Voluntarily Assuming Liability under the Law of Contract - Case Study Example

?Law of Obligations Part A Any claims that Alan may have against John or the local council must be assessed by reference to the common law duty of care or the statutory duty of care under the Occupiers’ Liability Act 1984. Even if a duty of care is found to have existed in any claims that Allen may have, the question of contributory negligence arises with respect to Alan’s own behaviour throughout the night in question and how he may have contributed to his own accident and subsequent injuries. John The classic test for the imposition of a duty of care was articulated in Caparo Industries v Dickman.1 Accordingly, a duty of care will exist only where there is foreseeability, proximity and if the imposition of a duty of care is fair and reasonable in the circumstances.2 Norris argues that in applying the test articulated in Caparo, it is necessary to determine whether or not a duty of care was assumed by the defendant and whether or not it was reasonable for the plaintiff to rely on the defendant’s assumption.3 It is important to note however, that the assumption of responsibility and reliance on the duty are not conclusive evidence of the existence of a duty of care, but may be “one of the ways in which the necessary degree of proximity may arise.”4 On the facts of the case for discussion, Alan asked John to take his keys from him if he drank too much that night at John’s house. The two proceed to drink two bottles of wine followed by brandy coffee. It was stated how the wines were proportioned out between them and whether or not Alan drank too much throughout the evening. Regardless, Alan indicated that he felt able to drive and nothing was made of it. In any event, it does not appear that the consumption of alcohol had anything to do with the accident. The fallen tree was the cause of the accident and the main question is whether or not, John’s call to Allan caused him to collide with the fallen tree and whether or not John assumed responsibility for preventing personal injury to John when he placed that telephone call. The House of Lords has emphatically held that individuals are responsible for the outcomes of their own actions and that imposing a duty on others to prevent individuals taking risks is too onerous a duty. Moreover, the House of Lords stated that certainly: There is some risk of accidents arising out of the joie de vivre of the young, but that is no reason for imposing a grey and dull safety regime on everyone.5 Likewise it was held in Ratcliff v G. R. McConnell and E.W. Jones that when individuals choose to engage in risky behaviour and the risk results in personal injury they may not “blame others for their rashness.”6 It therefore follows that Alan freely decided to engage in risky behaviour by driving after consuming alcohol and the risk was further exacerbated by his decision to answer his cell phone while navigating a sharp bend in the road. It was this distraction that caused him to drive into the fallen tree. Essentially, if Alan is aware of the dangers of driving under the influence and/or talking on the telephone while driving or worse, talking on the telephone while navigating a sharp bend at night, he is naturally assumed to have assumed the risks involved.7 The only risks involved, arises out of what Alan chose to do, and because of the fallen tree or John’s telephone call to him or John’s failure to keep his keys after Alan may have had too much to drink.8 In any event, it has been held that voluntarily assuming liability is a matter best left to the law of contract.9 It therefore follows that Alan cannot pursue a claim against John on the basis that John assumed responsibility for preventing personal injury to Alan by agreeing to hide his keys from him if he drank too much that night. Nor can Alan pursue a claim against John on the basis that John assumed responsibility for preventing personal injury to Alan because he knew of the fallen tree and directed Alan to take the route where the fallen tree was in order to avoid being pulled over by police. Even so, John had done all that he could reasonably be expected to do to prevent harm to Alan or any other motorists by reporting the fallen tree to the proper authorities.10 The Local Authorities An occupier is defined as an individual or an official agent or body exercising control of premises at issue.11 Since John telephoned the local authorities to report the fallen tree it is assumed that the local authorities have control of the route where the fallen tree was discovered. Thus for the purpose of this part of the paper, the local authorities are the occupiers that Alan may seek to claim