Tort Law and Elements of a Tort Case - Essay Example

?Tort law Introduction A tort suit is unlike a criminal case, which is instigated and subsequently managed by the it is prosecuted and subsequently managed by the victim or the family of the victim. When such a suit is successful, the results are not in the form of sentencing but rather in a judgment of liability1. This mode of judgment usually entails the plaintiff being compensated financially by the defendant. Simply put, the plaintiff is given the opportunity to transfer the financial burden that has come as a result of the injury, to the defendant. However, in some instances the defendant may be awarded more than the amount due as compensatory relief. This additional amount is known as punitive damages. Similarly, there may be situations whereby the plaintiff may file an injunction which prevents the defendant from injuring him or her or from invading one of his or her property. Tort laws are laws instituted to offer compensation to persons who have been harmed due to the irrational actions of a second or third party. The claims in tort generally involve state law, and are based on the postulation that individuals are at all times liable for their own actions, if it either directly or indirectly results in the injury of others. Tort law constitutes a branch of private law that is also characterized by contract law, property law and restitution. A tort law has a distinctive capability of transferring the problems of a victim plaintiff, to another person, the defendant2. In the tort law, the duty of care is that legal obligation that is imposed upon a person requiring that the individual stick to the standard of reasonable care in course of executing any acts that can foreseeable harm other individuals. In order to establish whether there was an act of negligence in this case or not, there is need to first consider if the Healthy Organics Ltd, Maahir, Harry, the paramedics, Fred as well as the Surgeon who used a \ new non-invasive technique who can be regarded as defendants in this case, owed the plaintiffs (the affected individuals) a duty of care. In other words, are the five reasonably responsible for the injuries sustained by Syed, Maisy, Tom, Gerry, and Robert? As it is in this case, it is certain that there was a duty of care that is imposed by law that the defendants in this case breached and as provided by law such individuals are subject to liability. Exploration The article under analysis comprises of a number of cases that lie within the context of tort. The first is a scenario whereby a tort suit is applicable is in the case against Maahir, who is in possession of work man tools that aid him in effectively undertaking his work. As such, he is tasked with the obligation of ensuring the tools he uses are kept away safely, lest they inflict injury on any second or third party. Regrettably this is what unerringly materialized. Via a series of events made probable by laxity on the part of Maahir, Syed, an innocent child, is hurt. Explicitly, this set-up is characterized by elements of strict liability. Strict liability entails the plaintiff ascertaining, beyond a doubt, the defendant had an obligation to guarantee something was kept safe. Subsequently, the defendant failed to perform this duty, thus, leading to injury of the plaintiff. In this case, there was foreseeability as the random and careless placing of tools in an environment characterized by children was bound to eventuate in injury. In this occasion, Maahir had a liability on the injury sustained by Syed. When this case is looked into closely, there exists negligence on the part of Maahir. However, Syed must prove that he was a primary victim of negligence. In the ruling Alcock v Chief Constable of South Yorkshire3, it was ruled that primary victims only have to prove that the injury was foreseeable. Furthermore, there is no need to establish that psychiatric injury was indeed foreseeable4. As such, under this criterion then Maahir is liable for the injury sustained by Syed. The viability of this suit is further justified since it can operate within the confines of reason. Fred, the child who caused the accident to transpire has no liability in the suit. This stems from the fact that, in his regard the accident was not foreseeable. It could not have been foreseen that his hitting the chisel would have led to the breakage of the tool. However, Maahir may also structure his defense so as to negate liability accruing from the injury. He can argue that since it was the sole responsibility of Harry to look after the children, then he should not be subjected to any liability. In the ruling Anns v Merton London Borough Council5, Lord Wilberforce initiated the use of the two stage test6. The first stage is to determine whether the loss or injury was reasonably foreseeable and a relationship of proximity was evident. The second test entails the defendant forwarding policy considerations with the aim of negating responsibility. Thus, at this juncture, Syed, via his solicitors, can use the ruling of Caparo Industries Plc v Dickman7. Whereby the plaintiff must undertake the Caparo test and establish that; one, the injury was reasonably