We've blogged about physician's liability which arises when a non-English-speaking patient is treated without a proper informed consent, in the absence of a competent medical translator. We've also blogged about employer's vicarious liability, which arises in linguistically and culturally diverse workplaces. Interestingly, the lack of foreign language translation and language barriers can even lead to personal injuries. In order to prove liability in a personal injury tort case, one must show that the other party was negligent.
The elements of negligent behavior include:
Duty of care
Breach of that duty
The breach being a proximate cause
The breach caused harm in fact.
So can the fact that a plaintiff did not understand English create a special duty of care?
That depends. Although there is no specific case law on point, a hypothetical can illustrate the point.
If a police officer approaches an individual and threatens to use force (such as a Taser) if a specific behavior does not stop and the individual is unable to understand English and thus fails to obey the officer's warning and, as a result, is injured, can a claim of negligence be brought?
It would seem that if the officer was aware of the fact the individual does not understand English, a special duty of care to a non-English speaker would arise in order to protect the non-English speaker from undue harm. If the officer, or other defendant, fails to take proper steps to prevent harm through misunderstanding arising from the language barrier, the logical conclusion would be that a breach of duty occurred, which caused the injury.
To read our legal translation blog post "Foreign Language Translators & Interpreters, and Competent Representation of Non-English-Speaking Clients", click here.
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