Legal Environment and Business Decisions - Essay Example

? Legal Environment and Business Decisions Negligence Case Study Enter the Number or College of the 28th August, 2012 Anna’s Legal Rights Issue Anna the plaintiff accepted a lift from the defendant Michael in an unavoidable circumstance which caused an accident injuring both seriously. The plaintiff can claim compensation for personal injury as well as economic loss under negligence in this case. But she has to prove the defendant had been negligent in his duties towards her with strong evidence. Rules Tort of Negligence According to the definition in the Oxford dictionary of law, Tort can be interpreted as an unfair action or misuse of a particular right, causing trouble for others, paving way for legal charges. The Law of tort is used to punish people mishandling their rights carelessly or deliberately. The 14th century French word “Tortum” translating to ‘twisted’ is the base of the legal word “tort” (Smellie, 2002). Negligence is an unintentional irresponsible act considered as a breach of legal duty which any rational person would not do under normal circumstance. Any breach of duty which harmed the victim due to defendant’s fault can fetch the victim proper compensation for the injury or damage caused, under the negligence of tort law (Winfield, 2006). According to the Law of Tort, the prima facie case requirements for the victim to file a case are as follows 1. As strong evidence for breach in duty of care 2. Proof that the plaintiff’s damage is caused in connection to the defendant’s negligence 3. Proof that the foreseeable nature of the harm or damage was ignored by the defendant due to their negligence (Cooke, 2005). Analysis There are five important elements of consideration in this case. (1) Did the defendant Michael owe Anna duty of care? (2) If so, how did Michael breach his duty of care? (3) What damages have Anna suffered due to his Negligence? (4) Room for contributory negligence and voluntary assumption of risk in the case (5) Sort of compensation Anna is seeking and the chances for reduction Anna will be compensated only if the first three elements are proved to the satisfaction of the court. Tort law will provide the required remedy as compensation to the plaintiff based on the next two elements. The compensation may be of any form ranging from injunction to monetary rewards (Harowood, 2003, p.5). Duty of Care A person shall be subjected to trial if they fail to fulfill their “Duty of care”. Donoghue v Stevenson case, states Michael was supposed to help Anna according to the “Neighbor principle” in a vulnerable situation. Michael did so, but was not able to fulfill his “Duty of Care” completely as he did not foresee an accident. Breach in Duty of Care Michael was drunk and had difficulty in driving when Anna approached him for lift. He offered to help Anna considering her risky situation. But did not take enough care to drive safely. The defendant did and did not offer reasonable care in this case. “Reasonable care when dealing with others” is the most emphasized point in duty of care. Each case has a different level of reasonable care in accordance with the people and the situation dealt. The tort law determines what is reasonable care based on the explicit situation defined in each case (Atiyah, 1972). Anna’s Damages Anna suffered severe physical injuries along with Michael when the vehicle slipped off. She suffered monetary losses due to absence from work. The physical pain and monetary loss caused her great mental agony leaving her in a state of depression. Can Michael be held responsible for Anna’s loses? According to Anna, Michael was committing a legally wrong act by driving drunk. His decision to take Anna along with him when he himself had difficulty driving safely was a breach in duty of care. Contributory Negligence Anna noticed Michael smelled strongly of alcohol before parching on his vehicle. Since it was raining, late night and the plaintiff did not see any other means of transport in the area she decided to take the risk of travelling with the drunkard driver. Both Michael and Anna are at fault equally. The plaintiff demonstrated voluntary assumption of risk in the case, knowing well the defendant was drunk. Lord Hoffmann clearly pointed out the damage occurring due to the defendant’s conduct is not enough to punish them. Only the damage resulting from the “wrongful aspect of the defendant’s conduct” should be considered in case of Negligence cases (Mullis & Oliphant, 1993). Michael did not have any wrongful intention to harm Anna purposefully. He also suffered physical injuries and monetary loss similar to the plaintiff. Anna certainly cannot hold Michael completely responsible for her condition. Michael’s defense Does the defendant Michael own a duty of care to Anna? Michael can certainly defend himself stating, he purely intended to help Anna even though he does not own a duty of care to her. Michael could have