Negligence and Tort Law - Essay Example

? Negligence and tort law of Outline 0 Part I 1 Negligence and tort Law 1.2 Structure of Negligence 1.3 Duty of Care 1.4 Breach of duty 1.5 Legal and Factual Causation 1.6 Harm 1.7 Damages 2.0 Part II 2.1 Case analysis 3.0 Conclusion 4.0 References PART I Negligence and tort law The branch of Tort law covering negligence involves harm that results from a failure to take due care that a prudent person in the same circumstance as the tortfeasor would have.it is part of English Common Law and as such its development is hinged on judicial decisions. It does not cover injury that results from intentional harm. The core idea is that people should take reasonable precautions to prevent foreseeable harm. A cause of action arising from negligence can result in a damages award. This harm can be to persons in terms of physical and mental injury, property, personal relationships and financial status. Where no duty is owed there can be no liability The Structure of Negligence The definition of negligence in ordinary parlance is carelessness. Its strict legal analysis was given by Lord Wright in Lochgelly Iron and Coal Co vs. McMullan (1934): “….negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owed.” Negligence as a tort is that made up of a tripartite element structure: the defendant in being careless must have breached a duty, which results in damage and such damage mustn’t be too remote from the cause, (Feinman 2010, P. 34). To have breached a duty, the defendant must have owed it to the claimant and the defendant himself must have fallen below certain legal standards. The defendant’s actions must be tied to the legal injury suffered by the claimant such injury being worthy of compensation. A judgement will be centred on these three concepts but that doesn’t necessarily mean that they are separate and distinct, they overlap to a great extent. Virtually anyone can be capable of negligence: an occupier of premises, a driver, manufacturers and retailers. The “general conception of relations” that give rise to a duty of care is as, per Lord Atkins, between neighbours. “Persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being affected when I am directing my mind to acts or omissions which are called in question.”-Lord Atkins, Donoghue vs. Stevenson (1932). The duty of care generally extends only to individuals directly harmed and whose interaction with the tortfeasor is reasonably foreseeable, (University of London 2005, P.14). The conceptual structure of negligence tort has been agreed among scholarly circles to encompass five basic elements: the existence of a duty of a care, breach of this duty, factual causation, remoteness and finally legal injury. Duty of Care Until the recent case of Caparo Industries vs. Dickman (1990), duty of care was established by applying Lord Atkin’s Neighbour test from Donoghue vs. Stevenson (1932) which was at the root of the fault principle in Common Law jurisdictions. Lord MacMillan set out a new category of delict not particularly based on negligence per se but on the implied warranty of fitness of product, (Eren 2007, Para. 4). In Caparo vs. Dickman, the formula currently determining the duty of care as used by courts was founded. In the test, three things must be established: whether the consequences of the defendant’s act were reasonably foreseeable, whether there is a relationship of proximity between the parties, physical or legal and whether in all the circumstances it was just fair and reasonable that the law should impose a duty. In the case, economic loss due to negligent misstatement by a company accountants was held remote as there was no proximity between accountants and those who would rely on their reports, (Smith & Burns 1983, P. 147). Caparo was distinguished by the Court of Appeal in Law Society vs. KPMG Peat Warwick and Others, where the court held that auditors owed a duty to the law society because they knew that the solicitors would rely on the auditors’ report when they were deciding whether the solicitors were complying with solicitors’ account rules. In X and Others vs. Bedford shire County Council (1995), where the House of Lords decided that Local Authorities owed children no duty of care in negligence in respect of its statutory obligations because, per Lord Browne-Wilkinson a common law duty of care could not be imposed on a statutory duty where the observance of those two duties conflicted or the common law duty discouraged observance of the statutory one. Thus injury caused by performance of a statutory duty was not actionable, (Tufal 2001, P.2). In Rondel vs. Worsley (1969), the House of Lords held that a barrister owed no duty of care to his client underlying public policy reasons that were against re-opening of the original case in subsequent hearings. Breach of Duty The breach of duty test is a reasonable one: was the defendant expected to meet the standards of a reasonable person. A breach can only occur once a duty is established. Negligence occurs where there is a falling below standard of the ordinary reasonable person. Specific rules apply where the defendant is a learner, child or professional. In Mullins vs. Richards (1998), where two 15 year-old girls were involved in a fight where a splinter broke and caused blindness, the court held that the standard of care of the 15-year-old defendant was that of a reasonable 15-year old. The defendant was not found negligent. In Bolam vs. Friern Barnet Hospital (1957), a case concerning a doctor’s failure to give a mental patient undergoing electro-convulsive therapy relative, the Bolam Test was formulated: “a medical professional is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of men skilled in that particular art….” While in Nettleship vs. Weston (1971) it was held that a learner driver was expected to meet the same standards as a reasonable qualified driver. In cases not following these patterns, courts will take into consideration other factors. These include: the degree of risk involved, the practicability of taking precaution, the seriousness of harm and the social importance of risky activity. Legal and Factual Causation Causation is the third factor of negligence. Although an element of fault it is employed as a defence. Without causation, the negligence argument falls apart. Factual causation is at times distinguished from legal causation to prevent tortfeasor from being exposed to liability in an indeterminate amount for an indeterminate period to an indeterminate class, (Stapleton 1995, Para. 7). The idea behind legal causation is that where danger is unforeseeable, there is no duty of care to avert it. The causal chain can be broken by an intervening event. Thus the claimant must produce evidence which infers a lack