Duty of Care: An Evaluation of Its Fitness for the Purpose - Assignment Example

? Duty of Care: An Evaluation of its Fitness for the Purpose Introduction The law of persons has developed over many years. As a result, various elements have been being introduced while others have undergone appropriate amendments to meet the intended purpose. The same chronology has seen the development and improvements in the practice of tort law across different countries as reiterated by Comfort Tom.1 The law of tort in its broad sense relates to legal implications set forth to govern human interaction and harmony of existence. Thus, the idea of negligence or unreasonable behaviour was introduced in the practice of tort law in order to control foreseeable misdeeds and related mishaps whose occurrence might be injurious to other parties in the society. Despite the fact that the law of tort has significantly contributed to the maintenance of law and justice, some scholars argue that the duty of care imposes a generalized responsibility of people. In Anns v Merton London Borough Council [1978] AC 728, Lord Wilberforce argued that there ought to be some element of foreseeable harm and reasonable proximity between the events of the parties involved in order to ascertain the existence of duty of care. However, Brenan J intellectually overruled Lord Wilberforce’s approach in distinguishing the conceptual duty of care in Sutherland Shire Council v Hayman [1985] 60 ALR 1. 2 With that in mind, this paper evaluates the essence of duty of care to determine whether it is fit for the purpose in line with the propositions of Brenan J. Particularly, the paper provides a succinct discussion on the various components of negligence that define the need for a broad consideration of facts beyond the mere existence of prima facie duty of care. Thus, the paper culminates with a rational perspective of the duty of care and its relevance in contemporary law. Duty of Skill and Care The duty of skill and care is a matter of rational judgment based on practicable reasoning that other persons in the same situation would ordinarily resort to a similar judgment. In the case of tort, there is need to consider the possibility of foreseeable harm from unreasonable commission or omission of an act from which a person may suffer personal injury or injury to their property. On the other hand, the duty of care is defined as the obvious expectation of diligence to ensure that one’s actions are not injurious to other people or their property as postulated by Abraham Kenneth.3 In defining the legal context of the duty of care, Lord Aitken stated that the duty of care can be proven when one’s act of omission or commission might result in foreseeable injury to another person. This definition was well illustrated in Donoghue v Stevenson [1932] AC 562 House of Lords.4 It was held that the defendant owed Mrs Donoghue the due of care to ensure that the content of their product was safe from any offensive materials. Accordingly, the duty of care is often recognized by law as the relationship to situations that would otherwise require one to take reasonable care to avoid mishaps resulting in reasonably foreseen injuries. Breach of such relationship would attract legal redress for purposes of serving justices and restoring order. Ideally, there are three essential components in determining the duty of care. The first one relates to reasonable foresee-ability. It is practically expected that a driver in his performance of the activity will be careful enough not to run over other road users including fellow motorist and pedestrians, or cause damage to the adjacent property. Consequently, a reasonable person would not resort to commit or omit such acts that might otherwise cause personal injury to people or damage of property. In Ande v Gabriel [1975] 12 CCHCJ, 2143, the Nigerian court held that the defendant owed his fellow road users the duty of care. For that reason, the plaintiff succeeded in his claim for damages on grounds of breach of duty owed to him by the defendant. This was however distinguished in Topp v London Country Bus [1993] 1 WLR 976 Court of Appeal.5 It was held that the defendant did not owe Topp the duty of care on grounds that it was reasonably unforeseeable that some thieves would steal the bus and eventually cause fatal accident to a third party in their mischievous act of stealing. This case brings out the importance of foreseeable harm in proving the duty of care. The second component of the duty of care is the legal consideration of proximity. In layman’s language, this factor can be defined as the closeness of the relationship between the event of negligence and the acclaimed injury presented by the claimant. Where there existed no direct association or link to the subsequent injury which would not be reasonably foreseen, then the court would overrule the existence of duty of care as held in Bourhill v Young [1943] AC 92.6 It was held that the motorist and his estate did not owe Mrs Bourhill the duty of care when she sustained injuries of mental discomfort at the site of blood resulting from a fatal accident that occurred 50 feet from where she was standing. When looking at the issue of proximity, it is important to consider the case of Sutherland Shire Council v Heyman (1985) High Court of Australia. It was through the ruling of this case that proximity became an important factor in qualifying the duty of care. In deciding the case, Brenan J highlighted that proximity could be viewed in different ways. It could exist between an employer and his employee, or between the course of an even and the loss suffered. Similarly, the case revealed that the aspect of proximity can also be distinguished in space and