English Torts Law on Negligence - Essay Example

?Topic:  Torts Essay Question: Does the idea of proportional liability- that the defendant pays for the chance that her negligence caused the claimant’s injury-serve justice? What is the proper scope of such idea in English Law? Where the defendant’s negligence caused the claimant’s injury - justice is equitably served when the defendant is held liable for the claimant’s injury. The defendant is required under English Torts Law on negligence to compensate the claimant by payment of damages or fine or by heeding an injunction as duly determined by the court. This should effectively deter people from being careless in the conduct of their duties. In a way this intends to enforce a standard of behaviour, to protect the life, welfare, and interest of unwilling victims of another person’s act of negligence. This principle on negligence is not new. In Bible times, the Divine Law dictates that a man could be deemed guilty by his negligence: “In case you build a new house, you must also make a parapet for your roof that you may not place bloodguilt upon your house because someone falling might fall from it.” –Deuteronomy 22:8, The New World Translation of the Holy Scriptures. Negligence Defined "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done." (Blyth v. Birmingham Water Works English Torts Law on Negligence The Torts Law particularly on negligence has its own precedence from the Divine Law itself. Negligence is one of those torts in which damage must be proved. Once a breach of duty has been established, the claimant must therefore also show that the breach has resulted in injury or damage (the causation issue) and that the injury or damage is sufficiently closely connected to the breach (the remoteness issue). The Tort of Negligence developed in 1932 beginning with the case of Donoghue v Stevenson which established the Duty of Care owed by manufacturers to end consumers. The following elements must be established to warrant the claim of negligence: 1. There must be a Duty of Care between the claimant and the defendant. 2. A clear breach in the Duty of Care is established. 3. Such breach resulted to some damage to the claimant. 4. There is no applicable defence to the defendant. Duty of Care In the first negligence case (Donoghue v Stevenson), Lord Atkin spoke of the backbone of the duty of care known as the neighbour principle by saying that defendant must take reasonable care to avoid acts or omissions which can be reasonably foreseen would possibly injure a neighbour, one who would closely or directly be affected by any acts or omissions. Lord Atkins stated that: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question”. The case of Caparo Industries plc v Dickman in 1990 gave rise to the Caparo three-way test, which is the modern day test for determining duty of care: 1. It is reasonably foreseeable that the claimant may be harmed by the defendant’s failure to observe reasonable care. 2. The relationship of the claimant and the defendant indicates a sufficient relationship of proximity or remoteness. 3. It is fair, just and reasonable to impose on the defendant a duty of care towards the claimant. In 1934 Lord Wright said: “In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owed.” (Lochgelly Iron Coal Co v McMullan 1934) The “Reasonable Man” Standard of Care The basic rule is that the defendant must conform to the standard of care expected of a reasonable person. This is indicated by Baron Alderson when he said: “Negligence is the omission to do something, which a reasonable man, guided upon those considerations, which ordinarily regulate the conduct of human affairs, would do, or do something, which a prudent and reasonable man would not do”. (Blyth v Birmingham Waterworks Co [1856] 11 Exch 781) The Test of a Reasonable Man In one case the House of the Lords has had to determine aspects of the test which should determine conduct of a reasonable man. Lord Macmillan highlighted two important points in the case of Glasgow Corporation v Muir [1943] AC 448: 1. The reasonable man is abstract and objective, who is expected to possess the common understanding of risk. 2. The decision on what a reasonable man should do, in the circumstances of a particular case, is still for the judge to decide. 3. Where a particular skill or professional expertise is involved, the appropriate comparison is with a person with the same skill or expertise is likely to behave at the same time and at the same set of circumstances. Hindsight or knowledge not available at the time of the alleged tort cannot be use as a basis for judgment. There were cases when allowances were made for special circumstances that may have affected foresight of the defendant like sickness, or unreasonable pressure to deliver. (Roe v Minister of Health [1954] QB 66) In cases where in breach of duty is an omission, or a failure to do something which should have been done, it is necessary to think forward and speculate on possible outcome had the dependant did not commit the tort. However there may be some doubts in the mind of those involved as to what could have naturally occurred had the defendant behaved as expected Breach of Duty When deciding whether there has been a breach the courts take into account appropriate factors. These include the probability of harm and any special skill of the defendant, and whether or not reasonable care has been taken by considering the degree of risk involved in the case. A person who claims to have a