Tort of Negligence - Essay Example

of the of the Concerned Law November Tort of Negligence Part A It goes without saying that the concept of negligence is central to the English Tort system of liability. To put it in simple words, the notion of negligence in the English Tort Law is primarily based on the commonsensical notion that in all aspects of the social life, be it professional or personal, an individual ought to resort to a minimal standard of ordinary care so as to look to it that one’s activities do not cause any harm to others. Since times immemorial, the very quintessential element that constituted the foundations of law is that each and every person is responsible for one’s wilful acts. In that context, the legal concept of negligence elevates the purview of law to a higher level by enunciating the fact that each and every person is also responsible for the harms and injuries caused to others owing to a lack of ordinary care on one’s part or a lack of skill evinced in the management of one’s property or person. Per say the concept of negligence doe not refer to an act. Actually it is a legal concept that tends to define the basic character of an act so as to prove it to be legally wrong. As per Blyth vs. Birmingham Waterworks Co. (1856), “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” However, once the concept of negligence came within the scope of the English Tort Law, the next logical and plausible challenge was to decide as to what qualifies to be termed as ‘ordinary care” and what was to be the nature and basis of the measure required to decide as to whether an act committed by an individual, organization or a group amounted to negligence. In that context, one needs to mention the much famous concept of ‘the man on the Clapham Omnibus’. This idiom figured in the verdict extended by Lord Justice Greer in the epoch making case Hall vs. Brooklands Auto-Racing Club (1933). The objective of this concept was to establish the legally recognized and valid standards by which to ascertain the charge of negligence levied on a defendant. The ‘man on the Clapham Omnibus’ represented a hypothetical person who is in general reasonable and well educated without being qualified enough to be called a specialist (Twining 64). ‘The man on the Clapham Omnibus’ represented the standard of reasoning with which to gauge a defendant’s conduct in an English Law Civil Action for Negligence. The hallmark of this concept was that it delineated and put in place a standard for ascertaining and establishing the charges of negligence on a defendant. It established a general standard of care expected of any English citizen while performing varied aspects of one’s personal or professional life. The real beauty of this standard is that it tends to be reasonable yet simple in its approach and tends to bring the legal concept of negligence within the grasp and scope of the so called common man. The very fact that this standard of care does not expect perfection on the part of ascertainers obliterates any possibility on the part of the defendants to wriggle out of the clutches of law by resorting to technical jargon and rigmarole. It is also immensely humane and pragmatic in the sense that it do recognizes the fact that an average person lacks the foresight to foresee any risk accruing by the dint of one’s actions. Still, it is astutely responsible and practical in the sense that it enjoins on the average person the duty to be ordinarily prudent and careful, without tending to be unexceptionally or unrealistically flawless. There is no denying the fact that even the most virtuoso experts in jurisprudence do tend to overlook and appreciate the sophistication and beauty inherent in the concept of ‘the man on the Clapham Omnibus’. However, the reality is that this legal idiom not only validated the concept of negligence in the English Tort Law, but also attempted to quantify and contain it in as realistic and rational a manner as possible. As per the English Tort Law, the essential elements of Negligence are: A Duty of Care- Donahue vs. Stevenson (1932) laid a three step test for the establishment of a duty of care on the part of a defendant, as per which the defendant must have been able to reasonably foresee the harm committed to the complaint, the complaint and defendant must have been in a relationship of proximity and the placing of the liability of responsibility on the defendant being just, fair and reasonable. Breach of the Duty of Care- Once it has been established that the defendant owned a duty of care to the complaint, it is also established that, that duty has been breached. Breach Caused Harm- There is reason to reasonably believe that the breach of duty on the part of a defendant caused harm to the complainant. Remoteness- The harm caused by the breach of duty was not too remote a consequence of that breach. However, the law was soon to recognize the fact that the standards of care established by ‘the man on the Clapham Omnibus’ with the accompanying elements as discussed above may not hold under all circumstances and in all cases like skilled professionals, inexperienced defendants and juvenile defendants. The application of the standards of ‘the man on the Clapham Omnibus’ could lead to an unwarranted unfairness in such cases. In the case of some defendants this standard may be too demanding to extend to the defendant any chance of a fair trial. In other cases this standard may be so low that its application may exonerate a defendant of a wrongdoing that