The Concept of Negligence and Careless in Jurisdiction - Case Study Example

The concept of negligence as a tort is a civil wrong that is dealt with between individuals. Negligence should not be viewed as the same as being careless, as someone could be doing everything within their ability to be careful, but nevertheless still fall short of what is expected of them. Essentially, where there has been a situation where an individual suffers a loss and is injured as a result of the negligence of another, they may be entitled to claim losses from the negligent individual or party. Broadly speaking, in order for there to be a valid claim in negligence, there must be a duty of care from the plaintiff to the claimant; secondly, there must have been a breach of this duty; and thirdly, a causal link both factually and legally must exist between the breach and the harm suffered by the individual. It is also necessary for the individual to show that they have suffered damages. During this analysis, the above requirements will be discussed in relation to the defences forwarded by DURU, following the claim made by the estate of Russell, following his death. The first and critical argument put forward by DURU is that, under the English negligence law, they did not owe a duty of care to Russell. This brings into question the first element of the tort of negligence in that there must be a duty of care before any claim of negligence can be substantiated. The initial notion of duty of care was established in the case of Donoghue v Stevenson1, where it was found that a duty of care should exist, based on the neighbour principle. In this case, a decomposed snail was found in the drinks bottle of the claimant, but there was an argument as to whether or not the manufacturer should be seen as liable, as the claimant had not themselves purchased the bottle. It was found, in this case, that they could be deemed to be negligent and that the claimant would have a claim based on the principle that a duty of care existed to their 'neighbour'. A more modern approach has now been taken by Caparo v Dickman2, where a threefold test was established and it would be this test that DURU would be required to use in forwarding their first defence. In accordance with this case, a threefold test must be passed in order for a duty of care to be established. Therefore, if DURU could show that these are not met, they would rightly be able to rely on the defence that no duty of care existed. The threefold test is as follows: The harm suffered must be deemed 'reasonably foreseeable' as a result of the way in which DURU conducted itself; that there must be a relationship of sufficient proximity between DURU and Russell; and finally that it is 'fair, just and reasonable' for the duty to be imposed on DURU. The test of proximity remains reliant on the test laid out in Donaghue v Stevenson and as stated by Lord Atkin as part of this case. Lord Atkin stated that a duty should be owed to 'persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected'. Other queries have been raised in terms of whether or not it would be reasonable to expect DURU to take some responsibility for the death of Russell. Based on the 2009 Act, DURU has assumed responsibility to provide one to one care in a structured manner to those suffering from drug addiction. In signing Russell up as a patient, a relationship has been established. There is a general concept that there is no positive duty on everyone to undertake certain actions; however, due to the statutory powers given to DURU and the subsequent decision to take Russell on as a client, it is likely to be deemed that a duty of care exists towards Russell, and, for that matter, any other patient taken on by DURU3. Furthermore, the courts are likely to take public policy and interest into account when deciding whether or not a sufficient proximity exists. Based on the underlying reasons for the establishment of DURU and the fact that the organisation has been established to take responsibility for those who are addicted to drugs, it is likely to be deemed that a duty of care does, in fact, exist between DURU and Russell. It would seem unconscionable for DURU to be able to escape any potential duty towards its patients in the context of actions taken in their care and, on that basis, it is suggested that the first argument put forward by DURU would not be accepted by the court. The second argument put forward by DURU is that the failure to offer the home supervision that was agreed on a bi-weekly basis for the four weeks prior to Russell's death was not directly linked to Russell's death, or indeed to the mental suffering of the family. This is a matter to be determined based on the third element of the test for negligence, i.e. that there is sufficient factual and legal causation between the breach of duty to offer the required level of care and the future actions4. Essentially, this will require the family of Russell to show that the actions of DURU led to the damage suffered, i.e. Russell's death and the subsequent emotional distress suffered by the family and that the damage was sufficiently closely connected to the breach of DURU's duty. One way to argue this in DURU's favour would be that the damage would have occurred even had DURU not been in breach of their duty. This would mean that if DURU could show that it would have been likely that Russell would have died, regardless of their inability to visit him twice a week, then it could not be said that their breach had directly led to the damage. This is widely referred to as the 'but for' test and was established in a case where a doctor negligently failed to diagnose a condition, but there was no course of action available in negligence, as the patient would have died regardless of this breach5. A similar argument was established in the case of Bolitho v City and Hackney Heath Authority6, where a doctor successfully argued that, although they had breached their duty in failing to attend on a patient, the outcome would not have been any different. Following on from this, it would be plausible for DURU to argue that their failure to attend would not have ultimately changed the fact that Russell died and therefore there had been no breach. It is also worth noting that, although it was suggested that Russell's status should be upgraded to increase the amount of care he received, this was not due to be reviewed until a point after Russell's death; therefore, the failure to upgrade Russell would not be seen as a breach of duty. There could be at least some argument, however, that in noting the likelihood that Russell would be upgraded, the need to visit him regularly by the social team would have been made more obvious. The administrative error would have removed this information and therefore the urgency of the visits would not have been recognised. Taking a reasonable approach and also considering the but for test mentioned above, it is unlikely that DURU