compensation for the personal injuries he sustained as a result of colliding with the fallen tree. It is not necessary for the local authorities to have been present in order for liability to be substantiated in the case of a lawful visitor.12 However, Section 1(7) of the Occupiers’ Liability Act 1984 states that the 1984 Act does not apply to persons who use highways.13 It would therefore appear that any claims arising out of the use of a public right of way properly belongs to the common law principles of a duty of care. Moreover, the rule in Gautret v Egerton states that the occupier of premises does not owe a duty of care to members of the public in terms of nonfeasance of the upkeep of the premises.14 It was also held in McGeown v Northern Ireland Housing Executive [1994] 3 WLR 187 that the rule in Gautret was entirely necessary because otherwise, occupiers would have an onerous duty keeping the public access paths in relatively good repair. In addition, when a person exercises a right of way, he/she is not doing so on the basis of permission, but by virtue of the exercise of a right and as such, he/she is not a visitor pursuant to the Occupiers Liability Act 1957. 15 Additionally, in Stovin v Wise the plaintiff was on a motorcycle when he collided with another motorist at a junction that was known to be dangerous for motorists. A bank on adjoining property in particular impaired visibility. The House of Lords ruled that that local authority as a highway authority did not owe a duty to the public or in negligence to take steps to have the bank removed. Lord Hoffman went so far as to state that: ...the trend of authorities has been to discourage the assumption that anyone who suffers loss is prima facie entitled to compensation from a person (preferably insured or a public authority) whose act or omission can be said to have caused it. The default position is that he is not.16 Thus the trend in regards to law suits against public or local authorities is not in favour of those seeking compensation. However, it is possible in certain circumstances for compensatory damages to be awarded where there is reliance in either a general or specific way. In this regard a positive duty to take preventative action may exist. However, the law is not altogether clear in this respect.17 Essentially, the duty of local/public authorities does not arise out of statue, but instead arises out of “proximity and reliance, subject to policy considerations.”18 Even so, “pure omission” to act on the part of a local or public authority in terms of road safety would not give rise to a duty of care.19 The weight of the authorities therefore goes against Alan’s chances of success in pursuing a claim against the local authorities for failure to remove the fallen tree. Moreover, even if Alan is able to successfully make a claim, any damages he might receive for the personal injuries (the loss of his car and facial injuries) would be reduced on the grounds of contributory negligence since he was driving under the influence, took a telephone call at the most inopportune time and failed to wear a seat belt.20 As for any claim arising out of Alan being shaken, there is generally no recovery for distress unless Alan can prove that the local authority intended to cause him distress.21 In other words, “impute intention” will not suffice.22 Based on the authorities cited, Alan will have a very difficult time substantiating a claim against the local authorities in tort. Essentially, failure to remove the tree will not generally give rise to a breach of a statutory duty as the duty of local or public authorities does not extend to omissions. Part B There has been an overwhelming increase in the number of circumstances in which the judiciary are prepared to find an individual responsible in tort for the harm incurred by another.23 It can therefore be assumed that Deakin et. al. are correct in their observation that it is “no longer politically acceptable” to permit an impecunious or uninsured victim of a tort to go without compensation.24 The fact is, with the expansion of liability, tort law is not concerned with the ability of the tortfeasor to pay compensatory damages. As Cane and Atiyah notes: In tort law, the tortfeasor’s wealth or financial means are usually irrelevant to liability. The fact that a tortfeasor is rich is no ground for imposing liability, and the fact that they are poor is no ground for not imposing liability.25 Cane and Atiyah argue that while the equality principle in terms of the imposition of liability is “morally right”, it might be worthwhile to consider, whether or not it is realistic to “ignore” the tortfeasor’s “financial position”.26 For example, a parent of