refused to take Anna with him and still suffered the same fate. He stopped to show “Reasonable care” to a neighbor. It cannot be a cause for breach in duty of care. Was the risk foreseeable? According to Lord Atkins’s statement in Donoghue v. Stevenson [1932] AC 562 at 580, any person who suspects there is a risk involved in his duty of care should try and refrain from helping the neighbor, to prevent injuring them. (Atiyah, 1995). i The defendant does not claim the plaintiff isn’t injured. But the causation of the damage wasn’t exactly the breach of duty in care. Michael wouldn’t have accompanied Anna if had foreseen the accident. Michael can claim he suffered more physical injuries than Anna and more monetary damage as his vehicle is also smashed. He wouldn’t have put himself through all this trouble if he had foreseen the likely accident. Causation in tort should consider several recognized legal doctrines in addition to factual questions (Farran & Corrin, 2006). The plaintiff claims the defendant ‘smelled’ of alcohol. The defendant can claim he did not drink. The smell might be due to a leaking beer bottle or a drunken colleague he dropped off before a short time. Causation will check Lord Wilberforce’s two stage testii proposed in the Anns V Merton case. First it will check the closeness between the defendant and the plaintiff to see if their relationship caused the motive for any valid attack. Second it will check whether there were any specific policies which caused the failure in duty of care. For example, the defendant hit the car on the tree to avoid hitting an old man crossing the road (Kidner, 2006). Causation and Remoteness of Damage Even if Anna proves Michael was definitely drunk using the hospital records which treated them for immediate injuries, causation in Tort will not accept it as a reason for creating intentional damage to the plaintiff. If the plaintiff is so sure the defendant is drunk, she should have avoided travelling with him. The accident was not foreseen by both the defendant and the plaintiff. Causation in Tort will also consider the remoteness of damage, the part of contributory negligence, voluntary assumption of risk and the quantity of damage caused due to breach in duty of care. “Consider the damage would not have happened but for the fault, then the fault is the cause of the damage” (Prof Dr. Ohly, 2008). The plaintiff cannot assure the defendants ‘fault’ in this case ‘alcoholism’ alone caused the damage. If the risk was reasonably foreseeable the plaintiff should have persuaded the defendant to allow her to drive. Accidents can happen in a dark, slippery road, even if the plaintiff was behind the wheels. Since the accident was not created intentionally according to the causation in Tort, the defendant can plead innocence. Compensation for Anna Anna’s chances to claim compensation from defendant Michael are quite weak. She can either claim a monetary compensation for all her sufferings or ask the defendant to pay her medical bills for her injuries caused due to his negligence. She can even ask the law to punish him for committing a crime by drinking while driving. Whatever her claim is she should prove the defendants breach of duty is the reason for the mishap. The plaintiff Anna’s legal rights Should Anna suffer for using the only available support in a helpless situation? Certainly no as Law of Tort still have enough rooms to help her claim her due compensation. The Law of Tort has undergone several changes since its inception in the beginning of the 19th century. On early stages of the commencement of the negligence law, there were lots of loopholes paving way for escape of the defendants who harmed their victims carelessly. But the law was revised in time to prevent this misuse. The Law Reform (Contributory Negligence) Act 1945 clearly sates “Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage….”(Clarke, 2010, p.1) Michael can be sued under duty of care and Negligenceiii. Drinking and driving is a crime. Offering a lift to a vulnerable person in that drive is clear breach of duty. Though the plaintiff took the lift on voluntary assumption of risk, the “the central element of control” the vehicle was under Michael’s control (Jenny Steele, 2007, p.711). So he is responsible for compensating Anna on her loss. However, the plaintiff’s own contribution in inducing damage and their responsibility in avoiding that will be also considered. Given the fact that both the parties are injured, there will be a considerable reduction in the compensation claimed by Anna. The reduction will analyze the blame of conduct thoroughly as it is well known that the most blameworthy the claim is, the most responsible the claimant is (Clarke, 2010, p. 3). Similar judgments have been passed worldwide in various other cases. In Wells v Tinder (2002) unrep CA 9.7.200 case, 25% of the total compensation amount claimed was reduced due to contributory negligence. The petitioner got hit by