Negligence, Liability for Negligence, and Defences against Negligence - Essay Example

? Law in Practice Word Count: 3125 words (12 pages Write a report, setting out the main issues involved in taking a civil action for personal injury in respect of this accident, (include in your report the actions and/or solutions to be taken where appropriate). I. Introduction Following is the situation under consideration. Mr. David Balls, aged 41, has mentioned that he is married to Edwina Balls, 32 years of age. This couple has been married for a total of 8 years. On Valentine’s Day of 2011 (February 14th, to be exact), Edwina did not return home. A man named Harry Williams phoned Mr. Balls and informed him that he and Edwina had been having an affair for the past three months, and, in fact, she was asleep in his bed right now. David found out where Mr. Williams was calling from and he rushed out of his home to go to Harry’s house to confront him. David was driving from his home along Romford road and through the traffic lights (East) at Manor Park junction towards Ilford where Harry lives. At that moment, another driver came from the right and smashed into the driver’s side (offside) of his car. The police and the ambulance were alerted to the scene. David sustained bad bruising to his right leg but otherwise was unhurt. The other driver, however, had been thrown through her windscreen onto her own bonnet, and then onto the ground. The other driver—Katherine Buckingham, age 31 years old—sustained whiplash, a broken nose, concussion, and a badly bruised shoulder. Katherine also sustained cuts on her face and arms from the windscreen. Police officers told David that Katherine had not been wearing a seatbelt. Both drivers were breathalysed but neither was over the alcohol limit for driving. Everyone owes a duty of care to those affected by his or her actions and is liable in law for his or her negligence. Tort is the law that relates to civil wrongs, and in particular the laws relating to negligence. Personal injury is a particular form of negligence which can be brought to the courts on the part of the plaintiff. Mr. Balls does have a case for suing Ms. Buckingham, because personal injury consists of doing damage to someone’s person. However, Katherine may have a case when it comes to Mr. Balls running into her on the road, since what he did could be considered driving recklessly in a fit of passion—similar to how second-degree murder is not premeditated but is a crime of passion. Katherine might not be liable for David’s wrongdoing here, although she could be given a fine for not having worn her seatbelt. Here, the law of tort, negligence, and duty of care will be sufficiently explained. II. Law of Tort ‘Tort’ is the French word for a wrong. Torts are civil wrongs. Civil wrongs can be contrasted to criminal acts although one action might result in a potential liability for two claims, one civil and one criminal. If D runs into P on the road, D is liable to be prosecuted for civil sanctions such as fines, community penalties or imprisonment, which might be applied by the civil courts. But P can also sue D in the civil courts for any damages for the injury and loss that has been suffered. Negligence is a tort. III. Negligence, Liability for Negligence, and Defences Against Negligence The case of “Donoghue –v- Stephenson” (2011), set out the basic principles of negligence in English law (pp. 1). The case concerned food poisoning suffered by Mrs Donoghue whose bottled ginger beer was contaminated with the remains of a decomposed snail. As Mrs Donoghue didn’t buy the ginger beer (her friend did) she had no action in contract law (so she wasn’t a party to that contract). The case decided that, in English Law there must be and is a general conception of relations giving rise to a duty of care. The liability for negligence is based upon a general public sentiment of wrongdoing for which the offender pays. The case created the concept of negligence as an action in civil law allowing injured parties to sue wrongdoers for their loss and damage. To find a defendant liable for negligence any plaintiff will have to satisfy the court of the following: That the defendant must have owed the plaintiff a duty of care; That the defendant through an act or omission breached that duty; This breach caused loss to the defendant; The loss is not too ‘remote’; and That the defendant has no relevant defence. From what has been outlined above, David owed a duty of care to avoid acts or omissions which he might have reasonably foreseen could injure his neighbour, Katherine. For an injured party to bring an action for negligence against a defendant they must show that the defendant breached that duty of care. The test of whether or not the duty of care is breached is an objective test – what level of care and skill was required by the activity carried out and has the defendant measured up to that