Duty of Care for Negligent Acts - Essay Example

? ASSIGNMENT COVER SHEET (adapted for LAW1100 major essay purposes) UNIT LAW1100 Legal Framework I (PRINT CLEARLY) ????? ????? FAMILY NAME FIRST NAME STUDENT ID. NO. ????? NAME OF LECTURER (PRINT CLEARLY) Brad Moore DUE DATE 18/4/2011 Topic of assignment Duty of Care IN THE LAW OF NEGLIGENCE Group or tutorial (if applicable) ????? Course ????? Campus ????? I certify that the attached assignment is my own work and that any material drawn from other sources has been acknowledged. Copyright in assignments remains my property. I grant permission to the University to make copies of assignments for assessment, review and/or record keeping purposes. I note that the University reserves the right to check my assignment for plagiarism. Should the reproduction of all or part of an assignment be required by the University for any purpose other than those mentioned above, appropriate authorisation will be sought from me on the relevant form. 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Your LAW1100 on campus essay should have not less than 2800 effective words but not more than 3200 effective words (without the express permission of the Unit Coordinator) (see LAW1100 Unit Plan (February, 2011, page 9). This essay has ………2801…. words (in determining the number of words, do a ‘word count’ from the beginning of your Introduction to the end of your Conclusion, and subtract all headings, sub headings, direct quotations and in text references therein from the result). 2. Your LAW1100 essay should use at least 6 to 10 quality academic reference sources (i.e. in terms of LAW1100 requirements, texts and journal articles – see LAW1100 on campus Essay Preparation Kit (2011), page 19). This essay has …13… quality academic reference sources (in determining the number of quality academic reference sources for LAW1100 purposes, add up the total number of end references and subtract those which are not texts or journal articles; do not include the number of cases in this count – see point 4 below). 3. Your LAW1100 essay should cite your end reference sources (collectively) on at least 30 occasions in the body of your essay (see LAW1100 on campus Essay Preparation Kit, page 20). This essay has …16… in-text reference entries. (in determining the number of in-text references used, count the number of times your end reference sources have been cited in-text in total – note that a few of your reference sources will likely be cited in-text more often than others; do not include the number of cases in this count – see point 4 below). 4. Your LAW1100 essay should use at least 8 to 10 case authorities (see LAW1100 on campus Essay Preparation Kit, page 17). This essay uses …16… cases (in determining the number of cases, add up the number of cases in your Table of Cases, which should reflect the cases cited in the body of the essay). I acknowledge that the information relating to my LAW1100 essay in the above conformance statement is true and correct to the best of my knowledge. Name: __________________________________ Student Number: ______________ LAW1100 LEGAL FRAMEWORK ON CAMPUS 01 2011 MAJOR ESSAY ASSIGNMENT (DUE MONDAY WEEK 8) Law of Negligence: Duty of Care An essay by __________________________ (your name) TABLE OF CONTENTS Page 1.0 Introduction ………………………………………………………………. 3 2.0 Background….……………………………………………………………. 3 3.0 Duty of Care for Negligent Acts ……………………………………….… 4 3.1 Historical Approach ……………………………………………………. 4 3.2 Contemporary Approach ……………………………………………….. 5 3.2.1 Reasonable foreseeability ………………………………………… 5 3.2.2 Analogies – recognized duties of care ……………………………. 5 3.2.3 Neighbourhood factors …………………………………………… 7 3.2.4 Social policy ……………………………………………………… 8 4.0 Duty of Care for Negligent Advice ………………………………….…… 9 4.1 Development of the law …………………………………..………..…... 10 4.2 Shaddock test, reliance and assumption of responsibility…….……..…… 11 5.0 Analysis……………….……………………………………………………. 11 5.1. Reasonable Forseeability……………………………………………....... 11 5.2. Pure Economic Loss ……………………………………………………. 11 5.3. Negligent Advice ………………………………………………………... 6.0 Conclusion ………………………………………………………………… 11 7.0 End References and Table of Cases ………………………………………. 12 1.0 Introduction Negligence is a form of tort which is often confused with carelessness, although there is significant difference between the two, since one may exercise due care and yet fall short of the expectations of reasonable competence expected of them. Furthermore, another significant difference lies in the intent. It is highly likely that the defendant is fully aware of the consequences of his actions which is likely to cause considerable damage to the plaintiff, and yet, choose to ignore the facts and deliberately act negligently. Negligence can best be described as the absence of diligence. It refers to an act which is culpable since the defendant did not exercise due care which would protect the plaintiff, from risks which were reasonably foreseeable. 