a car while crossing a street. The plaintiff accused the defendant for causing mental shock and physical pain, claiming monetary compensation. The defendant was accused of fast driving and other negligence charges. But, the court reduced 25% of the total claim made by the plaintiff stating, the accident could have been avoided if the claimant had been active enough to spot the defendant’s rushing car on time. Both the parties were negligent of their own safety as well as others. The court held the defendant responsible for the accident as he was the person handling the dangerous central element of control, in this case the car. Similarly, Clench v Tanner [2002] EWHC 184 (QB), a cyclist driving in the cycle lane, collided onto the rear of a vehicle in the lane. 50% of his claims were detected, stating, the driver of the vehicle was signaling the cyclist to caution him. But, the cyclist was too occupied to notice it. He kept driving with his head down, being partly responsible for his own injury. Contributory negligence cost the cyclist a great deal of money as well as physical injury and mental agony. Anna has to prove negligence is breach of duty and it has caused her severe loss because of the defendant's 'fault'. To prove negligence is a breach of duty, court will ask her to prove 5 points. 1. The probability of the accident: As in Ryland’s V Fletcher case, a person who escorts particular people in his property is legally liable to provide complete protection to them under all circumstances (Jenny Steele, 2007, p.711). iv The plaintiff argues there develops a non-delegable duty of care for the defendant when he comes forward to help a person in a situation like her. She was in a position of special susceptibility and reliance. She does not have any right or chance to take any precaution or control over the situation. It is the duty of the individual in control of the property, in this case the ‘vehicle’ to foresee danger and keep her safe. 2. The degree of inevitable danger: As seen in the Bolton v Stone case, the degree of inevitable danger involved is minimal. The case stated the probability of a ball from a fenced stadium hitting the inhabitants of the area is very less, and hence the stadium cannot be sued for negligence. The fact that the ball had fallen out of the stadium only countable number of times in two decades became a great plus point to the stadium. Likewise in Anna’s case the degree of risk involved is minimum, though there are several if and buts like rainy, slippery and dark night. There are thousands of vehicles driving past. But, the probability for a single vehicle getting hit is very low. The plaintiff shall point out the defendant was already having trouble keeping the vehicle in the road. He should have driven past her or explained his difficulty to her. While the probability of being hit is very low, he still managed to do the same purely because of personal ‘fault’ than any accidental occurrences. 3. Possibility of staying prepared: According to the Stevens V Brodribb Sawmilling Co. Pty Ltd case v discussed in detail in several tort law books, Anna the plaintiff is completely dependable on the person who had agreed to take care of her in a helpless situation. The person who takes the responsibility of helping another individual in such delicate situation is solely responsible for their dependant’s safety. If any harm is done to the person in the care taking individual’s power, the victim has complete legal rights to expect compensation (Jenny Steele, 2007, p.711). Since the plaintiff does not have any authority in this matter, she cannot be prepared for any risk. It is her right to claim the defendant the charges for her damages as he is liable to take care of her by all means, until she boards down from his vehicle. 4. The seriousness of the damage caused: The court will consider the degree of damage caused before issuing the remedy in the negligence Tort cases. In this case Anna shall produce the medical records of her injuries, the monetary loss she suffered due to taking absence from work, and the inexpressible mental agony, shock and physical pain she underwent for what was not her fault. 5. Social importance of the risk activity: As per the Tort Law any person who is proved to have failed in the primary duty fixed by the law can be subjected to trial, invariable of his powerful or pitiable position. This law is generally connected with the duty one person owes another and the personal damages inflicted upon the victim because of the beach in this duty (Vickery, 2012). Every citizen who comes forward to help others should act with utmost responsibility. Those who aren’t capable of taking care of them shouldn’t come forward to help others for the sake of law. Negligence of one person due to carelessness can prove fatal to another person. Be it a physical injury or property damage, the victims are made to suffer for no reason. The Tort law is liable to get compensation for all