What Problems Does the Jury Face When Science Enters the Courtroom - Essay Example

?Negligence, strict liability, common law and UAE Civil Transactions Law Introduction In case of pre-existing relationship, liability arises out of obligation through promise and this is the binding basis of law in respect of contractual liabilities. For tortious liability, there is generally no prior relationship but duty is supposed to exist that becomes a unifying concept in torts. As early as in 1768, in Buller’s Nisi Prius trials, it was observed that that every person owed a duty of care towards his neighbour in that every person must take reasonable care not to injure his neighbour. It therefore follows that when a person is injured due to default of another though not wilful, he is entitled to compensation for the injury sustained through negligence or folly of another. Although this notion of liability was not quickly recognised, by the early nineteenth century, it came to be recognised that one could claim damages for negligent or wilful conduct of another contrary to law as held in Ansell v Waterhouse 1. Historical development But this was confined to a few well recognised factual situations wherein a duty had been assumed to exist. Complications arose when defendant acted in pursuance of contractual obligation. Hence, by early nineteenth century, a party to a contract could sue another party for breach of tortious duty mandated by law. Thus, it began to be recognised that a stranger to a contract could sue for damages or injury caused due to negligent conduct in the execution of a contract. For example, pedestrian being injured due to negligence of coachman. Duty existing between manufacturers, suppliers and consumers who are bound by a chain of contracts also came to be recognised in due course. Originally plaintiff could only claim under his contract and was barred to claim under contract he was not a party to. This meant that each of the party had to protect its own rights through separate warranties under their respective contracts. Early cases have dealt with manufacturers’/suppliers’ liability for defective goods or equipment supplied. It was often questioned whether a plaintiff not being a party to the initial contract of sale or supply could claim the warranty benefit promised by the manufacturer or suppler2. Negligence In Winterbottom v Wright3, question arose whether the plaintiff could claim for injury sustained by him due to the defendant’s negligent driving of the coach the former had hired under a contract with the Post Master General. Three judges gave opinions favouring the defendant holding that there was no privity of contract between the plaintiff and the defendant as otherwise there would be endless stream of claims coming from strangers. It is argued that the stand taken by the three judges is at odds given that a pedestrian could claim from the defendant for any injury sustained by him due to negligent driving of the defendant coachman. Therefore, negligence claims have to satisfy the following the criteria. 1. The defendant must owe a duty of care towards the claimant (plaintiff). 2. That duty has been breached by the defendant. 3. The breach of the defendant has resulted in loss or damage to the claimant. 4. The loss sustained through defendant‘s negligence is not too remote or is within the scope his duty.4 Three-stage test In order to avoid frivolous claims, a three stage test was prescribed by the House of Lords in Caparo v Dickman 5 by effectively recasting the neighbourhood principle originally enunciated by Lord Atkin in Donoghue v Stevenson6, the three stage-test being 1) foreseeability of harm or loss, 2) sufficiency of proximity of relationship between the parties to the dispute, and 3) justness, fairness and reasonableness of imposing duty on the defendant/injurer in all circumstances. Thus, in Caparo, the auditors Dickman were held not liable to the claimant Caparo for their misstatement in the audited accounts of profits as ? 1. 3 m instead of an actual loss of ? 465,000 relating to Fidelity Plc. The House of Lords reasoned that auditors had no duty of care towards public at large or even to the individual shareholders since the purpose of statutory audit was to have control over the company and not for using the information for share dealings which the Caparo did in their bid to take over Fidelity Plc. An added requirement is that courts must consider Human Rights Act 1988 according to which public bodies must comply with the provisions of European Convention on Human Rights. Thus, in Z v United Kingdom7, the ECHR held that that the State violated the convention as its local authority failed to act promptly in the case care to be provided to children. Pure omission and pure economic loss However, there is requirement in English law or common law that failure to exercise duty of care even if another person suffers because of the failure in certain circumstances, there can be no action for damages. Thus, a person has no duty of care to save or attempt to save a person from drowning in a pool unless that person has been specially appointed for that purpose. Similarly, a passer-by has no duty of care to restrain a child on the road from running in front of an oncoming car. This is because for “pure omission”, there is no liability. Similarly, pure economic loss cannot be recovered under the tort of negligence except in limited circumstances such as in contracts providing for damages for pure economic loss incurred.8 Strict liability Prior to law that came to be applied for liability due to negligence, there was no negligence requirement for holding one liable as a rule of strict liability regardless of negligence in contractual disputes relating to defective goods or damage caused by the goods. However, twentieth century witnessed the revival of strict liability principle. As an alternative to the rule of negligence, in strict liability rule courts are not required to measure any level of duty of care since the injurer/defendant has to bear costs of accident regardless of care/precaution taken by him. This has been prescribed with a view to achieve socially optimal level of care to be assumed by the likely injurer Though rule of negligence is also expected to achieve the same level of care, there are a few differences. That is, in strict liability, the injurer shall bear total costs of damages whereas under negligence rule, the defendant victim has to bear accidental costs if the injurer has exercised necessary care. It is argued that strict liability has the potential of causing higher number of claims than in the case of negligence as the victim in the former case has the incentive to