level? It is important to realise that where there is an increased probability of harm from activities carried out by the defendant then there will be an increased burden on the defendant to discharge those activities safely and competently. There will be negligence when the defendant falls below the standard of care required in the circumstances to protect others from the unreasonable risk of harm. Common professional or industry practices and codes of conduct will often be used as a benchmark against which behaviour is tested – but they are not in themselves the final determinant of negligence or a breach of the duty of care. In practical terms, David needed to ensure that he did all the practical and reasonable actions to ensure that Katherine was safe—such as making sure he obeyed the proper lights, signs, and any impending warnings. Those involved—in this case, David and Katherine—must be aware that their actions might result in liability under the civil law, which they definitely will. If a duty of care is owed to the plaintiff and there has been a breach of that duty of care the plaintiff must show that on the balance of probabilities his or her loss was caused by the negligence and not by some other intervening act or natural cause. Of course, being in a car accident is not an intervening act or natural cause—unlike, for example, hurricane or tornado damage. In the event of a breach of the duty of care, the plaintiff—in this case, Katherine—must establish that she can claim damages. To recover damages in respect of injury caused by the defendant’s actions or omissions the plaintiff must establish that the injury was of a foreseeable consequence of that negligence. The loss must not be too remote. The case of “Overseas Tankship (UK) Ltd –v- Morts Dock & Engineering Co Ltd” (2011), a case usually referred to as The Wagon Mound, sets out this general principle (pp. 1). Oil from the defendant’s ship was carelessly spilt onto a wharf. This oil then caught fire and damaged the wharf. The court held that whilst it was foreseeable that the spilt oil might damage the wharf it was not foreseeable that a fire might start so the claim for damage caused by the fire was disallowed. The reason behind this rule is to prevent a defendant being unjustly punished for his or her negligent acts or omissions. There are a number of defences which a plaintiff may raise against a claim of negligence. One established defence is that the plaintiff voluntarily assumed a risk of injury – she knew of the risk and accepted it in his or her free will. Another is that the plaintiff is partially to blame. This is possible on Katherine’s part since she wasn’t wearing a seatbelt. Another possibility is that the plaintiff was involved in some criminal activity at the time. We never know exactly why Katherine plowed into the driver’s side of David’s car, as this information is not given to us. But what was she doing driving late at night, and, additionally, where was she going so much so that she was not watching the road, thus crashing into David’s car? Sometimes car owners (and car insurance companies) often seek to limit liability by way of contract terms or by waivers or notices of exclusion of liability. The “Unfair Contract Terms Act 1977” (2011) restricts a defendant’s reliance on this defence by preventing exclusion by way of contract terms any limitation of liability for negligently causing death or personal injury and limits other exclusions or limitations of liability by making them subject to a test of reasonableness (pgh. 1). According to “Consumer Protection Act 1987” (2011) prohibits reliance on any provision which purports to exclude liability in respect of damage caused by defective products (pgh. 1). Therefore, it should be examined if there were any problems with either of the parties’ cars to ensure that there weren’t mechanical errors involved. A court can also reduce an award for damages if it finds that the plaintiff has some responsibility for the injury and damage that has been suffered—as in Katherine’s case—and the defendant raises the issue of contributory negligence. Contributory negligence could possibly include the fact that Katherine was not wearing her seatbelt. The Law Reform (Contributory Negligence) Act 1945 provides that the courts can now reduce awards: “…to the extent that the court thinks just and equitable having regard to the claimant’s share in responsibility for the damage…” (Farmer and Moore, 2009, pp. 7). Finally, the issue of illegality might be raised by the defendant - where the plaintiff was involved in some illegal activity which was material to the claim being brought against the defendant. However, illegality will not always defeat the claim in negligence. IV. Duty of Care One case decided that, in certain circumstances, individuals or organisations will owe a duty to others. This duty of care was defined in the following way: One must take