2.0 Background Historically, negligence has meant the absence of due care, and the failure to do something which a reasonable person could have done in similar situation. Earlier, there was no remedy for negligence in law. However with the development of law over the years, the principle of negligence began to be recognized as a punishable offence, if it was proved beyond doubt that the act could have been avoided, if the defendant had foreseen the consequences. Initially, the duty of care was ascertained according to the nature of activity in question such as the possession of dangerous or hazardous goods or driving on a highway. Almost a century ago, prior to the development of duty of care law, the only situations which invoked punishment and liability on the defendant were, the recovery of damage in accordance with the extent of the crime or the extent of the injury suffered by the person or his/her property. Before 1932 the acts of negligence were decided on a case to case basis, and in situations where the relationship between the parties involved was direct and pre-existing. The situation however, changed significantly with the Dononghue V Stevenson case. 3.0 Duty of Care for Negligent Acts 3.1 Historical Approach According to the historical approach, the test of duty of care was determined on the basis of two key factors: Reasonable forseeability and proximity. The duty of care is an element of the doctrine of negligence, which originated in the House of Lord's decision in Dononghue V Stevenson [1932] AC562 (Pentony et al., 2011). In this case, the plaintiff sustained injuries after consuming a bottle of beer at a bar, which her friend bought for her. The bottle contained decomposed parts of a snail. It was argued that the plaintiff cannot press charges for negligence since there was no contract involved, and hence no direct relationship between the defendant and the plaintiff, as she did not purchase the bottle. It was held that under the Defendant owes the Plaintiff, under the Duty of care, despite there being an apparent absence of "proximity" or a direct contractual relationship between the two parties (Pentony, 2011). On the basis of the above case, Lord Atkins stated that the principle of love thy neighbour, in law, can be applied and translated as one must not injure or harm their neighbours, the neighbours being people who are closely or directly affected by the act of the defendant and who could have reasonably foreseen the repercussions of their acts. He further stated that people are expected to exercise due care to avoid acts or omissions which can be reasonably foreseen and which are likely to cause harm or injury or any financial loss to one's neighbours (Handley, 1996, 278). Proximity in the case refers to the relationship between the Defendant and the Plaintiff. It could be physical, contractual, or causal, which invokes the duty of care element. It is distinct from the forseeability requirement, and restricts the basic test of forseeability. In the case of Dononghue V Stevenson, the plaintiff did not have a direct contractual relationship with the defendant, but had suffered injuries on account of negligence on the part of the defendant. Thus, this case helped in establishing the cause of action for negligence based on proximity of relationship between the Defendant and the Plaintiff, and the concept of 'reasonable forseeability' of damage, harm of injury caused to the Plaintiff, in the process, which is now regarded as a foundation for cases based on negligence. 3.2 Contemporary Approach 3.2.1 Reasonable foreseeability The element of reasonable forseeability was first established in the ground breaking Donoghue v Stevenson case. The rule required that the individuals must excercise reasonable foresight while acting in a situation and must take due care so as to not cause any physical or financial harm or injury to the person or property of others. 