Law of Tort and Duty of Care - Essay Example

? Law of Tort Negligence Negligence entails the omission of an act resulting in an injury. The Oxford law dictionary defines negligence as carelessness amounting to the culpable breach of duty. Failure to do something that a reasonable man would do amounts to negligence. For negligence, there must be a loss by the plaintiff and a negligent act by the defendant1. Carroll, v Fearon D2, negligently manufactured a tire that led to a fatal accident on a motorway owing to its disintegration. This case did not attribute any specific negligent act to the manufacturer. Therefore, the judge held that either there was no requirement to specify the particular persons responsible for the defects, or the particular negligent act or omission. The disintegration of the tire accrued owing to the fault committed during the manufacturing process. In this case, the manufacturer was in confusion to explain how the fault connected to negligence. The duty of the judge is to identify negligent act3. Negligence is the act of an individual to exercise due care. An act is negligent if the wrongdoer knew foresaw the outcome of the act one is negligent if the action done ought to take all reasonable foreseeable measures to ensure that the other party by his omissions or deeds is not injured by his omissions or deeds. In Heaven v Pender the defendant was negligent by not ensuring that the ropes in good condition before using them to hold the dock. In order for an action of negligence to suffice, the injured party claiming damages must show; (a) The existence of a duty of care owed by the defendant (b) The defendant breached the duty of care owed (c) Plaintiff suffered harm because of defendants’ actions (c) An injury suffered resulted from the defendant’s breach Duty of care Duty of care means the conditions, which give rise to an obligation to take care. Duty of care is the obligation to ensure that damage is not caused by observing due care4. Duty of care exists where a person reasonably might suffer an injury, damage, or loss because of another person’s actions and the other person owes the first duty of care. There are two forms of duty of care, duty recognized by law and duty brought about by the circumstances. Where law has not provided for the duty of care, the test of the foreseeable plaintiff applies; the duty is not owed to the world at large, but just to a person within the extent of the harm created, that has been for the foreseeable victim5. The duty of care serves two purposes the first is to provide a framework for various situations in which liability may arise. It assists in showing where an individual is liable to another or owes the other a duty. The other purpose is to limit claims related to the negligence of a party; it sets the boundaries from which a party could claim due to negligence. One is supposed to observe standard care in order to ensure that they do not breach the duty of care. The only way a plaintiff can succeed in any action is by establishing a duty of care. Actions cannot withhold where no duty is established. In Gates v Mckema D6, a stage hypnotist caused psychiatric damage to a volunteer from the audience. Held the level of precaution expected should be that of a reasonably careful exponent of stage hypnotism-factor to consider-standard of care skill required. Standard care in this case is the care an individual is supposed to observe in order to ensure others are not injured or suffers losses. In Marshall v Osmond7, D while in pursuit of an escaping criminal, slammed on to the car crashing it. The presiding judge interpreted that the duty of care by the police officer was the same as that owed by any other. The duty to exhibit such care and skill was reasonable since the accident was unavoidable. He also ruled that, driving alongside another car in the police attempt to make an arrest was erroneous. This is because his judgment in the case did not amount to negligence. The factors that affect the duty of care are the balance of the involved dangers and the value of the activity. When deciding on the fair ruling, the judges will look at some aspects of action such as the probability of the harm occurrence, and its severity of harm and the importance of the activity constituting the injury. If there is a high chance that the result of an action would be a great injury then the doer ought to avoid the action or reduce the severity of harm and if the anticipated injury is minimal there would be little done in order to achieve the standard of care8. In this case, the action for negligence failed because the duty of care was nonexistent. The standard duty of care implies what a reasonable man would have done to avert the occurrence of possible incidents. It is important to note that, this does not imply a higher standard of care. It is what an ordinary man would prudently have done in order to avoid the harm. For a standard duty of care there must exist proximity and the aspect of foresight. Breach of duty If proven that there existed a duty of care, subsequently it is important to show a breach in the duty. A breach in duty occurs when the wrongdoer on purpose has subjected another to harm or injury. In most cases, a defendant may practice negligence without any idea of the harm that is likely to affect another person. The wrong doer ought to notice that, the same amounts to a breach of duty. In Masfield v Weetabix were the owners of a lorry, the driver suffered due to a mental breakdown that accrued because of glucose deficiency in the brain. He was unaware of the effects that could influence his driving. Due to his negligence, C destroyed their shop when the lorry left the road on a bend. Held, the standard of care exhibited by the driver deemed appropriate. It is imperative that, the driver did not know of his illness that led to the accident therefore, he was not at fault. This is because his actions did not fall below the standard of the case required and therefore there was no breach in the duty of care9. Negligence does not imply carelessness since one may have done something diligently but still breaches a duty of care. This implies that for any action in negligence there must be a breach of duty. In the breach, a person may either fail to take appropriate action in order to prevent an action from occurring, which is because of neglect or the person, may not take any action at all, which is omitted. In Blake v Galloway10, the judge held that only recklessness or extreme carelessness are deemed significant to the breach of duty of care . It is important to realize that, there