special skill is judged by the standards of a reasonable person possessing the skill. The risk of injury was certainly foreseeable, and probable enough to merit special attention from the defendants. The courts will look at the practicability of taking precautions, as the courts expect people to take only reasonable precautions in guarding against harm to others. Rules on Causation The claimant must satisfy the rules on causation that the breached on the defendant’s duty of care caused the injury or damage, or contributed largely to the harm incurred. The liability of the defendant is limited to the damage or injury that can be traced to the failure to provide due care expected of a reasonable man after contemplating foreseeable consequences of an action or an omission of an action. Such damage or injury may not be limited only to actual physical harm, damage to property, but also applies to psychiatric injury that in a reasonable timeframe can be directly traced to a specific negligence on the part of a defendant. To warrant compensation, such psychiatric harm must be a direct result of the claimant’s presence, witnessing the event and its aftermath, and must have been within a reasonable time from the experience to satisfy the requirement on remoteness or proximity. Rules on Proximity or Remoteness The rule on proximity or remoteness of the injury suffered as a consequence of a negligent behaviour limits the extent of the liability of the defendant. This implies that the defendant cannot be liable for every consequence that can be traced back to the original negligent behaviour. The claimant must be able to substantially present proof of damage to warrant. In contrast, if defendant could satisfactorily prove that such damage would have been suffered even if there had not been any breach on the duty of care, then the defendant could not be held liable for the damage. The very remote or distant chain of events resulting from the original or actual negligent cannot be considered altogether as a liability of the defendant. If the damage was merely an indirect consequence, and there was an event or sufficient time has elapsed that broke the chain of causation, then the defendant cannot be held liable as evident in the decision of the Court of Appeal in Re Polemis [1921] 3 KB 560. Defendant’s Duty to Eliminate Risk It is the duty of the defendant to eliminate foreseeable risk, to the extent expected of a reasonable person. However, it is not compulsory that the defendant should completely eliminate all perceived risk. It will help to consider the probability that damage to another person will likely occur, the gravity of such damage, and the cost involve in compensating for the damage. Loss of a chance Claimants have the right to be compensated for the loss of future chances. In cases where the identified tort had caused physical injuries resulting to permanent disability and unemployment then the compensation that should be awarded to the claimant by the defendant should also pay for the chances of a future career. The egg-shell skull cases This refer to cases where the claimant suffers from an existing susceptibility or abnormality and thus suffer more serious injury or damage as a result of a foreseeable negligence of the defendant, the defendant is deemed liable for the aggravated injury sustained by such abnormal condition of the claimant. Medical Negligence Case involving with professionals special skills are found in medical professionals, thus these torts are separately classified as medical negligence. In the case of medical negligence, the defendant is to be compared with a reasonable person of the same specialisation; a general practitioner is reasonably compared with another general practitioner, and a cardiologist with another cardiologist. This is a special challenge in settling cases involving medical negligence due to the fact that a medical professional have different approaches to healthcare. One doctor may recommend therapeutic treatment, but the other doctor may have another reasonable. The court cannot decide on whether one approach is right or wrong when both methods are equally supported with sound medical practices. The court can apply the principle of the ‘Bolam test’ and has the right to examine whether a medical practice in question is reasonable or not. (Bolitho) Mitigating Circumstances Defendant’s liability is mitigated where the claimant consents to the injury or damage done. A case in point is when the defendant has given warning, post danger notice, and took active steps to secure the site to prevent foreseeable danger. (Tichener v British Railways Board) Claimant’s damages may also be reduced in proportionate to the claimant’s contribution as determined by the court to the damage sustained, this is called contributory negligence. If the claimant is involved in illegal activity at the time of the alleged negligence, this may extinguish or reduce the defendant's liability. In Latin, ex turpi causa non oritur action, which means no right of action can arise from an illegal cause is the illegality defence, and therefore the defendant could not be held liable. References: 1. http://www.londoninternational.ac.uk/current_students/programme_resources/laws/subject_guides/tort/tort_ch1to4.pdf 2. http://www.absoluteastronomy.com/topics/English_tort_law 3. http://www.expertlaw.com/library/personal_injury/negligence.html 4. http://en.jurispedia.org/index.php/Negligence_(uk) 5. http://en.wikipedia.org/wiki/English_tort_law Read More