time with respect to a given case in question. That notwithstanding, Brenan J ascertained that foreseeability on its own cannot prove the existence of duty of care. In Sutherland Shire Council v Heyman (1985) 60 ALR 1, it was held that the proximity of time was so distant away that the claimant that iw was not reasonably just to hold the Council liable for the loss suffered by Heyman after the building had survived stable for 25 years.7 The time was not sufficiently proximate to warrant the duty of care even if it was reasonably foreseeable that inadequate footing could result in structural failure of the building. It is on that same principle that the judge observed that the law should provide novel categories of negligence in line with correspondence to the present categories rather than on the mere basis of an obvious assumption to the existence of duty of care. The third factor in proving the duty of care is the underlying fairness in the opinion of the court. Whereas the first two conditions may exist, legal practice is of the opinion that the court should examine the case beyond prima facie evidence to ascertain whether it is within the context of justice for duty of care to be imposed on the defendant. In the event that the court determined that imposing the duty of care on the defendant would compromise the purpose of justice, then such duty would be restricted as seen in Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465.8 It was held that the claimant could not succeed despite the fact that the defendant owed her some duty of care. This ruling was based on court’s assessment of the prevailing conditions of justice in that it would not be fair to disregard an element of disclaimer at which the claimant entered into contract with full knowledge of the declaimer and then suffered loss. That same aspect of fairness was held by Lord Steyn in Marc Rich & Co v Bishop Rock Marine Co Ltd [1996] 1 AC 212 HL when the court ruled that the defendant’s liability was limited on grounds of justice and reasonability.9 Thus, the claimant could only recover part damages for the properly lost when the defendant’s ship sunk. In view of the outcome of these cases, it is worth noting that the essence of law must incorporate justice in all respect in line with incremental interpretation and application of existing jurisprudence. As such, determination of the duty of care must always be executed with justice and reasonability maxim in mind as accentuated by Lord Steyn. 10 Taking into consideration the three elements of proof in determining the duty of care and subsequent negligence, it is apparent that the law must distinguish the extent to which an individual would be responsible on duty of care. In examining such distinction, the need to the tort of negligence becomes a necessary factor. According to Bell Peter and Jeffrey O'Connell, the scope and nature of negligence is varied depending on the prevailing conditions especially when various interactions in the society are brought into legal perspective.11 However, these authorities observed that the basic principles in ascertaining negligence remain the same. The Tort of Negligence According to Anderson J, negligence refers to an act or omission of what would otherwise be committed or omitted by a prudent person as illustrated in Blyth v Birmingham Waterworks Co. Exchequer [1856] 11 Exch. 781, 156 Eng. Rep. 1047.12, Specifically, the law of tort quantifies negligence with respect to reasonable ability to foresee probable harm by the action or omission of one party to another. If there is any probability that harm might occur, and such probability can be determined by a reasonable man, then the occurrence of event alluding to personal injury under such circumstances would qualify as an act of negligence.13 First, there must be objective proof of duty of care based on reasonable facts surrounding a given event. According to Linden Allan, one can only claim damages arising from purported negligence if the defendant owed the pursuer the duty of care.14 In Gibson v Orr CC of Strathclyde [1999] SC 420 Outer House Scotland, it was held that the police officer owed motorists the duty of care to forewarn them of the danger of driving in the direction of the collapsed bridge. Since the chief constable police had earlier taken control of the disaster, he ought to have exercised reasonable duty of care to place warning sign posts at a safe distance from the collapsed bridge before leaving the scene. As such, the claimant was awarded damages for injuries sustained due to defendant’s failure to exercise the perceived duty of care. 15 The second condition relates to breach of such duty owed to the claimant. Breaching the duty of care which results in foreseeable actual injury suffered by a person or his property would be tantamount to negligence. In addition to proving that the defendant owed the claimant some duty of care, the law requires that arising claims of negligence must be substantiated by perpetual breach of duty. The plaintiff must ascertain beyond reasonable doubt that there was reasonable probability of harm and that the defendant failed to take practicable precaution to prevent the occurrence of such harm.16 Besides, the law maintains that failure to take practicable measures must result in injury or loss suffered by the claimant in order to succeed in claim for breach of duty of care. In Rylands v Fletcher [1868] LR 3 HL 330, Blackburn J observed that the defendant breached the duty of care by not taking practicable measure to contain the waters of the reservoir within his land.17 The reservoir was flooded and the waters escaped to the claimant’s minefields causing him damage to property. The defendant was held liable for