Modern Tort Law and Essentials of Tort - Assignment Example

? "...one thing is clear, and that is that liability in negligence for harm caused by the deliberate wrongdoing of others cannot be founded simply onforeseeability that the (claimant) will suffer loss or damage by reason of such wrongdoing. There is no such general principle. We have therefore to identify the circumstances in which liability may be imposed." Lord Goff in Smith v Littlewoods [1987] 1 All ER 710at 731. Why is foreseeability not enough to establish a duty in this sort of situation? What else is required? In tort law, foreseeability is a critical element. In case of strict-liability and intentional torts, foreseeability is considered to be more relevant. Foresee is having the meaning as to know beforehand or to visualise in advance. Under the legal contour, foresee connotes the magnitude upon which something can be known well in advance. One cannot be held accountable for an injury happened due to one’s demeanour under the negligence in tort unless the risk of that harm was perceptible or foreseeable. In tort, under negligence, the foreseeability is established by a looking into whether the risk of harm is known to the perpetrator through constructive knowledge well in advance. Foreseeability is looked into on what the perpetrator knew or by reasonable assessment of the scenario. In determining what the standard of care owes by the perpetrator, foreseeability plays a significant role. A person will be held accountable for negligence under tort only if he is able to foresee on happening of an event well before1. The origin of duty of care can be said to be derived from the case law Donoghue v Stevenson where the claimant was ill after drinking some of the ginger beer where the remains of a dead snail were noticed .In this land mark case, the manufacture was held liable as he owed a duty of care to the claimants by the House of Lords. In this case, Lord Atkin advanced the “neighbour principle” that one should take adequate care to prevent omissions or acts which one can rationally foresee would likely to injure his neighbour2. In Macpherson v Buick Motor Co3, a duty of reasonable care is reposed on all foreseeable consumers of a product and not limited to those in privity of contract whenever it can be foreseeable that damage will result if the product is faulty. For instance, if a washing machine manufacturer supplies a defective product and if A buys the same and sustains harm, then A is definitely a foreseeable consumer for defective washing machine manufacturer. Hence, under Macpherson, the manufacturer owes a duty of reasonable care to A under tort law4. It is to be noted that in Smith New Court Securities v Citibank5 , for the recoverable damage, the test for foreseeability was extended whereas it was not extended in an action in deceit, which is another tort of negligence6. In a negligent action, to establish the element of duty, it is essential to prove that the defendant owed an obligation to the plaintiff who suffered harm. Thus, the duty of care by the defendant should be owed not only to the plaintiff but also will include the others within a certain magnitude along with the plaintiff due to the actions of the plaintiff. Under the zone of danger concept, there is a duty on the defendant that he should reasonably foresee or expect his actions to impact. Thus, if an injury has happened beyond the zone of danger and no negligence can be shown, then the defendant owes no duty to others. For the weird chain-reaction or remote incidents, there can be no recovery for injuries from the defendant7. If the defendant demeanour proximately created harm to the plaintiff, then the occurrence shall be held to be non-remote, and if it is not, then, it is said to be happened remote. Under the world-at-large concept, defendant is needed to foresee more remote chances of harm to individuals not in the adjacent area and of harms not as willingly predictable to happen from his demeanour. Under this concept, the defendant is anticipated to recognise all individuals in the adjacent areas who could sensibly be prone to the peril of harm due to the defendant’s demeanour. The magnitude of this scope also raises a query, whether the demeanour proximate made the harm, but it permits a more roundabout sequence of proceedings to be construed as to what would make proximate cause8. Under product liability negligence, a manufacturer can claim defence under extreme mishandling of his product. To make defence under this, a manufacturer must foresee some magnitude of mishandling of his product. The manufacture will not be hold accountable for any injuries, if the consumer poignantly makes alterations to the product or uses the product in a style that the manufacturer could not have been reasonably anticipated9 . In Smith v Littlewoods Organisation Ltd,10 a cinema theatre was purchased by the defendants with an intention to demolish the same and convert the same into a supermarket. Immediately, after the purchase, the property remained unoccupied for more than a month. In the meantime, some vandals had caused fire and as a