exists a close analogy between organized sport and horseplay. The absence of common rules in the horseplay is not sufficient distinction. This is because both are consensual and involve physical contact. Decisions making is quickly, or instinctively. The plaintiff had consented to the risk and consequently the was no duty owed and the action failed. In the determination of breach of duty, the courts apply the rule of the reasonable person. Lord Macmillan in Glasgow Corporation v Muir11, pointed out two aspects of the test of breach of duty (a)The foresight of a reasonable man warrants impersonal test in that, it alleviates the personal equation and does not lay any attributes to the idiosyncrasies of the person with unbecoming conduct. This is an objective test to a reasonable person with some general knowledge and understanding. (b) ‘It is upon the judge to provide a reasonable decision by considering all the Circumstances of the case in question. In this case, there is room for diverse opinions. It is important to note that, the judges may view the case in different perspective. Neighbor principle The neighbor principle has its roots in the case of Donoghue v Stevenson12. In this case, Donoghue took a friend to a cafe. While in the cafe, the friend bought ginger beer encased in an opaque bottle. Mrs. Donoghue drank from the bottle before pouring into to her glass. Upon pouring, she realized that, there were some remains of a decomposing snail inside the beer. This led to her suffering from persistent gastroenteritis. Lord Atkin stated the rule that encouraged people to love their neighbors; this prevents people from injuring their neighbors. The context of neighborhood in this case is relative. It is important to note that, this law strives to foster the tort of negligence. It stipulates that, one must take reasonable care to alleviate awkward situations that occur due to omission. In order for an individual to owe another duty of care, it is important for the tortfeasor to fall within the neighbor bracket. It is easy for people to foresee acts that can be detrimental to their neighbors thus avoid them. The law recognizes neighbors as close persons to the individuals in question. Anns test Lord Wilberforce in Anns v Merton London Borough Council13, stated that the question is to be approached in two stages. The first one is to determine whether there is any tenable proximity between the wrongdoer, and the individual claiming damage. It is important to realize that, the neighborhood may lead to the rise of prima facie care. Secondly, it is important for one to contemplate critically on whether any considerations that may be perverse exist causing a reduction of scope of duty. The three-stage test The test used to determine whether a duty exists originates from the case of Caparo v Dickman. This case established the guidelines that the courts apply in the determination of the duty of care. In order to do so, three things must be evident. First, the loss to the claimant should be foreseeable, secondly sufficient proximity between the parties ascertained, and lastly, one should assess whether it is in order to impose the duty of care. (a) Reasonable foresee ability. Foresee ability means if a reasonable person would have ordinarily foreseen damage in the circumstances. The neighbor principle in Donoghue v Stevenson relies14 on the plaintiff showing that it was foreseeable that if the defendant acted negligently he would harm the plaintiff. The test is objective and the court inquires if a reasonable person in the defendant’s situation would reasonably have foreseen that the plaintiff might be injured. If a reasonable person would not have foreseen harm or damage to an individual in the plaintiff’s position, no duty of care is owed to the plaintiff. The court used the test of foresee ability to establish whether a duty of care existed for the course of action to succeed. The lack of foresee ability made the action to fail. This is also the position in Smith and Others v Littlewoods Organization Ltd15. Littlewoods bought some cinema, but had to shut down with an intention of demolishing to set up a supermarket. While it was derelict, some children decide to break into it whilst setting up fire, which damaged neighboring buildings. Established that, Littlewoods had discovered that his building was insecure because there had been two reported cases of fire previously. The House of Lords held that, without due attention to these facts, it was impossible for Littlewoods to foresee the damage that occurred. In this regard, the two judges asserted that, Littlewoods would have prevented the damage of the building if he were aware of the additional facts. Therefore, he would be liable for damage owing to his failure to adhere to the duty of care. Proximity Proximity in law implies the legal proximity in terms of the relationship and closeness of the aggrieved parties with respect to duty of care. In Smith and Others v Littlewoods Organization Ltd16, foresee ability was sufficient but in some situations the harm is foreseeable but it would be unjust to make the defendant liable. In such situations, a second criterion is applied and this is the degree of proximity between plaintiff and defendant. Proximity means any form of relationship between the parties. The court in its determination on whether there exists a duty of care will ask if the claimant was among the group to which a duty of care was owed. In Caparo Industries PLC v Dickman17, the defendants made a mistake in the preparation of a set of accounts. The plaintiffs, who were shareholders in the company, bought some additional shares based on the strength of the accounts, and suffered a loss because of the same. The House of Lords held that the defendants were not liable for their duty was to the shareholders and the directors of the company. They also established that the potential investors were not liable. It is worth noting that, since the claimants were the investors and the shareholders of the company, the lack of proximity between the investors and the auditors would tempt them to extort the information in the manner they did. They would therefore not be liable for the aspect was foreseeable. Although the case passed the foresee ability test, it failed in the proximity test and therefore no duty was owed. In Topp v London Bus Ltd18, the defendant left one of its buses unattended and unlocked, with the keys in the ignition. Consequently, the “joy-rider” tortured and killed the claimant’s wife before stealing the bus. In the process of hearing the case in court, two judges in