is too obvious and discernable. To a great extent in the English Tort Law, the instances of professional negligence come within the scope of the concept of general negligence. Any charge of negligence needs to establish the basic elements of negligence in the English Tort Law, like the defendant owned a duty of care to the defendant, the acts committed by the defendant led to a breach of that duty of care. However, the regular test of a breach of duty looks into whether the defendant matched the abilities of ‘the man on the Clapham Omnibus’ was committing an act. Yet, in case of the skilled professionals, they tend to have the skill levels that are beyond the capacity of ‘the man on the Clapham Omnibus’. So, this standard could not be applied to professional persons. Hence in the case of the professional persons, the ascription of the charge of negligence is gauged as per the rules set by the Bolam vs. Friern Management Committee (1957). As per the Bolam Test, if a defendant establishes oneself as having above average skills and capabilities, then the test accepts those standards that are in concurrence with a responsible body of opinion, even if other people tend to differ with that opinion (Cane 245). The primary crux of this standard is to ascertain as to whether a professional person blamed of negligence fell below a necessary and required standard of care. The standard of care expected of a professional person as per the Bolam Test is that of an ordinary skilled professional in that discipline, who professes to have the skills pertinent to the practice of that discipline. The professional need not have the highest levels of skills possible in one’s profession. The course of action pursued by the professional person while performing an action regarding which the charges of negligence are levied is in accordance with the practices considered to be proper by a responsible body of opinion, at the time when the action was committed. It is irrespective of the fact that some other responsible body of opinion may support a different course of action or technique. However, the problem with the Bolman Test was that it set aside the obvious corroborated by reason and commonsense to the verdict of a body of skilled professionals. There definitely existed a scope for evolution in the Bolam Test. There arose varied anomalies owing to the interactions between constraints of causation and the Bolam Test. The standards set by Bolitho vs. City and Hackney Health Authority (1997), were not only an evolutionary departure from the standards set by the Bolam Test, but rather redefined those standards. As per the Bolitho Case, in case the existence of varied bodies of expert opinions in a case of negligence against a professional person, the judge was to choose an expert opinion that was logically valid and defensible. The Bolitho Case rebalanced the requirements of justice by making the law have a predominant say in the decision making in cases of professional negligence, rather that the bodies of professional opinion makers. The Tort of Professional Negligence is as much applicable to Medical Practitioners as to the professionals engaged in the property business. There exist ample cases where the professionals engaged in property were brought to justice by the Tort of Negligence. For instance, McWilliams vs. Arrol (1962), the complaint charged a building firm of negligence by failing to provide a safety belt to a steel erector, which led to the death of her husband. However, the court ruled out any breach of negligence on the part of the builders. In another case, Allied Maples Group vs. Simmons & Simmons (1995), the complainant charged a property consultancy firm for professional negligence, by extending to him professional advice that led to the accrual of liabilities on his part. In case of the cases of professional negligence, the complainants do have access to some remedies. Monetary compensation stands to be a primary remedy in the tortuous loss pertaining to negligence. In case of torts of negligence leading to a nuisance or inconvenience to a complainant, the court may impose appropriate injunctions, legally requiring the tortfeasor to abstain from the activity causing the nuisance. The legal concept of negligence is indeed a salient evolution in the English Tort Law. Not to mention, the actual applications of the elements of laws pertaining to negligence is amply complex and requires much sophistication on the part of legal professionals. There is no denying the fact that their does exist ample scope for evolution in the English legal concept of negligence. Part B The commonsensical observations corroborate to the fact that contracts constitute an essential aspect of the day to day life. Whether one chooses to buy a newspaper from a vendor, or procures insurance for one’s family or even the act of accepting a job offer, contracts tend to arise in the due course of the daily normal life. Superficially speaking, the situations mentioned here may appear to ascribe to a different area of the English law, yet the fact is that all these propositions rest on an underlying body of law popularly known as the ‘general law of contract’. In the cases pertaining to the contract law, it is seldom that one could ascribe all the details to the English Contract Law. However, to speak it realistically, the basic rules of the contract law do tend to have a predominant place in most of the agreements involving commercial transactions or exchange of value. Simply speaking, in a