Foreseeability. Negligence and Tort - Assignment Example

? FORESEEABILITY Foreseeability Control over a Third Party The establishment of negligence claims relies heavily on the specific relationships between parties. Negligence claims against a third party, under omissions and acts, can only be imposed when all the elements of negligence claims have been proved. In an event that the plaintiff fails to prove any one element, then he or she loses the entire tort of negligence claim. The following elements should be proved: factual and legal causation, duty of care, damages, and breach of duty. The essence of existence of specific relationship between parties to establish negligence claims is based on the logic that such a claim can only arise in acts and omissions relating to these elements (Cooke, 2005, p. 12). Normally, it is assumed that such claims can be levelled against a third party because such party is liable for acts or omissions that led to harm, injury, or loss. However, in some circumstances, an individual may be in specific relationship with a third party and have a duty to control the conduct of the third party so as to prevent harm, injury, or loss to the claimant (Kidner, 2006, p.25). Control over the third party includes but not limited to the following: parent and child, car owner and a drunken or incompetent driver, mental hospital and patient, parent and child, and gaoler and prisoner. The need for control over a third party is informed by the position taken by Lord Goff in Smith v Littlewoods [1987] 1 All ER 710 at 731 when analyzing the rule of mere- omissions and making considerations for the exceptions to this rule. Lord Goff argued that there are some circumstances where the courts have established affirmative action duties. One of these circumstances is that the defendant has control over a third party who has caused damage to the claimant. Control over a third party is an affirmative action that has been given rise by a number of relationships. Examples of these relationships are parent and child and employer and employee, where the defendant has an affirmative duty to prevent harm (Kidner, 2006, p. 71). Normally, there should be a chain of causation between the negligence of the defendant and the damage caused to the claimant, as decided in Rouse v Squires [1973] QB 889. In such circumstances, the third party may be held liable for the claimant’s damage. However, where the defendant has control over a third party, or in circumstances where the third party is faced with a dilemma which has been created by the defendant, the causation chain is likely to be broken and the defendant may be liable for the damage caused to the claimant, as decided in Home Office v Dorset Yacht Co Ltd [1970] AC 1004. That notwithstanding, a defendant, in other situations, may not be liable due to the mere reason that his negligence makes the claimant’s damage by the third party foreseeable. As noted in Lamb v Camden LBC [1981] QB 625, liability may only be imposed if the negligence of the defendant makes it likely that the acts or omissions of the third party will result to damage to the claimant (Henderson, 2002, p. 448). At this point, it is important to highlight that there are two types of omissions that can be regarded as negligent act: where a person fails to take necessary precautions and passive inaction where an individual fails to take any action. Control over a third party often relates to the later type of omission. It should be noted that the determination of whether the acts or omissions of a third party break causation chain is based on whether there was a foreseeable intervention. The general rule in tort of negligence is that the original defendant should be held liable for harm that a third party has caused as a direct consequence of negligence, as long as it was the consequence was highly likely (Cooke, 2005, p. 101). Therefore, in cases where the defendant has control over a third party, or in circumstances where the third party is in dilemma that has been created by the defendant, it is not likely that the chain of causation will be broken. As such, the defendant will always be responsible for the damaged caused to the claimant. Moreover, the continuity of liability is imposed where the negligence of the defendant makes it extremely likely that the third party will result damage to the claimant, but not merely because negligence in the original instance makes damage by the third party is foreseeable (Kidner, 2006, p. 57).   Control over a Land or Dangerous Thing The law has a restrictive approach in regard to imposition of liability to acts and omissions that amount to acts of negligence. The law has made a clear distinction between misfeasance and nonfeasance in acts and omissions that fall under tort of negligence. The defendant may be liable for misfeasance when the harm that he or she has caused to the claimant has been through positive acts such as creating traps, beating, hitting, and other dangerous situations. On the other hand, the defendant may be liable for nonfeasance when a harm or loss has been caused by his or her failure to act because he or she is under affirmative duty to protect or assist the claimant from harms the defendant did not bring about or did not cause (Kidner, 2006, p. 40). Lord Goff provided some circumstances where the courts have established affirmative action duties. Control over land or dangerous thing is one of such circumstances. Control of land by an occupier may lead to duty of affirmative action in regard to acts of nature or the behaviour of visitors. Along with that, affirmative duty arises when the defendant has control over a certain thing which is likely to be dangerous when a third party interferes with it. In Dominion Natural Gas v Collins and Perkins [1909] AC 640 it was stated that, in such circumstances, the defendant may be under a duty to endure that such interference does not occur (Kidner, 2006, p. 72). The same was applied in the case that involved young children who stole a poisonous chemical (Holian v United Grain Growers (1980) 112 DLR (3d) 611). When giving the circumstances where the courts have established affirmative action duties, Lord Goff cited the case of Haynes v Harwood [1935]. In the case of Haynes v Harwood [1935], the defendant is accused of leaving a horse-drawn unattended in a busy street. It happened that a boy threw a stone at them prompting them to bolt. A police constable (the plaintiff) was on duty at the material time. He saw the runaway horses of the defendant with a van attached bolting in the path