Negligence in Law of Torts - Case Study Example

(a) Negligence has two meanings in law of torts i.e. Negligence as a mode of committing certain torts, e.g., negligently or carelessly committing trespass, nuisance or defamation. In this context it denotes the mental element, and Negligence is also considered as a separate tort. It means a conduct which creates a risk of causing damage, rather than a state of mind. The House of Lords in 'Donoghue v. Stevenson(1932) A.C. 562), threats negligence, where there is a duty to take care, as specific tort in itself, and not simply as an element is some more complex relationship or in some specialized breach of duty . (Grant v. Australian Knitting Mills(1936)A.C.85). According to 'Heaven v. Pender(1883) 11 Q.B.D. 503) "actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury, to person or property". In an action for negligence the plaintiff has to prove that the defendant owed duty of care to the plaintiff, the defendant made a breach of that duty and the plaintiff suffered damage as a consequence thereof. By Duty of care to the plaintiff we mean a legal duty rather than a moral, religious or social duty. The Plaintiff has to establish that the defendant owed to him a specific legal duty to take care of which he has made a breach. There is no general rule of law defining such duty. It depends in each case whether that duty exists. Lord Atkin propounded the following rule in 'Donoghue v. Stevenson' and the same has gained acceptance : "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour". He then defined "neighbours" as "persons so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are being called in question." In this case the defendant raised the defence of "Privity of Contract Fallacy" quoting from the case 'Winterbottom v. Wright(1842) 10 M ) In that case Lord Abinger, C.B., said, "unless we confine the operations of such contracts as this to the parties who entered in to them, the most absurd and outrageous consequences, to which I can see no limit, will ensue." Since an action for tort is quite independent of any contract, there seems to be no reason why for an action in tort a contractual relation between the parties be insisted. This fallacy was done away with by 'Donoghue v. Stevenson' by allowing the consumer of drink an action in tort against the manufacturer, between whom there was no contract. Whether the defendant owes a duty to the plaintiff or not depends on reasonable foreseeability of the injury to the plaintiff. If at the time of the act or omission the defendant could reasonably foresee injury to the plaintiff he owes a duty to prevent that injury and failure to do that makes him liable. Duty to take care is the duty to avoid doing or omitting to do anything, the doing or omitting to do which may have as its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed (Bourhill v. Young,(1943) A.C.92, at 104, per Lord Macmillan). In 'Glasgow Corporation v. Munir' (1943) A.C.448, at 457) Lord MacMillan explained the standard of foresight of the reasonable man : "The standard of foresight of the reasonable man is, in one sense, an impersonal test. It eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question. The reasonable man is presumed to be free both from over-apprehension and from over-confidence, but there is a sense in which the standard of care of the reasonable man involves in it's application a subjective element." In 'Booker v. Wenborn'(1962, 1 AllE.R. 431) the defendant boarded a train which had just started moving but kept the door of the carriage open. The door opened outside, and created a danger to those standing on the platform. The Plaintiff, a porter, who was standing on the edge of the platform was hit by the door and injured. It was held that the defendant was liable because a person boarding a moving train owed a duty of care to a person standing near it on the platform. However, it is also a stated position that there is No liability when the injury is not foreseeable. In 'Ryan v. Youngs'(1938) 1 Al E.R. 522), defendant's servant, while driving a lorry, suddenly died, which resulted in an accident and consequent injury to the plaintiff. The driver appeared to be quite healthy and the defendant could not foresee his sudden death. It was held that the accident was due to an act of God and, defendant was not liable for the same. It is also an stated position that Reasonable foreseeability does not mean remote possibility. According to 'Champan v. Hoarse'(1961) 108 C.L.R. 112, at 115, per Dixon C.J.) to establish negligence it is not enough to prove that the injury was foreseeable, but a reasonable likelihood of the injury has also to be shown because "foreseeability does not include any idea of likelihood at all." Lord Dunedin in 'Fardon v. Harcourt-Rivengton'(1932) 146 L.T. 391) said that "if the possibility of danger emerging is only a mere possibility which would never occur to the mind of a reasonable man, then there is no negligence in not having taken extraordinary precautions.. People must guard against reasonable probabilities but they are not bound to guard against fantastic possibilities." Even a counsel has a duty of care towards his client, the counsel should be careful in performing his professional duties. If a counsel, by his acts or omission causes the interest of the party engaging him in any legal proceedings to be prejudicially affected, he does so at his peril. Likewise, even a medical practitioner, when consulted by a patient owes him the following duties : a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in the administration of the treatment. A breach of any of the above mentioned duties give a right of action for negligence to the patient. It is also a settled position that Duty must be owed to the Plaintiff, Mere carelessness on