reasonable care to avoid acts and omissions which one can reasonably foresee would be likely injure his or her neighbour. The word ‘reasonable’ can mean different things in different circumstances. What might be a reasonable precaution or act to make a fellow driver in traffic may not be enough to protect the defendant from being prosecuted in a court of law. So, one owes a duty of care to ‘neighbours’. This duty is to avoid acts and omissions which the event organiser could realistically foresee might cause harm to others. The duty of care does not extend to everyone but it does extend to those who are classified as a ‘neighbour’. The judge in Donoghue –v- Stephenson, Lord Atkin, defined who that neighbour was: “Persons who are…closely and directly affected by my act…” (Crabbe, 2000, pgh. 16). As a bare minimum, Katherine was considered David’s neighbour, and viceversa, as clearly these people were affected by the actions of each other. Therefore, they are duly liable. V. Conclusion The law of tort, negligence, and duty of care have all been explained with regard to David and Katherine’s respective cases. These issues all relate to personal injury law, or torts. Therefore, it has been decided that David was in the right because Katherine had not been wearing her seatbelt—and seeing as how he was driving in a fit of passion. She may be sued in court for this, although it might be difficult to prove. If any of the facts in the case change, this could unfavorably affect the outcome of the case for David’s sake. Hopefully, he will not be held liable completely. 2. Further facts: A witness to the accident gave a statement that David jumped a red light. On the 29th April, he attended Stratford Magistrates Court where he was found guilty of careless driving contrary to section 3 of the Road Traffic Act 1988 and driving without insurance. ??Advise what difference, if any, the above further facts make to the civil litigation case. Following on from possible offences of harassment and the fear of violence under the Protection from Harassment Act 1997, this is interpreted as harassment and is often the start of a potential dispute between two parties. These are the petty actions of two squabbling neighbours or a more deep-rooted industrial dispute between manual workers and white-collar management. The law relating to obstruction of the highway is contained in the Highways Act 1980. Section 137 makes it an offence for any person who without lawful authority or reasonable excuse to wilfully obstruct the free passage of the highway. The highway includes the road, the pavement, grass verges and private property used as a public thoroughfare (i.e. a private unadopted road freely used by the public). ‘Obstruction’ includes anything that prevents passing and re-passing along the highway, and it is also not necessary for the whole of the highway to be blocked for the offence to be committed. The offence is obstructing the highway (and not other highway users), so it is not necessary to prove that anyone was actually obstructed although this sort of evidence would strongly support any prosecution. David might have committed obstruction if he indeed blew a red light as the witness stated. Meanwhile, his previous infractions of the law dealing with reckless driving will definitely not help his case in court. In fact, Katherine might become the plaintiff, and David will be the defendant—seeing as how her injuries were more serious than his were. And, all this, even though Katherine sideswiped David’s car—which is even more unusual. For the offence to be committed the obstruction has to be ‘wilful.’ Dealing with people obstructing a highway, building entrance or road into property can be a very difficult situation to manage. Every citizen has a right to pass and re-pass along a public highway at any time, therefore you can see that blocking drives, roads and factory gates breaches peoples human rights as well as committing a specific offence under the Highways Act. For such an offence, there is no power of arrest for a private citizen, therefore the correct approach must always be one of using good interpersonal communication skills to negotiate a compromised solution. Whenever possible, one should obtain a witness to any of one’s actions and make detailed notes of the incident. Following the death of 21 clubbers in Chicago on the 17th February 2003, America was reeling again after the deaths of at least 95 people on 21st February 2003 in West Warwick, Rhode Island when the band Great White's pyrotechnic display set fire to the venue where they were playing. The 17th February tragedy was caused by security staff letting off pepper spray in a nightclub to break up a fight and this caused members of the audience to panic in trying to escape. The Rhode Island tragedy was described by state Governor Don Carcieri as a real disaster. The building went up so fast no one had a chance. It was estimated that over 300 people were inside the one-story wooden building. 