Tort of Mike Jigger - Essay Example

Tort Assignment – Mike Jigger A review of the facts in this matter revealed the claims available to Mike Jigger, his Uncle Lewis, Aunt Maria, and cousin Soraya. Negligence is the most obvious claim available to Mike Jigger and his Uncle Lewis based on the events that occurred the night of the festival. Aunt Maria and Soraya appear to have a claim under the Fatal Accidents Act and a possible negligence claim for psychiatric injury as secondary victims.1 In order to establish liability for negligence, the four elements of negligence must be present.2 The first element is that the defendant owed the claimant a duty of care.3 Duty of care is based on the principle that “we owe our neighbor a reasonable duty of care” argued by Lord Atkin in the case of Donoghue v Stevenson.4 In that case, Mrs. Donoghue became ill after consuming a drink which contained a decomposed snail. The House of Lords found that she did have a valid claim against the manufacturer of the drink. A three-step criterion later emerged, which was solidified in the case of Caparo Industries Plc v Dickman.5 A duty between defendant and claimant exists in the presence of a reasonable forseeability of harm, a relationship of proximity between defendant and claimant, and it being just, fair and reasonable to impose liability on the defendant for his careless actions.6 In the present matter, the police were at the festival in order to provide security and crowd control. Based on the number of people in the park, a reasonable forseeability of harm did exist. The facts state that the amount of people in the park threatened to become a safety hazard. A relationship of proximity existed between the police and everybody at the festival, since their job was to provide security at the festival. Therefore, it seems fair, just and reasonable to impose liability on the police for injuries sustained at festival since they owed a duty to ensure the safety and security of those in the park, including Mike Jigger and his Uncle Lewis. Once it is established that defendant owed a duty to the claimant, a breach of that duty must have occurred. Based on the criteria in Nettleship v Weston, an objective test of defendants’ actions determines whether a breach of duty occurred.7 The test asks whether the actions of the defendant were below the threshold of a “reasonable man”.8 Defendant must perform his job as a reasonably skilled and competent person.9 On the night of the festival, in an effort to control the crowd, the police erected barriers and cordoned off the area of the park where the band was playing. By doing so, they had not lessened the number of people, but had virtually trapped the people that were there. A “reasonable man” would not trap a crowd of people when there was already a concern about the number of people in the area. Instead, perhaps dispersing the crowd or refusing entrance to additional people would seem better alternatives. Simple causation is established if “but for” the actions of the defendant the harm would have occurred.10 The case of McGhee v National Coal Board is usually followed when determining causation.11 With regard to the Jigger matter, since the police had trapped the people around the stage area, they had no means of escape when the crowd panicked. The surging crowd was also trying to escape, crushing anybody in their path, causing Mike Jigger and Uncle Lewis’ injuries. Finally, the fourth element of negligence is the injury cannot be very remote from the breach that occurred. In the present matter, the claimants’ injuries occurred almost immediately after the breach. Therefore, this element of negligence is satisfied. Based on a review of the facts, it appears that Mike Jigger and Uncle Lewis can establish a claim against the police for negligence. None of the three main defenses to negligence liability appear to be available to the police in this matter. Volenti non fit injuria is a Latin phrase meaning “to the willing, no injury is done.” This defense applies when a claimant consents to the risk of harm, either expressly or implicitly.12 Neither Mike Jigger nor Uncle Lewis in any way consented to the risk of injury by being at the festival. They both had a reasonable expectation of enjoying the New Years Eve festival without suffering injuries. Contributory negligence does not appear to be a valid defense for the police in the Jigger matter either. This defense is mitigatory and reduces a claimant’s damages by the percentage the claimant contributed to the harm they suffered.13 Mike Jigger and Uncle Lewis did not engage in any sort of negligent behavior on the night of the festival. Therefore, the claimants in the Jigger matter in no way contributed to the injuries they suffered. In addition, the third negligence defense of illegality does not apply in this matter either. According to this defense, a defendant’s liability may be reduced or totally extinguished if the alleged negligence occurred while the claimant was involved in an act of wrongdoing or an illegal act.14 Obviously, based on the facts, the Jigger claimants were not involved in any act that could be considered wrong or illegal. However, negligence claims may also exist against the Mayor of London and Regents Park. Depending on who hired the police to provide security for the festival, that employer may be vicariously liable to the claimants. Vicarious liability