the court of appeal differed with one of their colleagues. They argued that there existed no sufficient with respect to proximity between the victim of liability and the defendant. Reasonable foresee ability and proximity both made the basis of the decision in Home Office v Dorset Yacht Co19. The boys escaped from a Borstal on an island owing to their supervisor's negligence who left them unsupervised. In their quest to depart the island, the boys broke a yacht that belonged to the Dorset Yacht Company20. The Home Office, which was the boys' employer, held liable for damage. In this regard, the judges determined that the boy's act was foreseeable in the sense that, the yacht was the only available means they could use to escape. This is because of the established proximity between yacht owners and the guards; therefore, duty of care established. Just and reasonable In some situations even where there is established foresee ability and sufficient degree of proximity, the courts deny the duty of care as a matter of policy. In L and Another v Reading Borough Council and others21, they launched some complaints. These later appeared unfounded in the sense that, while still at a tender age, the father defiled his daughter. Consequently, the ruling made stopped the father from checking on the progress of his daughter. The Court of Appeal rejected his claim for damages with respect to the reasoning in D v East Berkshire Community Health NHS Trust22, nothing warranted the duty of care to the father thus, making it impossible for the imposition of this form of liability on council. Causation In order to establish negligence, it is important to establish causation. Causation is the link between the defendant and the breach. There are two types of causation, factual and legal causation. Factual causation is the direct causation of the break. This is the action by the defendant find accused to breach. However, for the test is the major causation test. But for the action of the defendant would the breach have occurred. If the answer is yes, it shows that it was the defendants’ action, which caused the breach. The defendant ought to take reasonable care that he can foresee in order not to breach the duty of care23. Substantial factor test here the question is if the breach was a substantial factor but not the main factor in the break, in this case the party is at fault. Legal or proximate cause can either follow Cardozo argument where there must be three elements, which are; (a) Foreseeable plaintiff. Who is a party that directly affected by the breach in question. (b) Foreseeable injury-the injury caused to the plaintiff by the breach must be foreseeable. (c) Foreseeable manner, the manner in which the injury occurs should be foreseeable such that it happens because of the breach by the defendant on which the defendant would have foreseen. The three elements should be present in order to establish proximate cause of the accident causation and therefore breach. The other argument is the Andrews argument, this argument states that the damage that occurs is the ultimate result of the original negligence. If due to the defendants’ negligence the plaintiff is injured, then the chain of injuries of events initiated by the first breach the defendant will be liable for all of them. These arguments also hold even where there are subsequent intervening actions. In Simonds v Isle of Wright council24, The playing field could not be free from all hazards. This is due to the fact that, following the school's earlier diagnosis of the hazard, nothing bestowed them with the responsibility of making further steps to access. In this case, causation was the issue. The instructions to a five year old were to return to his teacher after lunch with his mother during a sports day. As a result, the boy went to play on the swings and broke his arm. The judge held that the school was not responsible for the boy; therefore, the mother's act of negligence did could not break the chain of causation. However, this appeared simply as an accident that did not portray any causative fault. The school had a good plan for handling the swing-related cases25. The claimant is the only one who played on them. By taking into consideration the element of risk, it was not prudent for the judge to impose a legal duty on the school. Since the mother had not redelivered the child back to school, there was no breach in any duty by the school. Since they did not owe any duty of care, the action failed. Liability in Novus Actus Interveniens Novus actus interveniens means a break in the chain of causation26. The liability of a breach of duty of care is avoidable if the defendant can show that the breach was an act of subsequent and intervening action. An action can be intervening if the plaintiff or any other party also contributed to the breach leading to contributory negligence. A third party can also intervene without the knowledge or the foresee ability of the breach or a third party can deliberately contribute to the breach of the same. Res ipsa Liquitor The burden of proof always lies on the plaintiff. He must prove that there was a breach o duty owed by the defendant and not the defendant to disapprove it, the res ipsa liquitor is an exception of this rule for the facts speaks for themselves27. For this rule to apply there must be shown that the defendant was in actual control of thing that caused the breach and that the breach would not have happened if due care had been taken and that the cause of the breach is not known. This rule reverses the burden of proof and requires the defendant to show otherwise. In Mahon v Osborne where a patient died shortly after, an abdominal operation and post mortem examination found a swap in his body. Held there was negligence. Res ipsa liquitor applied only to things with common experience28, and that was not the case with complex surgical procedures. Conclusion It is evident that in order for any action in negligence to succeed there must be a duty of care. Where there is no duty of care established, the action in tort must fail. All actions in negligence rely on a duty of care owed to the aggrieved party. If there is no duty owed to the aggrieved party then there cannot exist an action in negligence. All actions in negligence are reliant on duty of care. References Bayern, J. The Limits of Formal Economics in Tort Law. Brooklyn Law Review, Spring, 2010, Vol. 75 (3), p707-752. Best, A., and Barnes, D. Basic tort law: cases, statutes, and problems. New York: Aspen Publishers Online, 2007. Bigelow, M. 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