Information Technology Reference
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users, when there is physical or property injury
or death. It does not cover emotional injury. Even
financial loss is covered only in limited cases.
The major problem on this tort in benefiting the
e-health system users is that the user alleging
negligence needs to show fault of the defendant.
Proving fault in the electronic environment on a
specific defendant is extremely difficult, as there
are a number of parties ranging from manufacturer,
service provider, ISP, portal site operators, search
engines to Intranet operator are involved. In the
event that if fault is proven, still he will not be
able to recover any damages if the defendant is
insolvent. Therefore, not only finding fault but
also a solvent defendant is important to get some
compensation for the damage or injury done to the
innocent e-health system users. Failure of finding
an insolvent defendant will deprive the plaintiff
from getting any compensation.
The other problem according to the Pearson
Commission's report is that the tort claimants were
not adequately compensated for all the injury.
Accordingly, 60% of the successful claimants
between 1973-1976 obtained awards of less than
500 pounds and only 1% got over 1000 pounds.
The other difficulty that discourages the claimant
from suing in negligence is the longer period that
the case takes to settle. A longer period is necessary
to prove negligence, as it is involved process of
investigation, expert consultation, interviewing,
and commissioning of technical experts. That
means, the claimant needs to put up more money
if he decided to proceed with the litigation. Due
to this many try to settle outside court even if the
compensation he receives is less than what he
deserves. Basically the claimant in a negligent
suit needs to battle between three uncertainties:
Uncertainty concerning the court's ruling on li-
ability; uncertainty as to the payment of cost; and
Uncertainty whether an offer will be issued, so
that an early settlement can be agreed and it will
help avoiding trial and the cost.
According to Civil Justice Review of UK, the
risk of bearing all the cost is substantial; as such
the claimants choose to settle the claims out of
court. This risk is heavier on economically weaker
party; therefore they are induced to settle it short
of trail (Sarabdeen, 2009). The claim in negligence
to certain extent will only be able to protect the
e-consumers. There are people who argue that
negligence tort is very useful to the consumers
since it can operate as deterrent mechanism to
future negligence. This acts as deterrence in the
sense that the legal proceeding together with the
adverse publicity may affect the business, and
when the liability is established, it can be costly to
redesign or recall the products or services. How-
ever, it should be noted here, with the deterrent
effect of negligence, that the plaintiff will not be
able to benefit from the damage or injury suffered.
The concern is whether the law of negligence tort
is in a position to compensate the suffering of the
plaintiff satisfactorily?
CONCLUSION
The analysis of various laws and regulations
reveals that the level of protection available for
e-health service users is not adequate. This would
necessarily suggest that existing laws need to be
amended or else fresh legislation be made avail-
able to provide better protection. The following
could be taken as possible recommendations
to meet this purpose. The laws on e-contract in
many countries are not modified to suit elec-
tronic transaction. Liability of e-producers and
service providers should be regulated by statutes
in general as there are restrictions in recovering
damages under negligence tort. Economic loss
should also be addressed adequately by legisla-
tive amendments. Many countries failed to ad-
dress the issue on privacy in their relevant laws
adequately. Thus following the EU Directive of
Data Protection would facilitate the adoption of
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