the part of the defendant does not entitle the plaintiff to sue him, it has to be proved that the defendant owed a duty of care to the plaintiff. When the defendant owes a duty of care to persons other than the plaintiff, the plaintiff cannot sue even if he might have been injured by the defendant's act. This point was illustrated in 'Palsgraaf v. Long Island Railroad Co.' (1928) 284 N.Y. 339: 162 N.E. 99) The other important ingredient that the Plaintiff has to prove to bring about a action for negligence is that there is Breach of Duty made by the defendant. Breach of duty means non-observance of due care which is required in a particular situation. What is the standard of care required The standard is that of a reasonable man or of an ordinarily prudent man. If the defendant has acted like a reasonably prudent man there is no negligence. Lord Alderson B. stated in 'Blyth v. Birmingham Waterworks Co.' (1856) II Ex. 781, 784) that Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do" It should be left to the court to decide in the light of the peculiar circumstances of a given situation that what a reasonable man would have in contemplation, and what accordingly, the party sought to be made liable ought to have foreseen. The law requires taking of two points in to consideration to determine the standard of care required: the importance of the object to be attained, the magnitude of the risk, and the amount of consideration for which services etc. are offered. The law does not require greatest possible care but the care required is that of a reasonable man under certain circumstances. The law permits taking chance of some measures of risks so that in public interest various kinds of activities should go on. The degree of care required varies according to each situation. What may be a careful act in one situation may be negligent act in another. The law does not demand the same amount of care under all situations. The kind of risk involved determines the precautions which the defendant is expected to take. The degree of care depends also on the kind of services offered by the defendant and the consideration charged therefore from the plaintiff. For example a five star hotel charging a high or fancy price from its guests owes a high degree of care as regards quality and safety of its structure and services it offers and makes available. As regarding Damages it is necessary that the defendant's breach of duty must cause damage to the plaintiff. The plaintiff has also to show that the damage that caused is not too remote a consequence of the defendant's negligence. There are some tests that can in whose light the damages the can be assessed like the test of reasonable foresight that says if the consequences of a wrongful act could have been forseen by a reasonable man, they are not too remote. If, on the other hand, a reasonable man would not have forseen the consequences they are too remote. As per the opinion of Pollock C.B. in 'Rigby v. Hewit'(1850) 5 Ex. 240) the liability of the defendant is only for those consequences that could have been forseen by a reasonable man placed in the circumstances of the wrongdoer" According to The test of Directness the test of reasonable foresight was rejected and the test of directness was considered to be more appropriate by the court of appeal in 'Re Polemis and Furness, Wilthy & Co. Ltd.' (1921) 3 K.B. 560) (b) According to the given scenario above as according to me initially two torts are made out and regarding that action can also be taken. First one is that when I visit Mr. Gervais office than I see that the carpet is ill-fitting and I almost trip over it. If I would have tripped over the carpet then certainly I would have fallen on the ground and could have injured myself badly, that obviously entails compensation. But strictly reading in to the law of torts this case comes under the purview of negligence but not under the head of reasonable foreseeability but under the head of remote possibility and 'Bolton v. Stone'(1951) A.C. 850) and 'Bilyth v. Birmingham water works co.' (1856) 11 Ex. 781 : 156 E.R.1047) amply demonstrated that position. The tort against which some action can be made out is the injuring of one of the office employyess i.e. an employee playing a practical joke on his neighbour. He fires a catapult in his direction which is loaded with a pair of scissors. Unfortunately, Geoff an employee is injured quite badly when the catapult is released. Due to the injury Geoff the employee lost an eye as a result and will be unable to return to his job (which involved doing detailed computer work and looking at a screen for long periods of time.) The employee concerned, Geoff, is now having to take a less well paid job in order to support his wife and four children. He has also had to give up his favourite hobby of watercolour painting - as he can no longer see sufficiently well. He will never be able to drive again. In this case the Vicarious Liability of Mr. Gervais is made out. According to it if a servant does a wrongful act in the course of his employment, the master is liable for it. The doctrine of the master for act of an servant is based on the maxim respondeat superior, which means 'let the principal be liable' and it puts the master in the same position as if he has done the act himself. For the liability of the master to arise the following two essentials have to be present i.e. the tort was committed by the servant and it was done by him in the course of his employment. The case 'Limpus v. London General Omnibus Co.' (1862) 1 H. & C. 525) amply illustrates that. Bibliography Bangia, R.K. (2007)Law of Torts.Allahabad Law Agency Adams,Alix.(2006)Law For Business Students.Pearson Education Ltd. Elliott,Catherine.(1998)Law of Torts. 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