of reasonable care on the part of the defendant. However, if no such evidence can be found, the necessary inference may be raised by the maxim res ipsa loquitor. In factual causation the claimant must prove that injury would not have been suffered but for the negligence of the defendant. In Barnett vs. Chelsea & Kensington Hospital (1968) a patient died of arsenic poisoning after being discharged by his doctor. He wasn’t found liable as the doctor’s failure to examine him didn’t cause his death. In multiple factor causation the claimant has to prove that the defendant’s breach caused harm or was a material contribution. In Wilsher vs. Essex AHA (1988), the hospital where the claimant was born prematurely gave him excess oxygen. They also inserted a catheter in his vein twice instead of his artery and he developed an incurable eye condition. The courts held that there was no concept of team negligence and that junior doctors owed the same standard of the head of the team. As regards remoteness the Privy Council in The wagon Mound (1961) decided that a person is responsible only for consequences he could have anticipated. If harm is foreseeable but occurs in an unforeseeable way there may still be liability according to authorities and there still will be liability for a claimant with a susceptibility to a particular illness (Deakins, Angus & Basil, p. 112). Harm Even if duty, breach and causation are present, there is not a cause of action unless actual harm is proved as well. A claimant must prove harm to recover, (Assink 2011, Para. 3). Such harm may be physical, psychological or an injury to one’s reputation. The law draws a distinction between primary and secondary victims. Primary victims are within the immediate vicinity of the danger and do not owe the secondary victims a duty of care. This is especially in cases of psychiatric harm. Damages Once all the salient features of negligence have been proved, the degree of responsibility does not matter. The reasonableness test may also be applied here. Damages follow the restituo in integrum principle which seeks to compensate the victim for losses so as to restore him to his previous position. PART II Case analysis The situation presented concerns two relationships; Employer-employee and employee-client, (Government of Western Australia 2011, Para. 5). As pertains to the first Lucy alleges breaking her back while in the course of her employment lifting a heavy patient, Frank. All the five ingredients of negligence must be proved.The legal question is whether the employer Thereza was negligent towards Lucy. An employee has a duty of care to his present and former employees for their health and safety, (Rowe 2011, Para. 4). Negligence arises from preventing a foreseeable risk. The question then becomes, is back injury foreseeable by Thereza where Lucy was lifting an overweight client. The answer is yes as evidenced by the provision for an extra employee who got sick and had the day off. Was the employer to foresee this too? In Hughes vs. Lord Advocate, it was held, inter alia, that foreseeable harm that occurs in an unforeseeable way could still incur liability. But foreseeability is also subject to the demands of reasonableness. Lucy also claims that the hoist that would have given her aid was broken. The duties of an employer to take reasonable care were laid down in Wilsons &Clyde Coal CO. vs. English (1937) as: providing a safe system of work, competent fellow employees, good plant and equipment as well as safe workplaces. These duties, originally an evolution of common law have been cemented and supplemented by statute. The hoist is broken thus the employer has failed in his duty to provide safe working equipment A point that is not made clear is the timeframe within which Lucy suffered the injury, (Law Commission 2008, P.3). It is necessary to know when because if injury was suffered after her three month working period at Complete Care Ltd then her Thereza owes her none of the common law duties, (Stanton 2006, P. 137). If not, since Lucy suffered injury in the course of her employment the causal chain is not broken and her employer is liable. The second situation which concerns the alleged theft by Lucy of things off a client’s purse is a clear case of vicarious liability, (Dinkha 2009, Para. 4). A strict liability tort is where an employer is held culpable for his employee’s mistakes. Since criminal law disfavours vicarious liability for criminal actions there is no action at law for the employer, (Howarth 2006, P.454). However there was some negligence in the hiring process. Lucy’s vocational requirements weren’t reviewed and the results of her criminal record investigations weren’t even looked over. It is possible for Poppy to sue her employers on this ground. Conclusion Negligence is a fairly recent entrant in tort law that is still experiencing developments. While some might argue that there is no need for a legal imposition of good neighbourliness and looking out for the interests and welfare of others is overstepping for the judicial department, such imposition is necessary to facilitate relations at a legal as well as social level. References Deakin, S.; Angus, J.; Basil, M. (2003). “Markesinis and Deakin's Tort Law”. Oxford University Press. ISBN 0199257116. Tufal, Asif (2001). “The Tort of Negligence”: www.lawteacher.net University of London (2005). “Law of Tort: Negligence: Basic Principles”: University of London External Programme. Eren (2007): “Duty of Care in Torts Law, Liability, Foreseeability of Negligence, Recklessness, Nuisance”: Articles Base. Feinman, Jay (2010). “Law 101. New York”: Oxford University Press. ISBN 978019539513-6. Government of Western Australia Resource Safety (2011). “General Duty of Care_ employees and Employers”: Department of Mines and Petroleum. Howarth, D. (2006) “Many duties of Care- Or a Duty of Care?”: Notes From the Underground, 26(3) OJLS 449-472 Law Commission (2008). “Administrative Redress: Public Bodies and the Citizen”: Consultative Paper No. 187. Smith, JC and Burns, P. (1983). “Donoghue V Stevenson – The Not So Golden Anniversary”: 46 MLR 147 Stanton, K. (2006). “Professional Negligence Duty of Care Methodology in the Twenty-First Century, 22(3) PN 134. Stapleton, J. (1995). “Tort Insurance and Ideology”: 58 MLR 820. Rowe, N. (2011). “Duty of Care Owed to Former Employees”: Maitland Walker, 01643 707777 (Mine head) 01242 285855 (Cheltenham) 020 7788 8927 (London) Assink, B. (2011): “UK: Duty of care to employee of subsidiary”: The Defining Tension, UK. Raniolo, Rose (2011). “Duty of Care”: Minter Ellison Lawyers, Collins Street. Melbourne Vic Dinkha, Olivia (2009). “Duty of Care Owed By Employer to Employee Not Working At Its Premises”: Curwoods Lawyers, Australia. Read More