legal context, a contract attributes to a promise or a set of promises, the fulfilment of which may be considered by the law to be a duty and the breach of which is open to the commensurate liabilities in a court of law (Markesinis & Deakin 17). As per the English Law, any contract for the provision of a service has three intrinsic elements. Every contract has an element of promise associated with it (Beatson & Friedmann 27). However, the English Law does not give legal credence to a mere promise unless it is backed by an agreement. There exists a way of a difference between promises sans an agreement and the promises that come with an agreement. The essential difference is that the promises that do not come with an agreement do not give way to a tagged legal duty. For instance promising one’s children to take them for a movie on the weekend does not lead to a legal compulsion or obligation. However, promising a person to rent one’s property for a monthly charge of 300 pounds does lead to a legal duty or a contract for the provision of a service. The contracts for the provision of a service may be bilateral or unilateral in their ramifications (Beatson & Friedmann 138). For instance, entering into an agreement by a taxi driver with a person to drop and pick up one’s son to school for a fee is a bilateral contract for the provision of a service. It places the onus on a taxi driver to promptly drop and pick up the child to school for the specified period. It also enjoins a legal duty on the other person to pay the agreed upon fee to the driver at the right time. In contrast, a unilateral contract accrues responsibilities and legal duties on one party only. The promises by a soap manufacturer to the customers to offer a discount of 10 percent on the total price if they buy more than five soaps manufactured by one’s company are a unilateral contract. It enjoins the legal duty of the manufacturer to honour a 10 percent discount in case a customer buys more than 5 soaps manufactured by one’s company. However, it in no way binds the customers with any legal duty to buy the soaps manufactured by that particular company, or to buy more than 5 soaps from that company. They may choose to do as they wish. The third hallmark and the requisite essential of a contract for the provision of a service is that it is open to legal remedies (Markesinis & Deakin 17). In case a deal for the provision of services is not open to legal remedies, it is not a contract. A contract is considered to be void if it is worthless or not enforceable by law (Ibbetson 227). For instance the contracts made by two minors are considered to be automatically void. For example if a 5 year old promises to give one’s rabbit to one’s 6 year old friend in exchange for his stamp collection, this is an automatically void contract as it cannot be enforced by law. Also, an agreement between the two parties to agree to carry out an illegal act is also void. Say for instance, a contract between a drug-dealer to supply drugs to a drug addict for a weekly payment is a void contract or void agreement. In this contract neither of the two parties that is neither the drug-dealer nor the drug addict can go to a court of law to get that contract enforced or to seek remedies in case the contract is breached by any one of them. Very unlike a void contract, a voidable contract is a valid legal contract. As per the English law, any contact or agreement that is voidable may not be honoured by one of the two parties which agreed to enter that contract (Ibbetson 248). Hence, though a void contract is void ab initio that is right to begin with, a voidable contract can be dishonoured by any one of the parties. In a voidable contract, at the most only one party is bound. The other unbound party could choose to dishonour the contract. For instance, in some instances in the English Law, a minor has the right to repudiate a contract. Hence, any person or organization entering into a contract with a minor is entering into a voidable contract. Hence if an organization or a person enters into a contract to for the provision of a service to a minor, the minor may choose to repudiate the contract while the other party will be legally bound to honour the contract to the minor. Hence, it is not without a reason that entering into legal contracts for the provision of services to the minors does often require adult consent. ` Any agreement for the provision of a service that is enforceable by a court of law is a contract. In case of contracts involving higher transactions for the provision of certain services like in the case of soliciting the services of a Real Estate dealer, the English law resorts to certain formalities like fixing signatures on the agreements. Works Cited Allied Maple Group v Simmons and Simmons [1995] CA. Beatson, Jack E & Friedmann, Daniel E. Good Faith and Fault in Contract Law. Oxford : Clarendon, 1997. Blyth v Birmingham Waterworks [1856] 11 Exch 781. Bolitho v City and Hackney Health Authority [1997] AII ER 771. Bolman v Friern Hospital Management Committee [1957] 1 WLR 582. Cane, Peter. Tort Law and Economic Interests. Oxford: Clarendon Press, 1996. Donahue v Stevenson [1932] UKHL 100. Hall v Brooklands Auto-Racing Club [1933] 1KB 205. Ibbetson, DJ. A Historical Introduction to the Law of Obligations. Oxford: Oxford University Press, 1999. Markesinis, BS & Deakin, SF. Tort Law. Oxford: Clarendon Press, 1999. McWilliams v Argot [1962] HL. Twining, William. Law in Context. Oxford: Clarendon Press, 1997. Read More