foreseeable, two, the relation of proximity does indeed exist and lastly that imposing a duty of care is fair, just and reasonable within the confines of the law8. Following the collapse of the tent and subsequently the knocking over of the urn, Healthy Organics Ltd, stand to be liable for any injury that occurred as a result of the immediate series of events. Once the tent collapsed, Healthy Organics Ltd were liable for any harm arising from this eventuality. However, in their defense they can argue that the occurrence of injury, which was as a direct effect of the rain was not foreseeable. Hence if there incident was not foreseeable, then no proximity exists. Thus there is no evidence of any form of gross negligence that would warrant the filing of a tort suit against the firm. It is within reason the firm be held accountable for what transpired in its own sponsored event. However, since there is no evidence of negligence then there is no ground for a suit of tort. In the ruling of Blyth v Birmingham Waterworks9, the court ruled that negligence can only be debated, if and only if, there is evidence of omission to do something. Additionally, the court determined that the expected quality or outcome should not necessarily be in tandem with perfection but be within the confines of reasonableness10. As a result of the injuries sustained by Maisy arising from the events at the tent, the emergency team failed to effectively perform its mandated tasks. The plaintiff is in a position to argue that, if the emergency team had arrived at the scene of the accident in time, then conceivably the injuries sustained by Maisy would have been treated in time. As such, the emergency team is liable for a tort suit. There is foreseeability as the lateness of the ambulance worsened the state of the injured child. Within the context of reason, those charged with managing the health of a person must always be well prepared. This was, however, not the case in this scenario. In the case of Wiszniewski vs Central Manchester Health authority11, the defendant was a mid wife employed by the health authority, and was accused of negligently failing to reveal cardiograph indicating that there were complications, which eventually resulted in the child being born with cerebral palsy12. It was argued that if the mid wife had revealed the cardiograph to the doctor, then the ailment characterizing the child would have been treated before it was too late. Nevertheless, the concerned doctor should have also requested for the cardiograph. As such, due to the negligence of the responding team, the court awarded the plaintiff compensation from the tort suit. Hence, just as this 1988 ruling, the responding emergency team is liable, since they should have ensured that their vehicle was in perfect condition to suit it mandated tasks. Also liable is the health institution that allowed their ambulance to operate in a wanting state. However, this situation is dire as the financial obligations, which the concerned health institution is facing, are of a significant amount. This stems from the fact that Maisy requires expensive reconstructive surgery and long term care. The situation that Miasy is undergoing is one known as that of negligence. Through analysis of Maisy’s situation, one can note she passes the Ann’s test. Ann’s test was fashioned in the ruling on the Anns vs Mertin LBC [1978], which stated that if there is reasonable foreseeability of any form of harm to a plaintiff, then liability exists. However, the liability shall be over ruled if the defense provides good reason, with backings from policies, then liability to the defendant may be waved. The situation of pure economic loss that faces Maisy will be sufficient grounds to compel the health institution, defendant, to cater for all her financial needs. This is further cemented by the mere fact that, owing to the inefficiency of the response team, she lost her main source of livelihood in her father Tom. As such, the health institution must now cover her financial obligations as Tom would have done if he were alive. The injuries that occurred were foreseeable and thus the defendant must compensate the plaintiff for its negligent mannerism. Additionally, proximity is established plus the case lies within reason that the health institution assumes the financial role of her father. The medical profession is characterized by a barrage of civil suits filed against them due to perceived underperformance on their part. As such, the legal profession must be very wary of the rulings it hands over in court cases pertaining the field of health. Syed is now suffering from paralysis as a result of under performance by the surgical team. However, it is not conclusive as to whether the new non-invasive technique should have been the norm of dealing which such a case as exhibited by Syed. In the case of Bolitho v City and Hackney Health Authority13, the complainant suffered severe brain damage that accrued from a respiratory ailment the defendant was supposed to treat. In this situation, the court decided to rule in favor of the defendant. This stems from the fact that a body of medical knowledge was in support of his methods and actions