result, the plaintiffs’ adjacent property was damaged. Neither police nor the defendants were aware of this. An action was brought against the defendant by the claimant for negligence and it was held that there was no general duty of care to stop third parties creating damages. In this case, the main question raised was that had the defendant had foreseen the incident, the damage would not have caused. However, the court was of the opinion that there exists no positive duty on the defendant to act as the foreseeability of duty of the damage was not in itself adequate to establish the duty of care by the defendant. Beldom LJ opined in Brown v Lewisham and North Southwark Health Authority that a doctor should exhibit care in the diagnosis, medical check-up, and treatment of the health condition of his patient, mainly to avoid harm to his health from perils which a skilled medical practitioner would foresee as probable to result due to his failure to carry-out such check-up11. In Dorset Yacht Co v The Home Office, Lord Diplock held that foreseeability cannot be regarded as the only one yardstick, but it is essential to give proper weight to the previous decisions, propinquity and public policy12. In Pannett v McGuiness13, in a demolition site, rubbish was burnt by demolition contract. Some workmen were assigned to supervise the same and to prevent any child approaching it. While the supervisors were away, P, a five year child fell into the fire. It was argued that P was a trespasser and supervisors in the site used to chase away those kids many times. It was held that the demolition contractors were accountable as their employees aware of the presence of kids and precautionary steps could have been taken to stop the occurrence of the accident to the kid14. In Kent v Griffiths15, the court of appeal viewed that if an ambulance service accepts an emergency call, then there exists a duty of care owe by the ambulance and that to within the possible time in favour of the patient. If the ambulance after accepting the emergency call did not come promptly, then the claimant would suffer further ill-health, which could be reasonably foreseeable in such scenarios. In opposition, nonetheless, if a criminal injures himself to escape from the arrest by police, then, no duty is owed, even if the attempted escape was foreseeable. In Johnson v Rea Ltd, defendants were stevedores and there was spillage of soda ash while unloading and failed to make it clean by removing the same. A trespasser was injured while passing the same. Defendant was held liable as he had a duty to have the surface clean and failure to remove the spilled soda ash was held to be actionable. Thus, the defendant had an obligation to foresee the injury that may cause, if soda ash was not removed from the spot16. In Jolley v Sutton London Borough Council (2000), an abandoned boat was kept in the open yard close to residential apartment, which was owned by the council. Some children tried to repair the boat, and the claimant suffered a grave injury while repairing the boat as the boat capsized. It was observed that the local council owed a duty of care to the claimant as it was rationally foreseeable about the omission on the part of the council to the remove the boat which was the sole reason for the injury suffered. The defendant council should have foreseen the probable for harm17. Lord Esher MR observed in Lievre v Gould 18 where an action which engrosses a foreseeable peril of creating direct physical harm to those nearby, as physical nearness will be enough to establish a particular relationship of proximity19. In Heaven v Pender20 , Brett Mr emphasised the need of proximity as the essential requirement on the test of foreseeability. George v Skivington21 , the court observed that a manufacturer had an obligation to exhibit reasonable care to the buyers. In Bolton v Stone22, Lord Reid was of the view that despite the fact that reasonable foreseeability that some stranger could be harmed by a cricket ball in a cricket stadium, but this alone would not suffice to corroborate that the defendant had failed to initiate reasonable care. A defendant is not warranted to eradicate all perils. Though the harm was foreseeable in this case, the court was of the opinion that it would not have been rational to oblige the defendants to initiate further steps to minimise this risk given the cost it would associate23. The case Caparo Industries Plc v Dickman24is pertaining to the professional negligence and the main issue is whether auditors could be accountable when their reports were banked upon by stakeholders. Lord Bridge observed that further to the foreseeability of damage , the required components in any scenario resulting in a duty of care are that there should be a close nexus between the party who is owing a duty and to whom such duty is owed , which is an association qualified by the law as ‘ neighbourhood ‘ or ‘ proximity’ and that the scenario should be one in which the court regards it just, fair and reasonable that the law should inflict a duty of a given magnitude for the advantageous of another party by a party. In the above