How a Failure to Take Action May Result in a Claim of Negligence - Essay Example

? Law 2105 TORT LLB Circumstances in which a failure to take action may result in a claim in negligence Introduction A tort refersto a civil wrong, one that a remedy, in terms of compensation, is usually available to the person who has been wronged in a civil court1. Usually, there are duties owed to people in different circumstances, and for wrongful or negligent actions, there is liability imposed by law. The key function of the Law of Torts is to offer remedies to those claimants who have suffered loss, infringements of rights or harm, which may include physical injury to property or persons, damage to financial interests and reputations of persons, and interference with a person’s enjoyment and use of their property such as land. It should be noted that, it does not necessarily mean that suffering a loss, such as the one’s mentioned above, will warrant a remedy from the law. This is because; the Law of Tort requires that a claimant must be able to show that the tort caused them a loss and that the person who is committing the tort owed them a duty of care2. Therefore, the Law of Tort is concerned mostly with involuntary responsibilities that the law imposes on persons. There are various torts including tort of negligence and that of nuisance. However, this paper will focus on the tort of negligence, which is a tort that covers various situations in which a person is considered to have, negligently, caused harm or damage to others. By studying the case of Smith v Littlewoods Organization Ltd [1987] 1 All ER 710 and that Donoghue v Stevenson [1932] AC 562, with special attention on relevant case laws, this paper will attempt to critically analyze and study the circumstances under which a failure to take action may result in a claim, in negligence. Discussion The Tort of Negligence is a very significant tort in law that takes care of various cases, in which persons cause harm or damage to others that result in loss. For a claim to succeed in an action of negligence or a failure to act to result in an action of negligence, there are certain elements that a claimant must establish3. The claimant must prove that there was a breach duty of care by the defendant, the defendant owed a duty of care to the claimant and that the breach of that duty of care, resulted in a reasonably foreseeable loss or damage. Therefore, people are not just responsible for loss, damage or harm that they cause intentionally, bust are also responsible for their failure to act reasonably as they would be expected to-this is what is referred to as negligence-and it will result in negligence4. Simply, the tort of negligence expects that people ensure that their actions do not result in harm to others. For a failure to take action result in a claim of negligence, a duty of care must be owed to the claimant by the defendant as it was in the Donoghue v Stevenson [1932] AC 562 case, in which the judge, in his determination, argued that every person owed, his or her neighbor-someone with whom it is foreseen that, ones omissions or actions would injure-a duty of care5. It is imperative that every person takes reasonable care so as to avoid omissions or acts that can foreseeably result in reasonable injury to another. This was referred to as the ‘neighbor principle,’ which was coined by Lord Atkins6. Unless duty of care for another has been already duly established, such as the duty owed to employees by their employers or manufacturers to the consumers, then, failure to take action cannot result in a claim of negligence. However, there have been problems of establishing the existence of owed a duty of care as was with the case of Caparo Industries v Dickman (1990). This resulted in the need for development of a tool, coined by the House of Lords, referred to as the three-stage test. This test helps in determining the existence of duty of care-which is a requirement for a failure to act to be deemed a claim of negligence-based the nature of the loss, relationship between the defendant of whom the duty of care is being imposed, and reasonability, just and fairness for the law to impose a duty on the defendant7. A duty of care must exist for a failure to take action result in a claim of negligence. However, there is a question raised of whether there exists a duty of care for a failure to act by a given person that results in loss or damage to a third person, and whether that as well can result in a claim of negligence8. It is a general rule that a person has no duty of care in controlling the actions of another person so as to prevent harm or damage to a third person. This general, however, according to the ruling in Home Office v Dorset Yacht Co (1970), can be overturned since duty of care for a person on a third person can be established as long as it can be established that the damage, loss or harm caused was reasonably foreseeable9. Failure to take action can result in a claim of negligence in the event that duty of care can be established on the basis of the relationship of proximity-legal, physically, and length of time between the occurrence of events- between the defendant and claimant10. Additionally, existence of proximity between the defendant and claimant and loss or damage being reasonably foreseeable may not be sufficiently enough to establish the existence of a duty of care in the event of failure to act to warrant a claim in negligence if the court can discern that it is not reasonable, just or fair to impose care of duty on the defendant. Therefore, failure to act can result in a claim of negligence when a person owes a duty of care, if he has undertaken to perform a given duty to a person or if a given duty has been imposed on him or her11. Failure to act might not result in a claim, in negligence in the case where there is no prior legal authority for a person to carry out a given duty or in the event that the claimant fails to satisfy the three-stage test, and when a defendant has a disclaimer responsible with regard to a said action. In the case of Hedley Byrne & Co Ltd v Heller (1964), the bank had a disclaimer that prevented the court from imposing the duty of care, and as such making it not liable for their negligent reference12. However, the disclaimer must be reasonable and comply with the statute of The Unfair Contract Act, 1977. This act stipulates that; liability for a loss or damage can only be excluded if it was reasonable as was in the case of Smith v Eric Bush (1989)13. Conclusion It is clear that, failure to act can result in a claim in negligence on in the circumstances under, which the claimant can prove that the defendant had legal authority to perform a task in question. This implies that, a claimant must prove to the satisfaction of a court that there was the duty of care either through legal authority or by satisfying the requirements of the three-stage test. The act of duty established must have also been breached by the defendant and that that breach had resulted in loss or damage. (1250 Words) Bibliography Charlesworth, J., R. A. Percy, and C. T. Walton, Charlesworth & Percy on Negligence (11th edn, Sweet & Maxwell 2006), 3. Clerk, John Frederic, William Harry, Barber Lindsell, and Anthony M. Dugdale, Clerk & Lindsell on torts: 4th supplement to the nineteenth edition (Michael A. Jones (ed), 19th edn, Sweet & Maxwell 2009), 383. Donoghue v Stevenson [1932] AC 562 Handford, Peter, ‘Intentional Negligence: A Contradiction in Terms?’ (2010) 32 The Sydney Law Review. Horsey, K., and E. Rackley, Tort Law (2nd edn, Oxford University Press 2011). Jones, Lucy, ‘The Tort of Negligence’ in Introduction to Business Law (Oxford University Press 2011), 339. Jones, M. A., Textbook on Torts (8th edn, Oxford University Press 2002), 32. Kidner, Richard, Casebook on Torts (12th edn, Oxford University Press 2012). Rogers, W. V. H., Percy Henry Winfield, and J. A. Jolowicz, Winfield and Jolowicz on Tort (18th edn, Sweet & Maxwell 2010), 150. Rose, Francis, ‘Blackstone’s Statutes on Contract, Tort & Restitution 2012-2013 - Blackstone's Statute Series’ (Oxford University Press 2012). Smith v Littlewoods Organization Ltd [1987] 1 All ER 710 Strong, S.I., and Liz Williams, Complete Tort Law: Text, Cases, & Materials (2nd edn, Oxford University Press 2011). Varone, J. Curtis, Legal Considerations for Fire and Emergency Services (2nd edn, Cengage Learning 2011). Read More