3.2.2 Analogies – recognized duties of care Home Office v Dorset Yatch Co Ltd (1970) The basic principles identified in the Dononghue V Stevenson case, were successfully applied in this case. This case involved a group of delinquents who were under the care of Home Office - a care institution, and managed to escape the attention of the carers, to cause potential damage to the property belonging to the Dorset Yatch Co Ltd. The defendant alleged that the Home Office was negligent in their duties, and did not ensure proper measures to avoid such an incident, and failed to supervise the group. The court held that the Home Office was liable to the Yatch Co., based on the pronouncement of Lord Atkins, in the Dononghue V Stevenson case and also stated that it was reasonably foreseeable that the boys would resort to such acts, if left unsupervised (Steele, 2007; Mitchell, 2008, Pp.276). Hill V Chief Constable of West Yorkshire [1989] AC 53 In this case the plaintiff sued the Chief Constable, on behalf of her daughter's estate, who was the last victim of the infamous 'Yorkshire Ripper' - Peter Sutcliffe, a chain murderer who was later charged for the crimes. The plaintiff argued that the Yorkshire police department showed negligence in investigating the case leading to the death of her daughter. The trial judge dismissed the plaintiff's claim. The House of Lords too, dismissed the appeal on the grounds that there was an absence of proximity between the parties involved (Lunney, Oliphant, 2008; Pp. 145 - 147). The main considerations in case of a duty of care includes three elements: whether there exist a reasonable foresight of an impending danger or harm; whether there exists a proximity of relationship between the defendant and the claimant; and whether it is fair, just or reasonable to hold that the defendant owes the claimant a duty of care (Oughton, Marston, Harvey, 2008, Pp. 51). In the above mentioned case, the proximity might have been established partly, but the proximity; merely describes the legal relationship existing between the two parties, and does not define it. Similarly in Ancell V McDermott, it was held that public bodies do not have an express liability towards the general public, to protect or warn them from against road accidents or hazards and hence cannot be held accountable to the public on the grounds of public policy (Harris, 2007, Pp. 264). In Donoghue V Stevenson, Lord Atkin had argued that" "Acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief. In this way, rules of law arise which limit the range of complainants and the extent of their remedy” (Hodgson, Lewthwaite, 2007, Pp. 11). The recognized duties of care include - Reasonable forseeability, proximity, reliance, and compassion (Latimer, 2009, Pp. 214 - 216). 3.2.3 Neighbourhood factors Forseeability alone does not suffice, in cases of an act of negligence. Some other relevant facts also needs to probed such as whether there exists any liability on the part of the defendant to the plaintiff; and whether the defendant committed a breach of that duty or liability resulting in substantial loss or damage to the plaintiff. According to Lord Atkins' pronouncement in the historical case, the relationship of proximity must exist before any duty of care arises, although the scope of the said duty may vary according to each circumstances of the case. 2. Proximity: Proximity refers to the relationship between the Defendant and the Plaintiff. It could be physical, contractual, or causal, which invokes the duty of care element. It is distinct from the forseeability requirement, and restricts the basic test of forseeability. 3. Reliance: This is one of the most significant elements of duty of care. This element can be used to invoke the duty of care, when coupled / assisted by other two elements i.e. the knowledge of the defendant regarding the likelihood of potential damage and his/her ability to control their actions and prevent such a damage; and secondly the vulnerability of the victims. 4. Compassion: Compassion does not invoke the element of duty of care, and does not imply a liability on the part of the defendant to assist the victim in distress which is not caused by him / her. For instance an onlooker does not have any liability to assist the victim of an accident and hence cannot be held responsible for negligence or duty of care (Latimer, 2009, Pp. 214 - 216). 3.2.4 Social policy The key policy considerations referred by the Court in cases involving Duty of Care include: (1) Public expectation and reliance: This policy consideration is applied with a view to restrict the invocation of the duty of care principle in certain crucial circumstances. It basically seeks to emphasize the point that the general public must be able to depend and trust the professional judgement and the law must not be replaced by legal judgement. This policy consideration can be applied in cases of negligence involving professional negligence where the proximity between the parties are public bodies, who are generally excluded from such cases, and enjoy immunity from legal action For example the case of Hill V Chief Constable of West Yorkshire [1989] AC 53. Similarly in case of Barett v London Borough of Enfield [2001] 2 AC 550 In this case, the plaintiff who was in the care of local authority, since the age of 10 months till the age of 18, had moved nine times between various foster placements. He claimed that he suffered from psychiatric illnesses on account of negligence