case, Lord Oliver of Aylmerton observed that the duty of care in tort banks upon not purely on the availability of the crucial element of the foreseeability of harm to the plaintiff but also upon its concurrence with a further essential element like’ proximity’. Lord Oliver cited the Lord Atkin observation in Donoghue v Stevenson case that such proximate and direct associations that the act protested whether it directly impacts an individual whom such defendant said to be initiate adequate care that would be impacted directly due to his hasty act25. It is generally viewed that the case Caparo v Dickman has framed threefold test to prove the availability of duty of care criteria. If all the under mentioned questions answered in the positive, then it is construed that there exists a duty of care. Is there enough closeness between the defendant and the claimant? For someone in the claimant status, was it foreseeable that the defendant’s action would result in damage or loss? In these scenarios, was it reasonable, fair and just to impose a duty of care on the defendant?26 For instance, it is alleged that a child was affected due to administration of polio vaccine by a doctor. In case of negligence under tort, if it is alleged that a doctor is in breath of the duty of care that was not successfully carried out appropriate medical tests to find out that the child had an allergy to the polio vaccine. In such a scenario , it is not only essential to prove the foreseeability, but also it has to be demonstrated not only that the vaccine has really caused the harm , but also that there has been an infringement of duty on the side of the doctor which caused the harm. For instance, if two or more persons had indulged in the cause of detrimental fumes so that the claimant was affected and was responsible for spreading of disease, then they jointly owe the duty of care to them. In such scenarios, the court is expected to view that the both defendants are accountable. It is observed that it is enough to demonstrate that the defendant infringement of duty significantly caused the damage, and that is essential to demonstrate that the defendant’s fume was responsible for the damages. The chief objective of the rules of causation is to keep out those actions that are not considered to be the cause of the damage. Even if there had been no infringement of a duty of care, if it is demonstrated that the same damage would have been encountered, then the claimant may succeed in his efforts. However, it cannot be concluded that even if the damages would not have been incurred without the infringement of duty, still defendant can be held accountable in certain scenarios. Thus, the breach of duty may unleash a volley of further incidents. However, from the original negligence some of these chains of events will be regarded as too “remote” and for it to be proper to make the defendant accountable for those remote events. In Jones v Livox Quarries Ltd27, it was observed by the Denning LJ that even though contributory negligence does not bank upon a duty of care, it does foot upon foreseeability. Just the foreseeability of harm to other is expected under actionable negligence, likewise, in the contributory negligence, foreseeability of injury or harm to himself. An individual is said to be culpable of contributory negligence if he had rationally to have foreseen that, and , if he did not function as a prudent , reasonable man , there is every chance that he might inure himself and in his doings , he should see that the chance of others being careless28. To sum up, it is to be noted that foreseeability alone is not enough to establish a duty of care under the tort law. Under product liability negligence, a manufacturer can claim defence under extreme mishandling of his product. In Dorset Yacht Co v The Home Office, Lord Diplock held that foreseeability cannot be regarded as the only one yardstick, but it is essential to give proper weight to the previous decisions, propinquity and public policy In Bolton v Stone29, Lord Reid was of the view that despite the fact that reasonable foreseeability that some stranger could be harmed by a cricket ball in a cricket stadium, but this alone would not suffice to corroborate that the defendant had failed to initiate reasonable care. In the Caparo Industries Plc v Dickman, Lord Oliver of Aylmerton observed that the duty of care in tort banks upon not purely on the availability of the crucial element of the foreseeability of harm to the plaintiff but also upon its concurrence with a further essential element like’ proximity’ As decided in Caparo Industries Plc v Dickman, three essential elements like closeness , foreseeability and reasonability should be there to impose a duty of care on the defendant and thus , foreseeability alone won’t suffice. For instance, just foreseeability by a doctor that a vaccine would cause the harm to a child is not adequate , but also that there should be an infringement of duty on the side of the doctor which caused the harm is to be proved for inflicting a duty of care on the defendant. 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