breach of duty of care and the court awarded Rylands compensatory damages. From a different perspective, a motorist owes other road users the duty of skill and care. In the same spirit, the law expects the motorist to exercise diligent driving practices to preserve the duty of cared owed to other motorists and pedestrians. In the event that a speeding motorist causes an accident as a result of his careless driving under ordinary circumstances of reasonable road usage, the court will hold such motorist liable for breaching the duty of care as illustrated in Baker v Willoughby [1970] AC 467.18 In the case of teacher-student relationship, the law expect the teacher to take all practicable measures to protect the students under his care from harm during permitted school hours. According to this maxim, it is reasonable foreseeable that when students are unsupervised within ordinary circumstances they might become vulnerable to mischief and injuries caused to them by other unruly students.19 Therefore, the school setting also creates an implied duty of care whose breach shall attract legal consequences if the students suffer injury attributed to teachers’ breach of duty of case. At the same time, teachers are expected by standard ethics to provide safe and conducive environment for their pupils for the time when such pupils are under their care. By proxy, this rationale implies that failure by teachers to afford the students such safe and conducive environment might reasonably result in foreseeable injury to the pupil as held in Richards v Victoria [1969] VR 136.20 It was held that the class teacher owed her pupils the duty of care and she breached that duty by not making any attempts to stop the fight in which the plaintiff suffered serve head injuries. In medical profession, the concept of duty of care and negligence are more defined than the ordinary understanding of negligence in tort. According to Breen Kerry et al, the need to observe professional diligence is a universal factor in medical practice as illustrated in Norman v. Mercy Memorial Health Center, Inc. [2009] OK CIV APP 55.21 While the plaintiff did no succeed, the preceding jury observed that all it is the solemn duty of every professional to exercise all reasonable care and skill to protect their client form potential injury. The third condition in determining liability in negligence is rooted in the substance of injury sustained as a result of defendant’s breach of duty. It is the burn of the claimant to proof that the injury sustained was a result of the defendant’s breach of duty. Such injury would then be examined to by the court to ascertain whether it was a total matter of defendant’s negligence or that the plaintiff played some role in the matter. When the plaintiff can prove the existence of these preconditions rather than the prima facie evidence, the defendant would be liable for negligence irrespective of his subjective state of mind reiterated by Allan.22 Relevance of the Duty of Care in Tort Whereas the fundamental components of negligence shift the burden of proof to the plaintiff, the importance of prima facie duty of care cannot be overruled as observed by Kennedy Rosemary. 23 On one side, the duty of care arises out or reasonable practice and interactions within human society. On the other hand, it emanates from public expectation of reasonable diligence of skill and care to protect other people within one’s proximity from injury. According to Brenan J, every person owes his neighbour some reasonable duty of skill and care to ensure that their actions do not cause the neighbour reasonably foreseen injury to their person or property. 24 The basis of Brenan’s argument revolves around the fact that every human being has the right to enjoy ample health and safe environment free from interference or dangers imposed by other members of the society in their exercise of individual rights and skills. While some injuries might arise out of mere accident reasonably unforeseeable to both parties, liability may also arise when there is proof that the defendant failed to make practical efforts to diminish the impact of such inevitable event. 25 This forms the core and burden of medical malpractice in every day practice provided that the practitioner owes the claimant reasonable duty of skill and case. This same principle applies across all cadres of human interaction. Based on the disused constituents of the duty of care, the question of fitness for the purpose because a matter of sound judgment and the need for incremental categories of negligence. With that in mind, it is imperative to note that the main goal of law is to establish consistency of order and justice that governs human actions within social settings. Therefore, the principal value of the duty of care is an essential component of law since the ideals thereof would guard against mischief, malice and careless behaviours that might cause injury to other persons or property. Conclusion In light of justice and fairness, the maxim of prima facie duty of care ought to be accompanied by some aspect of reasonable justice. In so doing, the application of the duty of case within legal parameters will add value to objective reasoning and improvement of contemporary jurisprudence. Similarly, utmost consideration of propositions put forth by Brenan J for novel categories of negligence will create a balance between liability imposed on the defendant and the legal burden of proof obliged on the claimant as reiterated by Richard and Tengnah.26 Without such wisdom, subjective enforcement of the prima facie duty of care would critically undermine the purpose of law hence making it unfit for the purpose. 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