on the part of the local authorities. The county court struck out his claim on the grounds that the consideration of fairness, justice and reasonableness identified by Lord Browne-Wilkinson in X v Bedfordshire CC also applied to preclude any claim in negligence by a child who is in the care of local authorities and secondly, the plaintiff's complaints were regarding matters involving a public body, who were merely performing their duties in accordance with the statutory responsibilities levied on them by law (Lunney, Oliphant, 2008, Pp. 520). (2) Self-responsibility / Duty to care for own interest This factor states that the duty of care does not apply in cases where the claimant himself acted carelessly, fully knowing the consequences and damages that he would suffer on account of such an act. Thus if the claimant fails to protect himself against risk he cannot seek compensation on the grounds of duty of care. This policy consideration is also applicable between the employee and employer relationship whereby an employee cannot seek damages from the employers, if they act irresponsibly while undertaking activities which involve an inherent risk (Magnus, Martin-Casals, van Boom, 2004 Pp. 110). (3) The Floodgates Argument: This is one of the most common policy considerations which is applied by the courts of law in order to avoid the application of duty of care principle in novel, open-ended situations. This policy consideration dates as far back as the Victorian Railways Commissioners v Coultas (1888) PC where the courts were of the opinion that the application of duty of care principle, in similar situations, might lead to a flood of similar cases, which the courts would have to restrict by way of imposing policy decisions (Hodgson, Lewthwaite, 2007, Pp. 129). 4.0 Duty of Care for Negligent Advice 4.1 Development of the law The tort of negligence is a relatively new development in the field of law. Initially, in cases involving direct harm or injury to people or property attracted charges and / or strict action, on the basis of trespassing. The elements such as intention or fault were not taken into consideration whereas in cases of indirect injury or harm to people, the liability of such an injury was dependent on the evidence of some element of fault. However, over the years and due to industrialization it was soon realized that strict liability for direct trespass was incapable in the changing situations, and hence the liability for personal injury to person or property began to be based on intention and fault, instead of the cause principle. Historically, negligence was synonymous as carelessness in situations where carefulness was practically mandatory. However, the modern law of negligence was developed by the year 1883, in Heaven v Pender, wherein a painter who was employed by a painting contractor sustained injuries while on job. The painting contractor was hired by a ship owner, without any contractual relationship. It was observed that whenever any individual is caught in a situation whereby the lack of use of ordinary skill and care, is likely to cause harm or injury to either the person or the property of the other, a duty of care arises, to avoid such an impending danger (Steele, 2007, Pp. 139). 4.2 Shaddock test, reliance and assumption of responsibility In Shaddock v Parramatta, Parramatta City council offered wrong information verbally as well as written, i.e. on the phone as well as on a certificate. The information was sought with regard to road widening proposals. It was held that a public body falls under the same obligation as those levied on individuals, involved in the business of providing information, especially where such information was available to them more readily as compared to others. The fact that the information provided was reasonably important and that the public body, was actively involved in supplying the information, it is said to have entered into the decision making process (Hocking, Smith, 1999, Pp. 77). 5.0 Analysis 5.1 The concept of forseeability is used widely as a cornerstone for all cases of negligence in the duty of care. This element seeks to restrict the responsibility of the person accused of wrong doing, and prevent those who are held liable for actions which fall way beyond the purview of their wrongful acts and / or moral accountability. The basic underlying thought behind this principle is that the consequences of an act must be based on the choices made by the defendant which resulted in the said / resultant consequences. The morality of the principle can be observed from the choices that the defendant might or should have made prior to their wrongful acts, which led to disastrous consequences, causing harm or injury to the plaintiff. 