187 people were taken to hospital and over 30 remain critical. The low ceiling 'Station' club had no water sprinkler system as it was too small to require one by law. It also had no pyrotechnics licence although the band claim that they had checked in advance with the venue and permission for their display was given. Reports say that after the pyrotechnics ignited the roof of the venue soundproofing material also ignited and the fire spread in seconds. Govenor Carcieri added that if one wasn't out of that building in 30 seconds one didn't have a prayer. In the earlier Chicago disaster, local fire chiefs pointed out that part of the club was supposedly closed to the public as it had previously failed fire safety checks. After a ten-month investigation into the Rhode Island tragedy on 20 February 2003 at the Station Nightclub when pyrotechnics ignited during a performance by Great White caused an inferno, the Grand Jury has now issued criminal indictments. The fire killed 100 people, including Great White guitarist Ty Longley, and injured about 200 others. In the first indictments, former Great White tour manager Dan Biechele, and club owners Michael and Jeffrey Derderian were each charged with 100 counts of involuntary manslaughter with criminal negligence and 100 counts of involuntary manslaughter in violation of a misdemeanor. They were arraigned in Kent County Superior Court; all three pleaded not guilty. Bail for the Derderians was set at $50,000, and $100,000 for Biechele, who lives in Florida; all were expected to make bail by the end of the day. At the same time it is estimated that over US$1 billion of civil lawsuits have been filed. For a specific event an insurer will indemnify the insured against a set of defined ‘occurrences’ to a pre-agreed financial limit. For small companies a typical policy would provide ?10,000,000 of cover against employer’s liabilities and ?1,000,000 against public and product liability. Organisers of large events will often take out a specific public liability insurance policy, perhaps to an indemnity limit of ?20,000,000 at major stadium to provide indemnity in the event of multiple claims from persons injured or killed at an event. The basic cover for public liability is an indemnity against any claim for bodily injury or illness or disease caused to any person (except an employee) and against loss and damage to a third party’s physical property. A typical policy will also cover a loss arising from trespass, nuisance or interference with any easement of air, light, water or way. The Consumer Protection Act 1987 implements the 1985 EEC Directive on product liability providing a new system of remedies for consumers against manufacturers. The main purpose of the Act is to impose liability for defective products primarily on someone who is regarded as the main ‘producer’ of a product. The Act also provides that the supplier of defective goods may also be liable in certain circumstances as will the retailer of retailer branded products even if the retailer did not manufacture those goods. The definition of ‘goods’ under the Act is fairly wide and includes, in effect, any manufactured goods (by any process) and electricity. The liability under the Consumer Protection Act is for defective products. The test of defectiveness is whether or not the product is as safe as people would be generally entitled to expect. Anyone who suffers injury (or property damage in certain circumstances) caused by a defective product can recover their loss under the provisions of the Act. The Consumer Protection Act 1987 is often used alongside the Sale of Goods Act 1979 which provides remedies for consumers against retailers for goods sold which are not of fit and proper quality. In the case that either David or Katherine’s cars were defective, they might be subject to this act. As can be seen here in this particular case, the negligence generally fell upon the organization which had caused the most damage. In this case, Katherine is definitely suited to bring suit against David, and as such should consider filing a civil suit with David being liable for personal injury towards the plaintiff (Katherine). BIBLIOGRAPHY Brazier M (1993). Street on torts, 1st edition. London: Butterworth Heinnemann. Consumer protection act of 1987. (2011). [Online]. Available: . Crabbe, Justice V.C.R.A.C. (2000). The role of parliamentary council. [Online]. Available: . Donoghue v. Stevenson (2011). [Online]. Available: . Farmer G & Moore O (2009). Employers’ liability. [Online]. Available: . Molan T (2000). Criminal law, 1st edition. London: Old Bailey Press. Mullis A and Oliphant K (1997). Torts, 1st edition. London: Macmillan Press. Overseas tankship (U.K.) ltd. v. Morts dock & engineering co., ltd. (2011). [Online]. . Unfair contract terms act 1977 (2011). [Online]. Available: . Read More