holds employers liable for the torts committed by their employees.15 In order for vicarious liability to apply, a relationship between the employer and employee must exist and the tort must be committed in the course of employment.16 Currently, the test used by the courts to establish vicarious liability is based on the case of Lister v Hesley Hall Ltd.17 The court in Lister held that torts that were “closely connected” to an employee’s duties would be the liability of the employers.18 In the Jigger matter, liability could potentially shift from the police to their employer. First, the police must establish that they were hired as employees to provide security for the festival, possibly by the Mayor of London or Regents Park. If an employment relationship can be established, the negligent actions of the police must be shown to have occurred in the course of their employment. The facts clearly show this to be the case since the police negligently trapped festival goers while attempting to perform their security duties at the festival. Should vicarious liability be found to apply in the Jigger matter, negligence liability would shift from the police to their employer, thereby absolving the police of liability in the matter. The most common remedy available to claimants in negligence cases is monetary damages. For Mike Jigger, this would include compensation for his numerous injuries, as well as for ongoing care as his condition is permanent and may deteriorate even further in the future. Mr. Jigger may also be entitled to additional compensation since as a result of his injuries he will no longer be able to perform as a singer. Since a claim for negligence may also be established for Uncle Lewis, his family (i.e. Aunt Maria and Soraya) would be entitled to compensation under the Fatal Accident Act 1976. The Fatal Accident Act 1976 entitles a victim’s spouse or dependent to ?11,800 in bereavement damages.19 Mike Jigger may also have a valid claim for the intentional tort of false imprisonment. A successful claim for false imprisonment must contain the following elements: confinement is intentional and/or not consented to, is within fixed boundaries, is a result of the actions of defendant, and is the cause of harm to the claimant.20 Confinement may be achieved by imposing physical barriers, using force, threatening to use force, asserting legal authority or by omission.21 In the Jigger matter, in an effort to control the crowd at the festival the police negligently “cordoned off” the area near the stage, as well as placed barriers in front of the seats in the first row. Mike Jigger did not consent to the placement of the barriers by the police. The police put the barriers up intentionally, leaving the people on the stage and in the front rows confined within fixed boundaries. The police erected the barriers as a method of crowd control, thereby asserting legal authority. Once the crowd began to panic, people on and around the stage and in the front rows were trapped and crushed by the crowd and had no means of escape. Mike Jigger, in an attempt to save his uncle, attempted to escape the area but was forcefully pulled back by police. The facts appear to support a claim for false imprisonment on behalf of Mr. Jigger. However, oftentimes the courts have denied these claims either because the confinement was found to be legally authorized or because all of the elements were not met.22 Aunt Maria and Soraya may also have a valid negligence claim for psychiatric injury as secondary victims.23 Based on the case of Alcock v Chief Constable of South Yorkshire Police, a three stage test was developed to determine whether a secondary victim has a valid claim.24 The three stages are as follows: 1) a close relationship of love and affection exists between the primary and secondary victim; 2) there is temporal and spatial proximity between the claimant and the accident; and, 3) what caused the accident, or proximity of perception.25 A close relationship of love and affection obviously existed between the primary victim, Uncle Lewis, and the secondary victims, his wife and daughter. As close family members, viewing the accident would obviously cause great emotional distress for Aunt Maria and Soraya. Watching the accident on television as it happened may be sufficient to establish proximity. However, the courts have ruled that seeing a video or the aftermath of an accident is not sufficient to establish proximity.26 Therefore, it is uncertain whether Aunt Maria and Soraya would succeed in a claim for negligence as secondary victims. Table of Cases Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 Caparo Industries Plc v Dickman [1990] 2 AC 605 Donoghue v Stevenson [1932] AC, 532, 580 McGhee v National Coal Board [1972] 3 All ER 1008, 1 WLR 1 McLoughlin v O’Brian [1983] AC 410 Nettleship v Weston [1971] 3 All ER 581 Bibliography Deakin S, Johnston A, and Markesinis B, Tort Law (Oxford University Press 5th Ed. 2003). House of Lords Appellate Committee "Judgments - Austin (FC) (Appellant) & another v Commissioner of Police of the Metropolis (Respondent)". 2009-01-28. http://www.parliament.the-stationery-office.com/pa/ld200809/ldjudgmt/jd090128/austin-1.htm. Retrieved 2011-01-09. Steele J, Tort Law: text, Cases, & Materials (Oxford University Press 2007). www.compactlaw.co.uk/legal_glossary/c/contributory_negligence.html. Retrieved 2011-01-09. Read More