Major Issues of Tort of Negligence - Essay Example

? Tort of negligence of Institute Introduction Though Castle Cricket Club has remedy in contract as there was no consideration given it can still sue Brunel under the tort of negligence. The tort of negligence is a tort that awards damages for a breach of duty owed by the defendant to the plaintiff resulting in damage to the plaintiff undesired by the defendant (Keenan, 2007. P. 265). The tort of negligence was created in the House of Lords in 1932. Before then, the courts studied the circumstances of the case and so if there was precedent and decided, based on all these, if the plaintiff was entitled to redress. Tort of negligence There was no set rule defining what negligence was. It was in the case of Donoghue vs. Stevenson where negligence as a rule first arose (Oliphant,2005. P. 325). In this case the plaintiff’s friend offered her a ginger beer that was manufactured by the defendants. The drink was contained in an opaque bottle. She poured some of the beer and drank it. When she poured some more, she discovered that the drink had contained a decomposed snail. She then became sick because of the disgust from the thought that she had been drinking the remains of the decomposed snail. She sued the manufacturers. The defendants argued that if they had a contract, it was between them and the plaintiff’s friend, who was in fact the one who bought the drink. They therefore didn’t have a contract with the plaintiff and didn’t even know her. So they had no liability. From the courts arguments in this case, three major points came out- Contract fallacy: The court agreed that one doesn’t need to have contractual relations with someone else in order to be liable to that person. This point shot down the defendants’ argument. Lord Atkins’s Neighbor principle/ Foreseeability test: Lord Atkin said that “The rule that ‘you must love your neighbor.’ In law becomes ‘you must not injure your neighbor.’ One must take reasonable care to avoid acts or omissions which you reasonably foresee are likely to injure your neighbor. The question then becomes ‘who is my neighbor?’ and the answer seems to be persons who are so closely and directly affected by act and who are in my contemplation when I am directing my mind to the acts or omissions in question.” This point showed that the defendant did indeed owe the plaintiff a duty of care. The principle of product liability: This principle states that the manufacturer of a defective product is liable to the ultimate consumer who receives that product. This principle has since then evolved and gone on to serve new purposes. This case went up to the House of Lords and they agreed that the defendant owed the plaintiff a duty of care. The factors of whether there was a breach of that duty and whether damage occurred were not brought up in this case because the defendants feared the bad publicity that the case had brought and decided to settle it with the plaintiff outside the court. The court decided that there were three main ingredients to the tort of negligence: The defendant must owe a duty of care to the plaintiff there must be a breach of that duty, and the breach must result in damage. Breach of duty to take care Thus the first thing that the cricket club ought to ask itself was whether the Brunel owed it a duty of care. From there the cricket club must establish whether Brunel breached the duty of care. This comes about where the defendant failed to take reasonable care. Reasonableness may vary with circumstances e.g. if someone is handling a box of sweets, the reasonable care required may be much less than that which is required while handling a box of explosives. The case of Blyth vs. Birmingham Waterworks Co. further expounded on this Alderson B. in this case described negligence as “omission to do something which a reasonable man, guided upon those considerations which generally or ordinarily regulate human affairs will do, or doing something which a reasonable man would not do.” He described a reasonable man by saying that he is “an ordinary man sitting on the top of a Clapman Omnibus. He is not as wise as Solomon or as strong as Hercules or as clever as Ulysses. He is not over- confident or over-apprehensive.” If the reasonable man could foresee the effect of his negligence, then there is liability in negligence. The test of foresight however has been seen to have subjective elements. In Glasgow Corporation vs. Muir the manageress of the defendant’s tearooms allowed a church party to use the tearooms when rain prevented them from eating their food outside. As they carried the food into the tearooms, it happened that the two people who were carrying an urn of tea in a narrow passage somehow let the urn fall down and as a result, two children were scalded. The children sued the defendant for negligence in allowing the two people to carry the urn in a narrow passage. Lord McMillan devised a test for reasonability. He said, “The standard or foresight of the reasonable man is in one sense an impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question. The reasonable man is presumed to be free from both over-apprehension and over-confidence.” In this case, it was held that the defendant’s manageress wasn’t negligent in allowing the church party to eat their food in the tearooms because she couldn’t have foreseen that such an accident could occur. The test applied was foresight of a reasonable man. Professional negligence is different from ordinary negligence. If a doctor is sued in negligence, he isn’t sued according to what an ordinary reasonable man would do but what an ordinary reasonable doctor i.e. a reasonable man in the same profession would do. In such a case, he provides witnesses (the plaintiff does the same) who profess the same profession as him and the question to them is whether they would have done the same thing he did if they were in his position. In Bolam vs. Frierm Hospital, Lord McNair J. provided a test to apply in cases of professional negligence and it was named the Bolam test. He said, “When you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of