would be able to claim that its actions were not at least partly responsible for Russell's death. DURU had committed to attending Russell at least twice a week (with a view to this possibly increasing due to his worsening state) and had failed to visit at all in the course of four weeks. Given the fragility of Russell's position and the fact that DURU failed to meet even the minimum standards of care required, it is reasonable to conclude that Russell's death was at least in part linked to DURU's breach of duty. A separate issue exists in relation to the mental upset felt by the family, due to Russell's death. There are two potential avenues that DURU could explore in defending this claim; firstly, that they are not responsible for psychiatric injury; and secondly, that the damage is too remote so as to be directly attributed to their breach. In terms of whether or not the damage was sufficiently closely related to the breach, the test is whether or not the damage occurred directly as a result of the breach, i.e. whether it was a foreseeable consequence7. It would be reasonable to argue that distress to the family upon the death of a loved one is foreseeable; however, on a matter of policy, it may not be seen as desirable due to the potential breadth of such a liability. To make an entity responsible for all secondary upset arising from a negligent action would potentially extend the scope of negligence unreasonably far. This links directly into the question of whether or not the family could claim for emotional distress, when they themselves have not suffered any physical damage. The family would be deemed as secondary victims and these victims are only able to claim in very limited circumstances. It is well recognised in English law that there can be no claim simply based on grief or distress, following a person's death. As stated by L Denning: 'Somehow or other the court has to draw a line between sorrow and grief for which damages are not recoverable; and nervous shock and psychiatric illness for which damages are recoverable...'8. In certain limited circumstances where the death has been directly witnessed (as seen during the Hillsborough disaster), there may be a valid claim, but this is a particularly extreme example and cannot be seen to extend to general secondary cases9. Therefore, based on this, it is unlikely that the family would be able to claim for their emotional upset at Russell's death. It would, however, be reasonably foreseeable that the breach by DURU caused, or at least partially caused, Russell's death and therefore this liability would remain, prima facie with DURU10. The third argument put forward by DURU is one of policy in that it is felt that placing a duty on them when Russell was engaged in the illegal activity of drug taking would be unreasonable. Whilst there is certainly an argument to be had that previous cases have decided that a claimant cannot claim for breach when they themselves are undertaking illegal activity, this has been seen mainly in the context of undertaking a specific illegal act such as burglary and where the alleged negligence has arisen between the participants of the illegal activity11. The entire purpose of DURU was to deal with those taking illegal drugs and it would seem unreasonable that DURU would never be held accountable for its actions based purely on the fact that those to whom they owed a duty of care were, in fact, taking part in (known) illegal activity. A stronger policy argument may exist by arguing that, if a duty of care were to be imposed on DURU, this would prevent them from taking on certain 'risky' clients for fear of further actions, but this would be a matter of public policy to be weighed up by the court in the individual circumstances. The fact that Russell was engaged in taking illegal drugs would not in itself prevent an action for negligence against DURU12. The final argument put forward by DURU is that there would be at least some contributory negligence to be apportioned to Russell for his own death. Broadly speaking, contributory negligence is thought to exist where the court feels that the claimant (or in this case the subject of the claim as it would be Russell's estate that is making the claim), had acted in a way that contributed to the damages suffered. Where the court does agree that there has been an element of contributory negligence, the damages awarded will be reduced according to the perceived level of contribution13. For example, where an individual is claiming negligence against a driver when he was a passenger, but knew that the driver was drunk and he did not wear a seatbelt, for example, a reduction of 20% in the awarded damages was made to take account of this contributing situation14. A finding of contributory negligence is not fatal to the claim and does not extinguish it entirely15. It is generally thought that an individual would be found to have contributed to the situation where he ought to have reasonably foreseen the damage, if he did not act as a reasonably prudent individual16. Based on this, it could certainly be argued by DURU that Russell did not act in a prudent manner by slitting his wrists and should have reasonably foreseen that death may have been the likely result of this action. A particularly relevant case in these circumstances is that of Barrett v Ministry of Defence17, where a sailor was held to be 75% responsible for his own death after becoming intoxicated, although the court did hold that a duty of care did exist and the Ministry of Defence was at least partially responsible to his widow for the death. With this in mind, it is concluded that a duty of care does exist between DURU and Russell, that it cannot be said that there was insufficient factual link between their breach of duty and his death and that the fact he is engaged in illegal activity would not extinguish the claim. However, the family would be unable to claim as secondary victims for their mental distress and it would be likely that any awarded damages would be substantially reduced on the grounds of contributory negligence. Bibliography Harlow, Carol, Understanding Tort Law. 3rd edn, Sweet & Maxwell, 2005, p. 53 Smith, Kenneth & Keenan, Denis J., Smith & Keenan's English Law, 14th edn, Pearson Education, 2004, p. 814 Statsky, William P., Essentials of Torts, 2nd edn, Cengage Learning, 2000, p. 188 Donoghue v. Stevenson [1932] AC 532 Caparo Industries plc v Dickman [1990] 2 AC 605 Dorset Yacht Co. Ltd. v Home Office (1970) AC 1004 Barnett v Kensington and Chelsea Hospital [1969] 1 QB 428 Bolitho v City and Hackney Heath Authority [1998] AC 232 Re Polemis [1921] 3 KB 56 Hinz -v- Berry [1970] 1 All ER 1074 Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 Pitts v Hunt [1990] 3 All ER 344 Tinsley v. Milligan. [1994] 1 AC 340 Owens v. Brimmell [1977] QB 859 Law Reform (Contributory Negligence) Act 1945 s.1(1) Jones v Livox Quarries [1952] 2 QB 608 Barrett v Ministry of Defence [1995] 3 All ER 87 Read More