that had a woman and children. Seeing this, he rushed out and eventually stopped the horses, but he sustained injuries in the process. As a result of the sustained injuries, Haynes claimed damages. In the case, it was held that: Based on the evidence, the servant of the defendant, in leaving the horses unattended in a crowded street, was guilty of negligence. The defendants ought to or must have contemplated that someone might try to stop the horses with the aim of preventing injury to limb or life. Since the police were under the general duty of intervening to protect property and life, the injuries to, and the act of, the plaintiff were the probable and natural outcomes of the negligence of the defendants. The maxim of "volenti non fit injuria" was not applicable in preventing the recovery of the patient. Based on Brandon v Osborne Garrett & Co. [1924] and Finlay J. [1934], as well as the above arguments, the court held that the defendant owed a duty of care because he had created a source of danger when he left his horses unattended in a crowded street. The principle of control over a land or dangerous things applies to anything that has a probability of causing damage in case it escapes. As such, the “thing” does not need to be dangerous because some objects are dangerous if they escape, but safe when kept properly. This rule applies successfully to noxious fumes, fire, water and sewage, electricity, explosives, and gas. However, it should be noted that the element of the thing being described as dangerous is argued to be no longer practical and accurate. This is because the decision made in Cambridge water held that liability cannot be there under the principle in Rylands v Fletcher unless the appropriate type of damage was foreseeable. As such, the question of whether the thing is dangerous or not would be inaccurate and irrelevant. Thee case of Dominion Natural Gas v Collins and Perkins [1909] AC 640, PC involves actions for damages in respect of an accident against the gas company of the appellant. In this case, it appeared that the appellants were not occupying the premises on which the accident occurred and neither did they have contractual relations with the plaintiffs. However, they had installed a machine on the premises in question. The jury found out that the accident was a result of an explosion that led to emission of gases due to the negligence of the appellants; the appellants had directed the safety valve into the closed premises rather than into the open air as required. It was held that they were liable because they were negligent; they did not take a reasonable and easy precaution which they were supposed to have taken. Public Policy Consideration The tort of negligence is prone to social, political, economic, and moral values. Society is increasingly becoming more technologically advanced and complex, thus giving rise to novel circumstances that result to rise of negligence claims. As a result, public policy has become a determinative. However, there are those who argue that public policy considerations have influenced the changes and uncertainty to the law of negligence (Henderson, 2002, p. 453). Two major questions have emerged in respect to public policy consideration and negligence: how are the community values determined? And, when are the community values applied? In as much as the separation of powers between various state organs is untenable, political aspects continue to underpin numerous legal aspects, and vice- versa. In particular reference to law of negligence, it is nearly incontestable that public policy has continued to instruct and underlie all the elements of negligence (Kidner, 2006, p. 126). In Sutherland Shire Council v Heyman, Justice Deane’s states that public policy considerations need to be taken into account in determining the existence of duty of care in negligence. The proximity factors, as well as justice and fairness test stages are crucial in determining duty of care in negligence cases. Public policy considerations affect these stages directly; that is, they take into considerations policy which is of public nature, as well as indicating an error in considering distinction of private from public law. In Perre v Apand Pty Ltd, Justice Gummow states that the law of negligence is based on fault. Fault is a concept of morality, and public policy considerations seek to focus on issues that affect moral values. According to Cooke (2005, p. 80) notes that public policy considerations are reflections of beliefs that are held generally by the society as the best and appropriate. Therefore, public policy considerations are intertwined with what is considered to be the very essence of negligence law. Previously, there were concerns that extension of negligence liability were leading to more fraudulent claims and flood of litigation. The possible financial or commercial consequences, the risk- spreading possibility, potential conflicts with property rights, the intermediate liability prospect or moral and social values were given significant consideration in the law of negligence (Kidner, 2006, p. 92-93). This has changed in recent times where the courts have identified a variety of factors that may be relevant and applicable to the denial of a duty of care. Example of circumstances in which a duty of care may not exist includes the following: A duty of care will result to unduly defensive acts and practices by defendants who seek to avoid negligence claims that have adverse effects on the performance of some of public duty. A duty of care is cutting across a complex statutory framework that has been established by the Parliament to regulate specific situations, such as financial markets’ regulation. In circumstances where a duty of care tends to undermine the needs of other causes of action, especially in the case of multifarious commercial contracts where the parties involved have had chance to negotiate a comprehensive structure of contractual negotiations. Damages awards against a person of public authority exercising a public function might have considerable impact upon the available resources. Also, if such awards of damages may have considerable impact in terms of resources required to defend and investigate negligence claims. There is an optional remedy that is available to the aggrieved claimant; for instance, a statutory right to appeal against a government department or officer’s decision, or another cause of action like a breach of contract claim, or any other source of compensation like the Criminal Injuries Scheme. The claimant authored his own