The of PC Yaro and Bully - Case Study Example

The Cases of Bully, Elsie and her mother The Case of PC Yaro and Bully The case of Bully and PC Yaro is an interesting one, and can be divided into two distinct questions regarding tort liability. 1) Did PC Yaro have the legal right to attempt to arrest Bully 2) If PC Yaro did have the right, was the force that was used reasonable within the context of what occurred The Serious and Organized Crime Act of 2005 removed the distinction between "arrestable" and "non-arrestable" offences. Before this Act was passed the police only had the power to arrest someone who was suspected of committing an offence that carried a sentence of at least five years in prison (Kadish, 2001). Depending upon the degree of violence involved (and his previous criminal record), Bully might have been subject to a five year sentence for his robbery from the old lady (Theft Act). However, with the laws in place currently, PC Yaro clearly had the right to attempt to arrest Bully. According to the Police Act of 1996, an off-duty police officer can exercise their powers if the situation dictates it, and thus places himself back on duty. This was the case when PC Yaro say Bully commit the crime and subsequently chased after him. So it is clear that PC Yaro did have the right to arrest bully under #1, so we can now move to number #2. If Bully had not resisted arrest in any way, then PC Yaro would not have been within his legal rights to simply punch Bully. However, as PC Yaro attempted to arrest Bully (having gone through the normal procedure), he was then kicked on the shin by the suspect. Even if Yaro were not a police officer attempting to complete a justified arrest, he would have the right to defend himself. He has just witnessed Bully committing a violent act against an old lady, and thus has the expectation of further violence from Bully. What tort might Bully accuse PC Yaro of The basic tort would be that of assault, which includes deliberate violence against another person (Van Gerven, 2001). What defenses would Yaro have First of all, police officers have a general power to use force for the purpose of effecting a lawful arrest, Second, there is the concept of self-defense. In this case, Yaro would need to prove that the use of force was necessary and that the degree of force was reasonable. It is clear that the defenses to this tort would outweigh any arguments that Bully might have. Indeed, it seems clear that Bully would probably be convicted of the criminal offense of assault on a police officer (see Forbes, 1865). There is no tortuous liability for PC Yaro in this situation. The Case of Jim and Elsie/Mother - Nervous Shock and Economic Loss Most tort law depends upon the consideration and finding of the duty of care owed by one person towards another. Nervous shock tends to involve a serious psychological effect upon the injured party (see Alcock, 1992) As a heavy goods vehicle driver, Jim owes a duty of care to other road users to perform his job in a responsible and careful manner. He is a professional driver and needs to act as such. If Jim had been talking on his mobile phone with his girlfriend and crashed into the sports car, then it would be clear that he would not have shown a sufficient duty of care, and might be regarded as either negligent or perhaps reckless. But this is not the case. In fact Jim was performing his duties as a professional driver admirably through trying to avoid the drunken pedestrian. Everything that occurred from that point on:- from the crash with the car, the nervous shock supposedly suffered by Elsie and her mother and the failure to buy the winning lottery ticket - came about because of this initial perfectly justifiable act upon the part of Jim. However, Elsie and her mother might have a case if it could be shown that the manner in which Jim avoided the pedestrian was negligent/reckless by the standards of a reasonable HGV driver. The facts that are given within the case do not show this was the case at all. For the sake of argument, let us assume that Jim did show some kind of negligence in his reaction to the drunken pedestrian. Would the duty of care that he needs to display in general extend towards Elsie and her mother Lord Atkin has explored the difficulties with the definition of a duty of care in the famous Donoghue (1932) case: The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour The answer seems to be - persons who are 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 called in question. (Atkin, 1932) Lord Wilberforce has given the standard of defining a duty of care in a case such as that outlined in the case: Through the trilogy of cases in this House - Donoghue v Stevenson, Hedley Byrne & Co. Ltd. v Heller & Partners Ltd. (1964) AC 465, and Dorset Yacht Co. Ltd. v Home Office, the position has now been reached that in order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise. (Anns, 1978) Using Wilberforce as a model, and assuming that Jim had shown some degree of negligence or recklessness in avoiding the drunk pedestrian and crashing into the sports car, can we answer the first question in the affirmative The concept of proximity would be important here. Thus as a driver, Jim should assume that any other person either driving on the road or adjacent to the road will be effected by his actions as a driver. This is especially the case for an HGV driver who is in charge of a large, powerful and potentially highly destructive machine. In this case, his duty of care may be regarded as greater than for an ordinary driver. Of course the second question essentially negates the effect of the affirmation of the first one in consideration of the case. Jim was attempting to avoid killing the pedestrian when he acted in the manner that he did. Even if he did not exhibit the most superlative skill in his avoidance, a very high standard of negligence/recklessness would need to be met in order for him to have a tortuous responsibility. Avoiding the death of a person is obviously more important than avoiding damage to a sports car, causing nervous shock to another or even avoiding stopping them from winning five million pounds. As written, there would be no tort case against Jim. Conclusion In neither of these cases could a tort suit be brought with a reasonable chance of success. Torts are perhaps by necessity very broad in definition in order to allow the myriad of possible scenarios that might be brought to be included. In neither of these cases do the facts come even close to providing a reasonable tort case. Works Cited Laws The Police Act, 1996. Serious and Organized Crime Act, 2006. The Theft Act, 1968. Cases Alcock v. Chief Constable of South Yorks (1992) 2 AC 455, HL. Anns v Merton London Borough Council (1978) AC 728 Forbes, (1865) 10 Cox CC 362. Donoghue v Stevenson (1932) AC 562 Books Kadish, Sanford. Schulhofer, Stephen. Criminal Law and Its Processes: Cases and Materials. Aspen, London: 2001. Van Gerven, Walter. Et al. Tort Law (Common Law in Europe Casebooks). Hart Publishing, New York: 2001. Read More