5.2. Pure Economic loss: The law has mostly covered cases of physical injury or harm caused to the plaintiff on account of negligence on the part of the defendant, however, those covering or related to only economic loss, and no physical injury whatsoever, has not been discussed at length. The law remains ambiguous in such cases, where the damage caused is other than phyical harm. For instance, if the negligence on the part of the defendant leads to closure of the plaintiff's business, leading to severe economic losses, such cases have so far not been covered by the courts of law, with one final conclusion or precision. Also, the loss on account of a mere 'chance' or 'fate' is not discussed or dealt with. For instance, this situation may arise in medical profession where the patient's chances of survival are minimal, and the same patient suffers damages on account of negligence of the doctor. What will be the compensation in such a case, where the patient in any way, did not have much chance of survival. 5.3. The tort of negligent advice or negligent misstatements refers to the damages or injury caused to the claimant on account of incorrect advice or use of misstatements which failed to warn the user against impending danger. Negligent advice can be sued for, in the following circumstances: if it is given by a person who occupies a position of special skill or knowledge; and the person to whom the advice was given acted upon it, leading to financial loss in the process. There is a difference between the controls used in cases involving physical injury and those involving economic loss. This is especially so in cases where the element of reasonable forseeability is applied in case of Duty of care related to negligent misstatements or advice. 6.0 Conclusion There have been significant changes over the decade with regard to laws related to duty of care and negligence in Australia. The cases studied for the purpose, indicate that the duty of care may arise in situations where one of the parties is negligent towards their duties, acts or advice and offers misinformation which is used and applied by the claimant resulting in financial loss or physical damage. The defendants will be held guilty if it is proved that they did not exercise due care and that they had prior knowledge that their actions might cause potential damage. For duty of care to arise, it is necessary for prior knowledge and reasonable foresight to exist as they are the essential elements, in such cases. The standard of care principle states that the magnitude of harm is the risk or threat posed to the victim, which has the potential to impair their quality of life to a considerable extent. For instance in the case of Paris v Stepney Borough Council, it was held that the employer of a workman with only one good eye, had a greater duty of care towards him as compared to that towards rest of the employees. This is because the magnitude of harm, with regard to an eye injury is relatively greater in magnitude, to the one-eyed mechanic as compared to the other employees. In his case, any further injury would result in total blindness. This sets the standard of care in accordance with the magnitude of harm 7.0 End References and Table of Cases Handley, P., (1996). Business law: an active learning approach, Wiley-Blackwell Publication Harris, P., (2007). An introduction to law. Cambridge University Press, Pp. 263-266 Harpwood, V., (2008). Modern tort law, Taylor & Francis Publication, Pp. 129 Hocking, B. A., Smith, A., (1999). Liability for negligent words, Federation press, Pp. 77 Hodgson, J., Lewthwaite, J., (2007). Tort law textbook. Oxford University press, Pp. 9 - 13 Latimer, P., (2009). Australian Business Law. CCH Australia Ltd., Pp. 213 - 216 Lunney, M., Oliphant, K., (2008). Tort Law: Text and materials, Oxford University Press, Pp. 145 - 147 Magnus, U., Martin-Casals, M., van Boom, W. H., (2004). Unification of tort law: contributory negligence, Kluwer Law International, Pp. 110 Mitchell, A., (2008). AS Law. Taylor & Francis Publication Murphy, J., Street, H., (2007). Street on torts. Oxford University Press, Pp. 99 - 101 Oughton, D., Marston, J., Harvey, B., (2008). Q and A: Law of torts. Oxford University Press, Pp. 50 - 55 Pentony, B., Graw, S., Lennard, J., & Parker, D. (2011). Understanding business law (5th ed.) Steele, J., (2007). Tort law: text, cases and materials, Oxford University press. Table of Cases: Sr. # Dononghue V Stevenson [1932] AC562 1 Home Office v Dorset Yatch Co Ltd (1970)Hill V Chief Constable of West Yorkshire [1989] AC 53 2 Railways Commissioners v Coultas (1888) PC 3 L Shaddock and Associates Pty Ltd V Parramatta City Council (1981) 150 CLR 225 4 Heaven v Pender (1883) 11 QBD503 5 Victorian Railways Commissioners v Coultas (1888) PC 6 Barett v London Borough of Enfield [2001] 2 AC 550 Read More