misfortune, as decided in Philcox v Civil Aviation Authority. Nervous Shock Nervous shock relates to the law of negligence in the context where an individual is seeking damages for psychiatric injury rather than physical injury. In English Law, it denotes psychiatric injury that has been inflicted upon an individual by acts or omissions of another (Cooke, 2005, p. 156). A claim can be considered as a nervous shock after being recognized as a psychiatric injury or disorder. Mostly, the following types of psychiatric illnesses are considered as nervous shock: depressive disorders, anxiety disorders, adjustment disorders, and post- traumatic disorder. As noted in Hinz v Berry, a person who is suffering from extreme sorrow and grief, but falls short of any of the recognized types of psychiatric illnesses cannot recover damages, because a person is expected to deal with sorrow and grief (Henderson, 2002, p. 428). In order for nervous shock to succeed as a tort of negligence, the claimant must be able to prove the following issues: the defendant owed the claimant a duty of care; the defendant was in breach of a duty of care; and, the claimant suffered damage as a result of breach by the defendant. In regard to the first issue, it is required that the claimant should prove that, indeed, the defendant owed him or her duty of care. In Donahue v Stevenson, Lord Atkin stated that someone should take reasonable care to avoid omissions or acts that he can reasonably foresee might injure his neighbour. In order to give the neighbour’s principle more weight, Lord Wilberforce, in Anns v Merton established a two-test stage: one, establishing whether there was adequate neighbourhood proximity or relationship between the claimant and the defendant. Two, if the first one was, establishing whether there were any public policy considerations that would have prevented a duty of care from being imposed (Kidner, 2006, p. 144-5). The concept of duty of care is developed around three aspects, namely: it is reasonably foreseeable that the defendant’s conduct will cause damage to the claimant; for instance, damage was reasonably foreseeable in Kent v Griffiths. The second aspect is that there should be sufficient proximity (physical closeness or legal relationship) between the claimant and the defendant, as was the case with Home Office v Dorset Yacht Club. The third aspect is concerning whether in all circumstances the courts consider just, reasonable, and fair for the law to impose a duty of care of such nature (Kidner, 2006, p. 151). The second issue that qualifies nervous shock as a tort of negligence is to establish whether the defendant was in breach of duty of care. This happens where it is proved that the conduct of the defendant fall below the expected standard of care. Under the law of negligence, the standard of conduct expected is that of a reasonable man. In Blyth v Birmingham Waterworks Co, Baron Alderson said that negligence is omitting to do something which a reasonable man when guided upon considerations which ordinarily regulate human affairs conduct would do, or do something that a reasonable and prudent man would not do. However, there are certain rules that apply if the defendant is a learner, professional, or a child (Cooke, 2005, 108). In most cases, young people and children are judged by the objective standard of the ordinarily reasonable and prudent child of the same age. Nonetheless, as decided in Mullins v Richards, as a defence to a tort, children cannot plead infancy. Similarly, if a young person commits an action that has an obvious harm, deliberately, he may be judged by the adults’ standards. The factors that a court will take into account in deciding whether a duty has been breached include the following: The degree of risk involved, because the claimant may bear characteristics that render the possibility of harm greater thus increasing the risk. A risk was shown to be involved in Haley v London Electricity Board, and that the London Electricity Board should have foreseen that blind people walk along the pavement. The practicability of prevention, because the courts expect people to ensure reasonable precautions to be taken in guarding against harm at others, as in the case of Latimer v AEC Ltd. The likely magnitude of harm- the courts take into consideration the risk of any damage caused to the claimant and the extent of that damage, as decided in Paris v Stepney Borough Council. Assessment of the defendant’s actions. As noted in Watt v Hertfordshire County Council, if the defendant was serving a purpose which is socially useful then he can be justified in taking risks. Finally, for nervous shock to succeed as tort of negligence, it has to be proved that the claimant suffered damage as a result of breach by the defendant (Kidner, 2006, p. 139). In order to establish this, the following three things have to be fulfilled: The factual cause of the damage needs to be determined. The claimant has to prove that were it not for the negligence of the defendant, the harm would not have occurred. This fulfilment is illustrated in Barnett v Chelsea Hospital Management Committee case. The extent of probability of damage has to be satisfied. In circumstances where there are several possible causes, the claimant has to prove that the negligence of the defendant resulted or contributed to the damage, as decided in Wilsher v Essex Area Health Authority. Damage remoteness has to be satisfied. In Overseas Tankship Ltd v Morts Dock & Engineering Co, it was established that a person is responsible for the foreseeable consequences only. Conclusion From the discussion, it is evidently clear that tort of negligence greatly entails wrongdoings of others in varying circumstances. As such, liability of negligence must be established with the view of seeking awards for damages. As observed, even though foreseeability has been relied upon significantly in determining liability in negligence for harm caused by the deliberate wrongdoing of others, it is clear that it is not the only basis that such liability can be determined. Since there is no such general principle, several circumstances in which liability may be imposed has been identified and discussed. They include: relationship of proximity, control over a third party, control over a land or dangerous thing, public policy consideration, and nervous shock. Bibliography Cooke, J, 2005, Law of Tort, Pearson: Essex. Henderson, J, 2002, "Why Negligence Dominates Tort." UCLA Law Review 50 Kidner, R, 2006, Casebook on Torts, 9th Edition. Oxford: Oxford University Press. Read More