the victims who have been affected by the breach of duty of some other person, familiar or non familiar to them. The affected people should be compensated and the defendants should be punished to set an example for the society. As per the law of intervening causations any “natural and probable consequence” of the defendant which had caused the damage should be remedied appropriately (Hodgoson, 2008, P.14). Compensation and Deduction Considering the defense of Michael and the pleas of the plaintiff Anna, there are lots of chances for the court to rule out the judgment in favor of Anna. But, we cannot always assure the compensation available to the victim will be in monetary form. In this case, both the plaintiff and the defendant are injured. Considering the defendants vulnerable position, there are lots of chances for the court to rule out monetary benefits or reduce a substantial amount of it. Contributory negligence also plays a major part in the case, even though Anna underlines the occurrence of special vulnerability and dependence upon the person who offered to help her. The fact that the defendant consumed alcohol or not will not be of much importance as it comes under negligence of tort. The plaintiff can only condemn the defendant for drinking if she proves the accident would not have occurred if the defendant had not been drunk. Since there is no possibility to do the same, she has to accept the court compensation with the reductions. The punishment which will be enforced upon Michael for drunk driving if proven doesn’t connect with this negligence case requiring compensation. As in the Wells v Tinder judgment, both the parties are to be blamed equally. But, Michael is held responsible for controlling the car. Hence, he will be asked to compensate Anna to a certain level. Compensation will usually cover the medical expenses of the injuries caused by his fault. The compensation for the post-traumatic stress disorder will be considered only if the claimant proves she started to suffer depression immediately after the action. Conclusion There are chances for Anna to lose 25% to 40% of the total monetary claim she had placed.vi It is advisable for Anna to sue Michael, but she has to go through several procedures, testimonials and trials before she achieves success as Michael’s defense is as strong as her claim. The physical injuries and the monetary loss incurred by him in the accident will also be considered. As in Russell v Smithvii case, both the plaintiff and the defendant will be found guilty leading to a quick and unbiased reduction in compensation being rolled out in favor of both the parties. Law of Tort gives enough room for both the plaintiff and the defendant to prove their stand. The Australian law will provide justice to all fair claims of the plaintiff. The defendants can strive to prove their virtuousness taking advantage of the liabilities in the Law of Tort. The judgment given on Negligence Tort cases will never be similar as the “duty of care” interprets differently in every case. It is the duty of every citizen to ensure all their personal and professional actions are non negligent by all means, for their own personal wellbeing and safety of others. References 1. Atiyah, (1995). An introduction to the law of contract Oxford University Press: Oxford 2. Atiyah, (1972). The Modern Law Review. pp. 337-346. New Jersey: Wiley-Blackwell 3. Cooke, J., (2005). Law of Tort, 7th Edition. Pearson: Essex. 4. Clarke, J. (2010). Contributory Negligence in PI Claims. Retrieved August 28, 2012 from Old square website: http://www.oldsquare.co.uk/pdf_articles/3100183.pdf 5. Gibson, A. & Fraser, D. (2012). Business Law (6th Edition). Forest Hill, NSW: Pearson Education 6. Hodgson, D. (2008). The law of Intervening Causation (p. 14).Hampshire: Ashgate Publishing Limited. 7. Kidner, R., (2006). Casebook on Torts, 9th Edition. Oxford University Press: Oxford. 8. Prof. Dr. Ohly, (2008). Negligence. Retrieved August 28, 2012 from Nigerianlawguru website: http://www.nigerianlawguru.com/articles/torts/GENERAL%20PRINCIPLES%20OF%20NEGLIGENCE.pdf 9. Rogers, W.V.H., (2006). Winfield and Jolowicz Tort, Sweet & Maxwell: London. 10. Smellie, R. (2002). Understanding the negligence issues. Retrieved August 28. 2012 from the Fenwickelliott website: http://www.fenwickelliott.co.uk/files/docs/articles/html/understand_neg.htm 11. Sue Farran & Jennifer Corrin Care, (2006). Towards A Pragmatic Approach to the Contract Or Tort Debate In The South Pacific. Retrieved August 28, 2012 from Journal of South Pacific Law website: http://www.paclii.org/journals/fJSPL/vol04/8.shtml 12. Steele, J. (2007). Tort Law: Text, Cases, & Materials (p. 711). New York: Oxford Press 13. Vickery, R. (2012). Australian Business Law (7th edition). Forest Hill, NSW: Pearson Australia 14. V.H. Harowood, (2003). Modern Tort Law (p.5). London: Routledge - Cavendish 15. Mullis, A., Oliphant, K. (1993). Torts (pp. 16.8). Hampshire : Macmillan Read More