Legal Issues in E-Healthcare Systems - E-Healthcare Systems and Wireless Communications - page 42

the forum is relevant to the issue in question. If a
contract is created in England, the English court
has jurisdiction over dispute concerning it. The
English courts have also jurisdiction if breach oc-
cur in England. If the breach is due to the failure
to perform a contractual obligation and the place
of agreed performance was England, the English
court will have jurisdiction.
The Brussels Convention and English Law in
RSC, Order 11, Rule 2a allow an express jurisdic-
tion clause to override all other determinations of
jurisdiction. The Brussels Convention, however
to protect the consumers Article 17 prohibits the
parties to select courts of vendors' county to hear
and dispose a case involving consumer contracts.
Thus, the provision allows an e-health user to do
forum shopping and select the best advantageous
form to hear and decide the case of his concern
in EU countries. However, such a luxury is not
available for the consumers in other countries.
Therefore many would be demotivated in utilising
the e-health facilities or shopping e-health prod-
ucts or services, because the laws are neither in
existence nor available to address the borderless
electronic frontier.

first established in the UK case of Donoghue v.
Stevenson [1932] AC 562. In this case, the plaintiff
and a friend visited a café and the friend bought a
bottle of a ginger beer from the cafe owner. The
owner opened the bottle, which was made of dark
opaque glass, and poured some of the ginger beer
into tumbler. Unsuspecting, the plaintiff drank the
contents, but when her friend refilled the tumbler,
the remains of a decomposing snail floated. The
plaintiff suffered shock and severe gastro-enteritis
as a result. As she cannot sue the retailer for com-
pensation because she had not bought the ginger
beer, she sued the manufacturer for her injury. The
House of Lords held that she would be entitled to
succeed if she could prove her allegation.
Lord Atkin in this case stated that a manufacture
that produces items which reach the consumers
without an intermediary needs to make sure the
items are safe. Accordingly
“a manufacturer of products, which he sells
in such a form as to show that he intends them to
reach the ultimate consumer in the form in which
they left him with no reasonable possibility of
intermediate examination, and with the knowledge
that the absence of reasonable care in the prepara-
tion or putting up of the products will result in an
injury to the consumer's life or property, owes a
duty to the consumer to take that reasonable care”
(Donoghue v. Stevenson [1932] AC 562, p. 599).
This case also established the general duty of
care where the manufacturers also were placed.
The general duty of care is called as neighbour-
hood principle. The principle was formulated in
the following word: “You must take reasonable
care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your
neighbour. Who then is my neighbour? The answer
seems to be persons who are so closely and directly
affected by my act that I ought reasonably to have
them in contemplation as being affected when I
am directing my mind to the acts or omissions
which are called in question”. According to this
principle, a person owes a duty of care to anybody
who is so closely and directly affected by the

Negligence

When the businesses, contracted with the e-con-
sumers for supply of medical goods and services,
and subsequently supplied, do not correspond to
the terms of contact, the e-consumers can bring an
action against the infringer in contract provided
the parties are privy to contract. However, if a
consumer decided to bring an action against a
manufacturer or service provider, he may bring
an action negligence tort in many countries that
follow commonwealth legal system. A negligence
tort is simply an accident that occurs when some-
one fails to pay attention and therefore, harms
another person or thing. The tortfeasor neither
wishes nor believes that his action will cause the
damage but in fact, it caused harm or injury. The
duty in negligence against a manufacturer was