prefer claim if the damages sustained exceed the costs of making the claim. In the latter case, the injurer can avoid liability by proving that he has not breached the legal standard of care expected of him. There are advantages of strict liability since it will reduce number of cases going to trial that entail additional costs through settlement between parties.9 Strict liability principle is justified due to the reason that manufacturers responsible for product liability can allocate costs of likely claims by internalizing the costs of accidental loss and distributing it among the consumers who are the purchasers of their products. Yet another justification is that imposition of strict liability promotes better product safety than through traditional rule of negligence. Prevention of or planning for future liability by the manufacturer is the ultimate goal of strict liability. Thirdly, sophisticated modern technology makes it difficult or impossible for the sufferer to pinpoint the act of negligent on the part of the manufacturer. However, there are two defences available to a defendant. One, lack of proximity cause and two, assumed risk should be exempted from recovery.10 An Act of Parliament may also impose duty on the employer to ensure his employees wear helmets while on duty. Any injury caused to employees due to failure to wear helmets even if the employer had taken all possible steps to make the employee wear helmets, can make the employer liable as a rule of strict liability.11 Thus, strict liability can be invoked under three circumstances viz 1) in general a defendant is liable without any fault or irrespective of fault, 2) in abnormally dangerous activities the actor engaging in such activities is strictly liable for injuries caused to third parties and 3) statutory strict liability.12 However, it is argued that there is no absolute liability as such as there are escape provisions in the legislations such as Consumer Protection Act 1987 and exceptions under common law viz Rylands v Fletcher 13, 14. UAE law In UAE, civil law systems and statutes are the primary sources of law without any effect of the doctrine of binding precedent and lower courts are not bound by the decisions of higher courts to be followed in their future decisions. Every case will be decided on its own merits and facts of the case, though the past decisions of the higher courts in similar cases may serve as useful guides to arrive their current decisions. Period of limitation applies as set out in UAE Federal Law No 5 1985 known as Civil Transactions Law (Civil Code). According to it, a claim is barred after fifteen year except as may be specifically exempted. The Civil Code is exhaustive with as many as 1,528 articles although time-bar has been provided in UAE Federal Law No 18 of 1993 known as Law of Commercial Procedure (Commercial Code) applicable to commercial transactions. 15. The Civil Transactions Law also includes “blood-money assessment law, personal obligation and rights, genuine rights in rem and in rem endorsements” 16 In UAE, it is a well settled law that all sale transactions involving goods are warranted as free from any defects or damages. It provides for waiver if the parties so agree to it even before it comes to the knowledge of the party who can claim. The warranty granted to the buyer can extend to the any consumer whom the buyer has sold or distributed the product. If the buyer invokes the warranty, he can either claim back the value paid by returning the goods or keep the defective good without any right to claim difference in price. However, code 545 of the UAE Civil Codes provides that a seller need not provide a warranty against a defect if he has disclosed the defect to buyer before sale, the buyer has accepted the defective goods with prior knowledge of the defect or agrees to it at a later stage, the seller and buyer agree to a waiver of the defect or sale was made in a public auction. UAE trot law provides that every person is responsible for his act or omission. For any goods or machinery in his possession, he is responsible for any damage caused by it. Any claim in tort cannot be limited to the terms and conditions in a contract and a claim for tort in exceptional circumstances cannot be subject to limitation applicable to warranties under the code. In fact, if the claim is under a tortious action, it may fall outside the limitation in which case the supplier, employee or sub-contractor will be held liable if they have committed tort, regardless of the limitation. Although an affected party can only claim under contractual terms, UAE courts have on allowed damages and remedies to claimants under tort rather than under contractual relationship. It is based on the principle that an act or omission under a contract constitutes a tort.17 Conclusion It becomes clear from the above discussion that the UAE law is more favorable to genuine claimants regardless of limitation period or contracting against, thus in harmony with common law guided by the principles of natural justice and the UAE Civil Transactions Code includes codification of common law principles relating negligence and strict liability. References Cases Ansell v Waterhouse (1817) 6 M & S 385). Caparo Industries Plc v Dickman (1990) 1 All ER 568 Donoghue v Stevenson [1932] AC 562. Rylands v Fletcher. In Rylands v Fletcher (1868) LR 3 HL 330 Z v United Kingdom (29392/95) [2001] 2 F.L.R. 612 Winterbottom v Wright (1842) 10 M & W 109 Books Edwards Linda L., Edwards J. Stanley, Wells Patricia Kirtley Tort Law (Cengage Learning, 2011) 327-328,341 Faure, Michael Tort Law and Economics (Edward Elgar Publishing, 2009) 10 Kurer, Martin Warranties and Disclaimers: Limitations of Liability in Consumer-Related Transactions (Kluwer Law International, 2002) p 560 Lunney Mark, Oliphant Ken, Tort Law Text and Materials (3rd ed Oxford University Press, 2007) 106-107 Steele Jenny . Tort Law: Text, Cases and Materials (Oxford University Press, 2007) 110 Websites An Overview Of The Law Of Tort, Chapter 1 p 11 accessed 16 February 2013. Chapter 11 The Tort of Negligence - Oxford University Press accessed 16 February 2013. Federal Laws, Institute of Training and Judicial Studies accessed 16 February 2013. Key Concept 2: Understanding the Differences Between 1) Intentional Tort Liability. (2) Negligence Liability, and 3) Strict Liability < http://www.csun.edu/~bz51361/gateway/torts.pdf> p 5, accessed 16 February 2013. Part 1, General Principles of Tort Law p 4, accessed 16 February 2013. United Arab Emirates, Country Q & A, Dispute Resolution 2009/10 < http://www.legal500.com/assets/images/stories/firmdevs/disputeresolution.pdf > 1-2, accessed 16 February 2013. Read More