomposed remains of a snail. The plaintiff suffered shock and
was severely ill as a consequence. Held,The House of Lords held that the test to
determine the existence or otherwise, of such duty, was whether the plaintiff was the
neighbour of the defendant. The defendant or the manufacturer owed a duty of care
to their consumers who suffered personal injury from the goods based on the
neighbourhood principle.
2) Breach of duty

For a defendant to be liable to negligence, the defendant must not only owe a duty of
care to act reasonably to the plaintiff but must also breach that duty.Happens when
the defendant does something which is considered below the minimum standard of
care required of a reasonable man.

For example the case of Kow Nang Seng v Nagamah & Ors (1982) 1 MLJ 128
Facts: In this case, the plaintiff involved in an accident and his left leg had to be
plastered. The plaster was too tight, and plaintiff complained of pain. The doctor did
not act on the complaints immediately and consequently the leg had to be amputated.
Held, The defendant was liable as all doctors were aware that if plaster were applied,
blood circulation would be affected. The doctor was also negligent for only giving
painkillers when the patient complained of the pain. The reason that all doctors were
busy because that day was "surgery day" was not accepted as a defence.

3) Damage/injury

Plaintiff in negligence case must prove that he has suffered damage/injury as a result
of the defendant's breach of duty.

For the example case of Scott v Shepard, D threw a lighted squib into a marketplace.
It was picked up bystander and threw it across the market to protect himself.
Unfortunately, the squib landed in the goods of another merchant who immediately
grabbed the squib and tossed it away, accidentaly hitting P in the face just as the squib
exploded. The explosion caused P to lose one eye. Held, The act of the 3rd party who
last threw the squib was an act of self-preservation. D, who originally threw the squib
was liable.
Application:

The application of the first ingredient of negligence. Dr. Lam suggested surgery and
promised Marie that she would recover completely. Dr. Lam mismanaged a scalpel
during the procedure, which may have been prevented. This demonstrates that it was
a foreseen cause; if it hadn't been for Dr Lam, Marie would not have been injured. As
a result, the duty of the first element of negligence has been met.

The use of the second element of negligence. Contact with surgical equipment during
surgery caused damage to the major nerves. As a doctor, he should be concerned
about his patients' health, yet what happened to Marie was the polar opposite. The
accident may be avoided if Dr. Lam was more cautious. As a result, this demonstrates
that the responsibility of the second element of negligence has been met.

The application of the third element of negligence. Marie awoke with no sensations
from the waist down. During the procedure, her main nerves had been injured by
contact with a surgical tool. The accident may have been avoided if Dr. Lam had been
more cautious. As a result, the third element obligation of negligence has been
satisfied.

Conclusion:
To sum up, after approving all the elements, Marie can take action against Dr. Lam
and the General Hospital under the law of Defamation because all elements can be
proven.