Fundamentals of Business Law: The Tort of Negligence - Case Study Example

Law of Tort Negligence is the omission to do something that a reasonable man, guided upon those considerations which ordinarily negotiate the conductof human affairs would do, or doing something which a prudent and reasonable man would not do: For the tort of negligence to succeed, three factors must be proved by the plaintiff. a) That the defendant owed him a duty of care. b) That there has been a breach of that duty of care. c) That the plaintiff suffered injury to his person or property. 1 The case Duty of Care with regard to Fairchild vs. Glenhaven Funeral Services In law, a person has a duty of care towards his neighbour. He ought to refrain from acts that are likely to injure his neighbour. And the question is "who is your neighbour in law". A neighbour is anybody who would be directly affected by your acts that you ought to reasonably have had him in contemplation as being likely to be affected. In the fair child's case, the industrial employers had a duty of care towards the employees in ensuring that:- a) The environment in which they (employees) are working is safe. b) The industrial effluents (if toxic) are not inhaled by the workers. This point of 'duty of care was illustrated in this care of:- Donogue vs. Stevenson of 1932 A man purchased a bottle of ginger-beer from a shop to be used by his girlfriend. But the bottle in which the beer was contained was opaque and it was impossible to clearly see its contents. It was later found that the beer contained remains of a snail on pouring out the beer. The girlfriend got sick and sued the manufacturer for damages in tort. It was held that the defendant was liable since he owed her a duty of care to ensure that the bottle should contain any other objects apart from the beer itself. Under the tort of negligence, the plaintiff cannot successfully sue the defendant unless he/she proofs that he was injured. Even if damage is evident, the plaintiff must also proof that he suffered injury directly attributable to the damage. The plaintiff might suffer injury not directly attributable to the damage. If this is the case, his action will fail. 2 In Fairchild's case, the workers inhaled excessive asbestos and contracted mesotheliona, a cancer associated with the inhalation of such substances. The injury here is this disease suffered. This would give the worker an automatic a way to sue their employers for damages. The situation would have changed had the workers not contracted the disease or any injury of a similar nature. The employers know very well that excessive inhalation of the asbestos would cause the disease but they did not take reasonable steps to avid it. Standard of Care Apart from just the duty of care that one owes his neighbour in his actions that he ought to have him in contemplation, there are cases where standard of care need to be shown. The courts have the burden to proof whether the defendants had standard of care. A standard of care is thus expected from an ordinary prudent person in a given situation. If a person has placed himself or made others believe that he can execute a given task, then he owes his clients a standard of care to do such a task without harming the client. A doctor for instant in a reputable hospital owes a patient a standard of care and should carry out his work expected of a doctor from such a hospital and expect to be given such a standard of care. 3 Causation of Damage under Negligence The general rule under negligence is that the burden of proofing negligence would lie on the plaintiff. But in case of accidents in the workplace, the plaintiff need not proof negligence if that accident could not have occurred were the defendant not negligent. In such cases, the plaintiff relies on the principle of 'Res Ipsa Loquitor" i.e.; let the facts speak by themselves. The burden of proof then shift to the defendant. The defendant would then convince the courts that the accident would still have occurred without his own negligence. 4 If the defendant successfully argues that he was not negligent or convinces the world that the accident could still have occurred without negligence on his part, then burden of proof reverts to the plaintiff. The plaintiff must now proof negligence on the part of the defendant. For the rule of 'res ipsa loquitor' to apply, three conditions must be met; a) Evidence of negligence on the part of the defendant must be reasonable and sufficiently be sought. b) That when the accident took place, the activities were under the control of the defendant. c) That the accident is not a common occurrence that it only occurs when a duty of care has been breached. From the above principle, it would be difficult for the employers to compel the workers to proof negligence because all of the above principles apply. Under factual causation, it must be proofed that the loss suffered by the plaintiff comes from acts or omissions by the defendant only. If proofed otherwise that the damages caused originated from another source, the defendants will not be liable. The question however is if the employers rely in legal causation and claim that the negligence was too remote Negligence is said to be too remote if one could not foresee it Negligence is also remote if the loss cannot be reasonably determined or the time at which the loss occurred cannot be reasonably established. In Fairchild's case the workers were unable to determine when they contracted mesothelioma. They