a child who broke a neighbour’s window may “feel morally obliged to pay” that neighbour a “few pounds” in compensation.27 However, if the child causes significantly more damages, the parent may not feel morally obliged to go into bankruptcy to compensate the neighbour.28 In criminal law, the court will not typically assess a fine without first determining the defendant’s means. Tort law’s fixation on liability regardless of means is justified on the grounds that the aim of the law of tort, unlike criminal law is to compensate victims rather than to punish the offender. However, as Cane and Atiyah notes: The ‘purpose’ of the law is irrelevant to the tortfeasor who is made to pay the damages – what matters to them is the effect of the law, not its ‘purpose’. So far as the wrongdoer is concerned, deprivation of money by the court is precisely as painful whether the ‘purpose’ is to punish the wrongdoer or to compensate the victim.29 Cane and Atiyah go further to argue that it is entirely unfair to impose compensatory damages on a party who has to divest himself of all of his possessions to pay a victim.30 However, there must be some concern for the victim who is put to medical expenses, physical damages, economic loss, loss of earnings and loss of future income and thus has nothing left as a result of the tortfeasor’s negligence. In balancing the cost to the victim and the tortfeasor, it is only fair that the law of tort takes the side of the victim. Cane points out that it is generally argued that the idea of compensation to the victim could result in an impecunious tortfeasor having to pay significantly large sums of money to a wealthy victim. 31 However, Cane goes on to state that in practice this is not likely to occur because: it is not worthwhile making a tort claim against a tortfeasor who is not either insured against liability or wealthy enough to pay any damages awarded.32 Cane argues that should the compensatory culture in the law of tort be modified to reflect means as opposed to culpability, it would significantly change the “anatomy of tort”.33 In this regard, it must be noted that the law of tort functions as a regulator of social conduct. It instructs individuals to be mindful of their conduct and the consequences of their conduct when interacting with others.34 As stated in McBride [2008] CLJ 462, the law of tort “exist to vindicate people’s right”.35 However, this may be an oversimplification of the purpose and functions of the law of tort. Lord Carswell’s observation is more instructive. Lord Carswell stated that: The function of the civil law...is to provide a framework for compensation for wrongs which holds the balance fairly between the conflicting rights and interests of different people.36 Lord Scott also stated that “although the principle aim of an award of compensatory damages” is to ensure that the victim is compensated for his or her loss, “there is no reason in principle why an award of compensatory damages should not also fulfil a vindicatory purpose.” 37 In other words, the main function of the law of tort is to identify and protect individual rights. In identifying and protecting individual rights the law of tort looks at behaviour and the risks that behaviour has with respect to the health and safety of others. Thus unacceptably risky behaviour would incur liability regardless of whether the wrongdoer is in a position to satisfy and award of compensatory damages. In Uren v Corporate Leisure the Court of Appeal took the position that organizers of a game that was intrinsically risky had a duty to assess the risk involved before permitting others to participate in that game.38 It can be assumed that had the organizers of the game conducted an adequate risk assessment, the participants would have not participated in the game if they were aware of the risks involved. Or if they participated in the game once they were made aware of the risks, the participants would have been deemed to have assumed responsibility for the risks. Thus the law of torts will not impose liability on an individual who takes precautions against the risk of harm to others. These precautions will include adequate warnings of dangers. In such a case, the defendant is performing an ethical and moral duty. The law of tort therefore acts as an agent of society. It provides a compensatory culture that encourages individuals to avoid taking unacceptable risks that can cause harm to others. It therefore follows that, mindful of the possibility of causing harm and having to pay compensatory damages, individuals will take care not to engage in activities that might cause harm to others. It can be argue however, that in no-fault liability insurance cases, the