during the entirety of the procedure14. As such, it proves that only is special cases will the judge decide to act in complete disregard of the opinions of otherwise competent professionals. Citing this case justifies that the family of Syed have no grounds to win the tort suit as there is no evidence of gross negligence on the part of the surgeon and his or her team. This sad eventuality could not have been foresees. As such, it has no proximity and thus the surgeon is not liable for the state of his patient. Though it is sad to see the future of a promising young man end abruptly but the family does not have ground for the tort suit. This new revelation on the restraint that should have been exercised on Fred provides the opportunity of financial reprieve to Syed and his family. This is because negligence can now be illustrated on the part of Harry. If Harry is found to have acted negligent, then St. Jane’s Care Home will have to offer compensation to Syed. When Harry carelessly ignored to thoroughly check the records of each student, he was guilty of negligence. The probability that this minor action of overlooking the details would have led to such an injury was very little. However, since Harry was dealing with children he should have exercised more caution which he did not. Since his occupation meant he had to deal with children on a daily basis, he should have been more keen in monitoring them rather than leave them at the hands of inexperienced individuals. In the case of Paris v Stepney BC15, the plaintiff started working at the at the defendant’s business premises as a garage mechanic16. When the plaintiff initially started working as a mechanic he had only one eye. While attempting to loosen a bolt, he struck it using a hammer. Consequently, a piece of metal broke off and entered his good eye thus causing him to become permanently blind. The court stated that because of his condition, his employer should have taken extra care by ensuring he had protective gear. As such, the court’s rulings were in favor of the plaintiff. Thus, just as this case, Syed has ground to sue for tort. Harry cannot easily justify his actions as he absconded on his mandated task which resulted in injury of a child, who should have been under his care. The plaintiff may argue that if Harry was monitoring the children then most probably the injury would not have occurred. The plaintiff can also propel the notion that once Harry left the children, injury was then foreseeable and subsequently there was proximity. For a third party plaintiff to win the tort suit, then the concerned individual must show that there is proximity with the primary plaintiff. In Gerry’s case there is no element of proximity. As such, she has no legal ground for her to position her case. The primary victim of the tent disaster is the only one that the company is liable to. It has been noted that there cannot be any element of proximity if foreseeability is nonexistent. In Gerry’s case, there was no foreseeability on her being traumatized and consequently becoming incapacitated to seek gainful employment. Conclusion The last case defies most of the elements of a suitable tort case. First, Robert was already suffering from severe depression; this immediately raises uncertainty into the case. It is uncertain and highly probable that Robert did not disclose this information about his condition to his employer. As such, since the employer was completely oblivious of his depression then any eventuality emanating either in part or in full as a consequence of his condition is not under the liability of the employer. This leads to the second assertion. Since Robert’s condition is assumed not to have been known then his suicide could not have been foreseen. This proves that the since foreseeability was not present then the element of proximity is also non-existent. The company that hired Robert is not liable in any way for the financial needs of his great aunt Julie. This case has no reasonability as his suicide took place a couple of months after the tragic incident. References Alcock v Chief Constable of South Yorkshire [1992]1 AC 310 (HL) Anns v Merton London Borough Council [1978] A.C. 728 (HL) Blyth v Birmingham Waterworks Company [1856] 11 Ex Ch 781 Bolitho v. City and Hackney Health Authority [1997] 4 All ER 771 Caparo Industries Plc v Dickman [1990]1 All ER 568 (HL) Deakin S. F. and Angus Charles Johnston and B. S. Markesinis,Tort Law(Oxford: Clarendon Press, 2008) J. Stanley Edwards and Patricia Kirtley Wells and Linda L. Edwards,Tort Law (Clifton Park, NY: Delmar Cengage Learning, 2012) Catherine Elliott and Frances Quinn,Tort Law(Harlow: Longman, 2001) Chris Turner, Tort Law (London: Hodder Arnold, 2006) EmilyFinch, Tort Law(Harlow, England: Pearson Education, 2007) MarkGeistfeld, Tort Law (Austin: Wolters Kluwer Law & Business, 2008) SueHodge, Tort Law (Cullompton: Willan, 2002) Paris v Stepney Borough Council [1950] UKHL 3 Pierre Larouche and Jeremy Lever and Walter van Gervenm,Tort Law (Oxford [u.a.]: Hart Publ, 2000) Nicholas J.McBride and Roderick Bagshaw, Tort Law, (Harlow, England: Pearson/Longman, 2005) Wisniewski -v- Central Manchester Health Authority [1997] PIQR 324 Read More