had worked in multiple companies and it was difficult for them to know at what particular point in time they contracted the disease. The industrial employers can use this to argue that the negligence caused was not enough to make them entirely liable. It was too remote. That is why only one claimant who proofed that each of the defendant employers contributed to his exposure and subsequently contraction of the disease succeeded in his suit. It cannot be exactly be established that the industrial employers could foresee the loss because asbestos was being produced and which was inhaled by the workers on a daily basis. But on the other hand, the fact is that the worker had inhaled the substance for quite a long time that the employers could have assumed that everything was normal. However, they cannot rely on this and claim that because the workers contracted the disease after a very long time then the negligence was remote. This is because it is apparent that the workers inhaled excessive quantities of the substance and the industrial employers were aware of it. This issue of foresee ability in negligence in negligence was further held in the case of:- Palsgraf vs., Lond Island Railroad Co. In this case a passenger had a package and was trying to catch a train. The employee of the train (defendant) saw as if he was falling down and therefore wanted to rescue him. Unluckily, there was panic in the process, the package fell down and caused injury to Palgraf who sued the employee for negligence. It was held that the defendant could not reasonably foresee the injury to Palsgraf and therefore the employee was not negligent for this purpose. 5 Unlike in fair child's case, Palsgraf's case is a situation whereby a third party has been affected by the defendant's acts. It can be difficult to foresee injury to a third party. The negligence is reduced to a mere accident. But in Fairchild's case, the people who infect suffered were the 'neighbours' of the industrial employers. I.e. people who were to be directly affected by the acts of the employers. They were the one who were directly involved with the day to day industrial chores and foreseability principle cannot be used to limit their liability as was in Palsgraf's case. In the case of Caparo Industries vs. Dickman, foreseability principle was used to limit the ability of the defendants. The defendants were auditors of a company, fidelity plc. It was late realised on the stock exchange that the company was a poor performer that was anticipated. It was although held by the court of appeal that the defendants didn't owe the plaintiff any duty of care. For the tort under negligence to succeed, it must be established that the defendants reasonably foresaw that damage was to take place. In Caparo Industries vs. Dickman, the auditors did not posses prior knowledge that the plaintiffs were to rely on the audit report to make an investment in the fidelity plc. Here again the issue of proximity in negligence arises. That cannot be liable in tort unless he was so closely related to the person alleging injury. It is only your neighbour who can allege injuries after establishing that the injury came as a result of the acts or omissions of another person. 6 Contributory Negligence Contributory negligence can be looked from two perspectives: a) Where the plaintiff has contributed to his own injury. At times, the person alleging that he has suffered injuries may have himself contributed to the injury itself. In this case, he cannot maintain an action against another with regards to the injury. But the law has been amended by the law reform (Contributory negligence Act) of England. The aggrieved party can now be awarded damages for an injury that he contributed. However he is not allowed to be compensated for the total loss suffered. The award is to be reduced to the extent that the courts feels is just equitable. b) Where two or more defendants caused loss to a plaintiff:- This is a situation where like Fairchild's case, the loss/damages to the plaintiff was caused by two or more defendants. In cook vs. Lewis, two hunters were hunting and they shot simultaneously injuring the plaintiff. But the plaintiff was shot by a single pellet. It was difficult for the plaintiff to proof exactly who between the hunters had shot him. It was held that in such circumstances, the plaintiff only need to ascertain arm/injury. That's all. It is the defendants who now have to proof that their acts were not deliberate or due to negligence. It has therefore been argued that causation problems should not arise simply because two or more persons caused the injury. In Cook vs. Lewis, the perpetrators knew exactly that the plaintiff was passing by and went ahead to shoot this injuring them. In Fairchild's case, the industrial employers would not escape liability alleging that it cannot be exactly established who among them caused the workers to contract the cancer disease. The onus shall be shifted to them to pave that their action or omission were not negligent. References Emerson R. W, (2003), Business Law, 5th Edn, Sydney, Educational Publisher Jertz, A, Miller L. R, (2004), Fundamentals of Business Law, 3rd Edn, Nairobi, Macmillan Publisher Emanuel, S. L, (2004), Fundamental of Business Law, 4th Edn, Sydney, Educational Publisher Penrose, R, (2005), Road to Reality: A Complete Guide to the Laws of the Universe, Nairobi, Longman Publisher Tyler, T. R. (1990). Why People Obey the Law. Hew Haven: Yale. Read More