the Clapman Omnibus because he hasn’t got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. And the defendant isn’t guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable recognizable body or professional men as skilled in that particular line.” Reasonable foresight of a reasonable man Roe vs. Ministry of Health (1950) has expounded this principle (Winfield, 1979.pg. 330). In 1947, the plaintiff went to the hospital for a minor operation. As a result of the anesthesia being contaminated, he was paralyzed. The ampoule/ syringe of the anesthesia had been kept in phenol solution but had somehow cracked, letting in the phenol solution, which contaminated the anesthesia. The plaintiff sued the doctor for negligence and argued that the doctor should have known that a cracked syringe would let phenol solution seep in and contaminate the contents and that if the doctor had colored the phenol solution, he would have easily noticed that the solution had seeped in. This was in fact what the Ministry of Health did in 1954: they declared that all phenol solution used to store syringes should be colored. Lord Denning said “You can’t look at the events of 1947 with the specs of 1954.” The defendant was therefore not found liable. Magnitude of risk Likelihood of injury: If it is higher, more care is required as was Bolton vs. Stone Standing on the road close to a cricket ground as a game was in progress. The batsman hit the cricket ball for six and the ball hit the plaintiff. The plaintiff sued the grounds owners for negligence in not building a high enough fence to prevent people outside from being hit. The fence around the ground was seven feet high and there was a slope going down from where the fence was to where the ground of the cricket pitch was such that the top of the fence was 17 feet high from the grounds of the pitch. The ball had gone over the fence only 6 times before. The court held that the defendants were not liable because 6 times was not often enough to say that a chance of injury by a cricket ball is likely. Seriousness of injury: Where the harm is likely if the risk is materialized, the defendant must take a higher care as was discussed in Paris vs. Stephaney Borough Council. In this case the plaintiff was one-eyed and was employed by the defendants on a welding job that involved risk to the eye. The defendants failed to provide the defendant with goggles. A spark somehow entered the defendant’s eye and he became completely blind. He sued the defendants for negligence. The court found the defendants liable because they didn’t take even the basic care to prevent his injury (provide him with goggles) and they knew that the harm was more likely in his case. Withers vs. Perry Charm Co, The plaintiff was particularly susceptible to Dermatitis. The defendants employed her and gave her the grease-freest job so as to reduce the chance of contracting Dermatitis. Despite this, she still contracted Dermatitis and she sued the defendant for negligence. In court, it was held that the defendants hadn’t been negligent because they had done all that they could to avoid the plaintiff’s injury. Utility of the defendant’s activities If the activity is important for public use, this will be considered in court (Harpwood 2000. pp. 217-218). In Watt vs. HertfordShire County Council, The plaintiff was a fireman, a woman was trapped under a heavy lorry and the plaintiff’s fire brigade was called to save her life. The proper fire equipment was not available and thus the plaintiff was injured when the vehicle suddenly stopped. The plaintiff sued. The court held that the utility of the defendant’s activity overrode the breach of the duty. The defendant had to save a life and thus the negligent act was justified. Practicality of precautions Letimar vs. AEC Ltd, the floor of the defendant’s factory was flooded by exceptionally heavy rainfall. One consequence of the flood was that the oil that the defendant normally kept in the troughs was washed out onto the floor. The defendant put sawdust on the floor to prevent the employees from falling. The sawdust was however not enough to cover the whole floor and the plaintiff fell and broke his ankle. He sued the defendant for negligence. It was held that the defendant wasn’t liable for the plaintiff’s injury because they had done all that they could do to prevent the accident except close the factory down, which wouldn’t have been in the employee’s best interest. Common practice The defendant’s conformity to common practice is good evidence that the defendant has not been negligent. It is however not a conclusive evidence. Brown vs. Rolls Royce & Co. Ltd, common practice was expounded. In this case, the plaintiff contracted Dermatitis while working in the defendant’s factory although the defendant had provided sufficient washing facilities for the employees. They however didn’t provide a barrier cream to prevent the Dermatitis. Providing of the barrier cream was a common practice among the factories at the time. The question in the court was whether the plaintiff wouldn’t have contracted Dermatitis had the barrier cream been provided. The evidence in the case was conflicting and this question was unable to be answered. The plaintiffs were therefore not held liable. Conclusion Thus having considered the tort of negligence and its ingredients we can conclude that the cricket club could sue Brunel under the tort of negligence. First Brunel owed the cricket club a duty of care. Brunel breached the duty of care as he did not offer services reasonably expected from a man of his competence. Lastly the cricket club suffered damages as a result of breach of that duty. Bibliography Keenan, D., and Smith, K., (2007) Smith and Keenan's English law Edt15 United Kingdom. Longman publishers.Pg 265 Lunney M., and Oliphant K., (2005). Tort Law. Edt3. Oxford. Oxford University Press.Pg 326 Harpwood V., ( 2009). Modern Tort Law. Edt7 New York. Taylor & Francis. PP. 217- 218 Winfield H., and Jolowicz A., (1979)Winfield and Jolowicz on tort. Edt11. United Kingdom. Sweet & Maxwell. Pg 330 . Read More