The Role of the Concept of Duty of Care in Defining Tort Damages - Essay Example

? An Examination of the Role of the concept of Duty of Care in defining Tort Damages Introduction Tort is a branch of civil law that deals with differences between individuals. Winfield states that “tortious liability arises from the breach of a duty primarily fixed by law; such duty is towards persons generally and its breach is redressible by an action for unliquidated damages”1. A simpler definition states that tort is “a wrong which entitles the injured party to claim compensation from the wrongdoer”2. Reconciling the two definitions of tort, it is clear that it relates to a situation where one fails to do something in relation to another person, hence causing some injury. This means that tort is about a duty of care which one owed to another but failed to discharge accordingly. This is widely described in most books as negligence. This paper would examine the concept of negligence and how it affects the development of the concept of duty of care in order to ensure the fair treatment of both claimant and defendant in court cases. Concept of Neighbour In the landmark case of Donoghue V Stevenson3, the neighbourhood principle was developed. In the case, Mrs.Donoghue bought a bottle of ginger beer which was manufactured by Mr. Stevenson. After drinking it, she found that there was a snail in the bottle. Mrs. Donoghue fell ill and she sued Mr. Stevenson. The House of Lords sat on the case and held that Mr. Stevenson, being the manufacturer of the drink owed Mrs. Donoghue a duty of care. This is because it was reasonably foreseeable that failure to ensure product safety would cause another person to suffer and go through undue hardship. On the basis of this case, the concept of neighbourhood was established. Lord Atkins stated that in every action and inaction, a person must examine its implications and potentials of harming another individual who might be affected by them. Based on this, the concept of who a person's neighbour is was defined and established in law. Through the Donoghue V Stevenson case, it is established that a person owes another person a duty of care, once the neighbourhood relationship exists. This sets the parameters for the examination of tort cases. Duty of Care The neighbourhood test in the 1932 case of Donoghue V Stevenson has been modified to the basis of proximity. Proximity establishes that there was a close and sufficient relationship that made a person suffer some kind of injury from the action of another who was close enough to wield a duty of care to avoid that injury. In Caparo V Dickman4, a three fold test was developed to ascertain whether it is fair and just to impose a duty of care on a person for a given action in tort. These are: 1. The harm of the action in question must be reasonably foreseeable as in the case of Donoghue V Stevenson 2. The parties involved in the case must have a close relationship of proximity. 3. The duty of care imposed upon them must be fair, just and reasonable. Breach of Duty Once the three elements of a case are established, the court would need to establish that the duty of care was breached. And this breach is tantamount to negligence. Negligence is the failure to take reasonable care where a duty of care exists in a relationship5. Thus, the breach of a duty of care or negligence gives rise to a tortious liability and it leads to a given legal case. The breach of duty is failure to show a degree of care that a reasonable person ought to show in the same circumstances6. In other words, the breach of a duty of care creates an objective test which allows the court to measure the extent of a given act in tort. This is because, a reasonable person must show a certain level of basic consent for his actions. Without that, the real parameters of a case of tort cannot be defined. Thus, the test for reasonableness is important and fundamental in establishing the extent of negligence and the extent of failure. In Phillips V William Whiteley7 a woman suffered an infection as a result of her ear being pierced by a jeweller. The woman argued that the jeweller did not attain the standard of sterility of a surgeon. However, the jeweller argued that he took reasonable steps to sterilize his instruments as a jeweller and not as a surgeon. The court held that the duty of care was based on reasonableness of the circumstances at hand. And since the jeweller did not present himself as a surgeon, he could not be held to the standard of care expected of a surgeon. So he was not fined for breaching that high standard of care. The standard of reasonableness could be lowered in four main cases: 1. Where the defendant has some kind of physical or mental incapacity. 2. Where the defendant is young. 3. Where the defendant is very old. 4. Where there is a sudden incapacitating illness with no forewarning8 Thus, the concept of the duty of care provide the framework within which a person can be held liable for his actions. In cases where there are limitations, there is the need for some kind of consideration and exceptions to be made. And this include the four pointers above, which can act as a defence for a person accused of failing to meet the standard of care required of him. According to two cases in 1951, the standard of care placed upon a person varies on two grounds. In the first case, the degree of risk that a person's actions causes requires a higher degree of care9. Secondly, the severity of the potential harm of a given action determines the higher the degree of the duty of care placed upon a person in a tort case10. Requirement of Causation In order to place the duty of care on a given individual in a tort claim, there is the need to define the liability for fault in a given case. This is because it helps to define the subject of the tort claim and helps to establish the extent of the claims of the case. In Barnett V Chelsea & Kensington Clinic11 it was established that in defining causation, there is the use of the 'but for' test. This answers the question of whether the injury or damage would have been caused if the defendant had not done what he is accused of doing. The but for test helps in establishing the need for a case and sets the ball rolling for a tort case. Foreseeability and Remoteness One aspect of defining the duty of care of the defendant is the definition of the foreseeability of the damage. Foreseeability is about the degree to which the defendant could ascertain the impact and influence of his actions and inactions. This should guide a defendant in exerting the duty of care expected of him in any situation. In Stewart V West African Air Terminals12, Lord Denning said: ‘It is not necessary that the precise concatenation of circumstances should be envisaged. If the consequence was one which was within the general range which any reasonable person might foresee (and was not of an entirely different kind which no one would anticipate), then it is within the rule that a person who has been guilty of negligence is liable for the consequences.’ This means that the concept of negligence and duty of care imposes an obligation on a person in a situation where he can affect his neighbours to try to anticipate within reasonable limits, what could happen as a result of his acts. If he fails to do so, he can be said to be negligent and the level of charges and damages imposed upon him should be proportionate to the degree of negligence. This means that negligence is defined by the extent to which he was aware of the potential consequence of his actions and how much he neglected the need to mitigate the effects. Also, it is important to note that the concept of duty of care in negligence states that a person can only be held liable for tort if the loss of the situation was reasonably foreseeable and if it was not foreseeable, it can be said to be too remote13 In the Wagon Case (No 1), the privy council sat on the incident of a ship which docked in the Sydney Harbour in 1951. As the ship waited at the harbour, the crew carelessly allowed oil to leak from it. This oil spread to a point where ships were being repaired. The repairers of other ships mistakenly allowed fire to get into contact with the oil that leaked from the original ship. It led to an explosion and destruction of properties. An action in tort against the original ship that the oil leaked from failed. This was simply because the leakage was too remote for the original ship owners to foresee any damage to other ships. Hence, the remoteness became a major factor that prevented action against people who did not have a means of foreseeing the consequences of their action. Recoverability and Damages The duty of care sets the framework for the definition of damages for the actions in a tort suit. In tort cases, personal injury, damage to property and economic loss are all recoverable14. This is because it provides a degree of compensation for the losses or injuries that are suffered in the case. The concept of duty of care and negligence helps in the measurement of these losses. This is because it provides a degree of responsibility that the defendant should have taken. And if it is established that the defendant failed, it is important for the defendant to be made to pay the amount in question. However, from the case of Spartan Steel V Martin15, it was established that recoverable damage is only limited to the injuries that are directly suffered, not pure economic loss. Pure economic loss refers to the failure to attain economic benefits or profits due to a given tort action. This means that the concept of pure economic loss makes it impossible to make claims that have an indeterminate class and an indeterminate category. Claims in tort must always be within the immediate and foreseeable losses that occurred. Others related to other possibilities may be classified as remote and hence, cannot be actionable in its own sense. Conclusion The concept of duty of care had to be developed because different people in the wider society get some kind of connection when they link up to others or when their actions affect others. Due to this, people need to take reasonable steps in protecting the people their actions are likely to affect. The need to care about the effects of one's actions on the wider society culminated in the concept of neighbourhood which forms the foundation of the tort law. This concept is steeped in the fact that people must be sensitive to others and hence, prevent foreseeable injuries and damages to others in their actions. This imposes a duty of care on all people in their actions in the wider society. The concept of duty of care forces people to act according to a high standard of care which would safeguard the rights of other people. It is the failure of people to act according to the required standard of care which gives rise to tort. Thus, the concept of duty of care is the definitive point in the law of tort. It defines whether a person is liable for a tort action or not. The concept of duty of care sets the de minimis for a tort action. The concept of the duty of care defines the extent to which a person was negligent. In other words the concept becomes an objective standard around which different tests like the 'but for' test can be conducted to measure the extent of a defendant's negligence. This can be used to prescribe the degree of damages that a person must be liable to. This brings a high degree of fairness in the case. Also, the foreseeability of the consequences of a person's acts provides a strong case for the definition of the level of liability that a person must be made to bear. Where there was no foreseeability, a defendant might be adjudged to be in a very remote case and in such a case, minimal damages might be required. Thus, the concept of the duty of care sets the minimum limits for tort liability. The concept of duty of care also helps in prescribing punishment and describing the extent of accountability a party must be held to. References Hunt, M. (2012) Law of Tort London: Sweet and Maxwell Marks, L. (2012) English Law of Tort Cambridge University Press Martin, J. and Gibbins, P. (2012) Introduction to Law. London: Hodder Publications Winfield, A. (2010) Law of Tort Oxford University Press Cases Barnett V Chelsea & Kensington Clinic [1968] 1 All ER 1068 Bolton V Stone [1951] 1 All ER 1078 Caparo V Dickman [1990] 2 AC 605 Donoghue V Stevenson [1932] UKHL 100 Paris v Stepney Borough Council [1950] UKHL 3 Phillips V William Whiteley [1938] 1 All ER 566 162 Spartan Steel V Martin [1973] 1 QB 27 Stewart V West African Air Terminals [1964] 108 SJ 838 121 The Wagon Mound No 1 [1961] UKPC 1 Read More