compensatory culture of the law of tort is of no material consequence. An insured individual who does not have to do more than make a claim against his or her insurance policy will not particularly concern themselves with the consequences of risk-taking behaviour. Although the wrongdoer may face the possibility of having to pay a higher premium may act as a buffer, the possibility of having to pay a higher insurance premium pales in comparison to having to pay full compensatory damages. Third party liability is one method by which the courts have ensured that a victim is compensated for harm when the wrongdoer is impecunious. For example in Van Colle v Chief Constable of the Hertfordshire Police; Smith v Chief Constable of Sussex Police it was held that the police had a duty to protect an individual from the criminal activities of another if they were aware that a specific individual was in danger of being killed by a criminal.39 Previously the court had ruled that the police did not owe such a duty because, to hold the police to such an onerous duty, police would divert resources toward defending themselves in court as opposed to investigating crimes.40 However, the UK’s courts are bound by the decisions of the European Court of Human rights in which Article 2 of the European Convention on Human Rights places a positive duty on the state to ensure that the law protects the life of its citizens.41 Thus the law of tort is aligned to human rights and thus emphasises that its purpose is not so much about ensuring compensatory damages, but with organizing and enforcing a code of conduct that minimizes the risk of harm to individuals. The judgment of the European Court of Human Rights is therefore instructive. The court ruled: ...the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.42 First, the ruling of the European Court of Human Rights extends liability to such an extent that risk must be assessed and responded to. Secondly, the ruling ensures that when a victim is killed and the killer cannot compensate the victim’s family, a third party who can compensate the victim will pay if that third party could have prevented the victim’s death. In the final analysis, the law of tort may be perceived as opening up a floodgate in terms of extending liability and awarding compensation. However, the extension of liability and the culture of full compensatory damages are designed to ensure that those who are victims of negligent behaviour are able to be compensated for the losses that they incur. Liability is proportioned to anyone who could have prevented the risk of harm in the first place, by either reducing the risk or avoiding the risk altogether. In this regard, third parties may be held accountable even when they are not an agent or a principle in the commission of a tort. Bibliography Bishara v Sheffield Teaching Hospitals [2007] EWCA Civ 353. Blythe v Birmingham Waterworks [1856] 781. Cane, P. and Atiyah, P. S. (2006). Atiyah’s Accidents, Compensation and the Law. Cambridge, UK: Cambridge University Press. Cane, P. (1997). The Anatomy of Tort Law. Oxford, UK: Hart Publishing. Caparo Industris v Dickman [1990] AC 465. Deakin, S.; Johnston, A. and Markesinis, B. (2008). Tort Law. 6th Edition, Oxford, UK: Clarendon Press. Gautret v Egerton [1867] LR 2 CP 371. Gorringe v Calderdale [2004] 1 WLR 1057. Harpwood, V. (2009). Modern Tort Law. 7th Edition. Oxon, UK: Routledge-Cavendish. Harris v Birkenhead Corpn [1976] 1 All ER 1001. Hill v Chief Constable of West Yorkshire [1989] AC 53. Jennings v Forestry Commission [2008] EWCA Civ 581. Law Reform (Contributory Negligence) Act 1945. Logie, J. G. (1989). “Affirmative Action in the Law of Tort: The Case of the Duty to Warn.” Cambridge Law Journal Vol. 48: 115-134. Martin, R. (Jan. 1997). “Diverging Common Law: Invercargill Goes to the Privy Council.” The Modern Law Review, Vol. 60(1): 94-101. McBride [2008] CLJ 462. McGeown v Northern Ireland Housing Executive [1994] 3 WLR 187. Norris, W. (2009). “The Duty of Care to Prevent Personal Injury.” JPI Law, 114. Occupiers Liability Act 1984. Osman v UK [1998] 29 EHRR 245. Ratcliff v G. R. McConnell and E.W. Jones [1999] 1 WLR 670. Revill v Newbury [1966] 1 All ER 291. Spencer, J. R. (2009). “Suing the Police for Negligence: Orthodoxy Restored.” The Cambridge Law Journal, Vol. 68: 25-27. Steele, J. (2007). Tort Law: Text, Cases, and Materials. Oxford, UK: Oxford University Press. Stovin v Wise [1996) AC 923. Tomlinson v Congleton Borough Council [2003] UKHL 47. Uren v Corporate Leisure [2011] EWCA Civ 66. Van Colle v Chief Constable of the Hertfordshire Police; Smith v Chief Constable of Sussex Police [2008] UKHL 50. Wainwright v Home Office [2004] 2 AC 406. Read More