British Tort Law: 3 Test Cases - Case Study Example

British Tort Law: 3 Test Cases Introduction In British law, as in most other judicial systems, tort is considered a civil wrong as distinguished from a criminal wrong, such that the tort law is enforced not by police but by one citizen against another through a civil action. Only in rare cases is tort tried in front of a judge, such as when the complaint involves libel or defamation. In England and Wales, the law of tort covers five types of offenses: trespass of land, trespass against goods, trespass against person, negligence and defamation (Wikipedia). Trespass on land, goods and person is altogether the most common type of tort, but in all cases the main concern is the allocation of responsibility for whatever losses are sustained. For any one party to be held responsible for violation of the tort law, the claimant must establish that there is a duty of care and that there has been a breach of that duty to cause damage or loss to the claimant that needs to be compensated by an award of damages. There is a breach of the duty-of-care principle if the defendant is proven to have failed to do what a reasonable person will do in the situation presented. Hereunder are three separate scenarios designed to test the wisdom and rationality of the English tort law as it applies to present-day realities and to everyday human interactions. Case Test 1 Francesca was a chambermaid of good standing at Hulton hotel until a regular hotel guest stormed into the manager's office one day to accuse her of theft. The hotel regular Manon complained that he asked Francesca to redeem a ring worth 20,000-pound sterling from a downtown jeweler where it was taken for repairs. He never saw the chambermaid and the ring again. Obviously, Francesca kept the ring for herself and avoided Manon while continuing her duties at the hotel. In March, the hotel management dismissed Francesca for cause and brought a court case against her. She was convicted in August on several counts of theft after subsequent investigations revealed that she had stolen from other hotel guests before, although mostly involving items of smaller value. The hotel guest Manon, insisting that the hotel management shares responsibility for Francesca's misdeed, is intent on suing the hotel, saying the establishment should answer to the law as well. Question: Is the Hulton hotel management accountable for the loss of Manon's ring to the thieving Francesca Answer: Yes, the hotel management shares the blame for Francesca's acts under the British tort law. However, this judgment depends on the circumstances surrounding the theft. The Occupier's Liability Act in UK expressly provides that any person like a shop owner who admits people into his premises owes a minimum duty of care to protect these people's safety (MRL, 2003). This statutory tort applies to health and safety regulations across the workplace (Honore, 1995). In the case simulation at bar, the Hulton hotel management admitted the man Manon into its premises as hotel guest. The hotel here is a workplace where health and safety regulations are to be strictly observed. It follows that the hotel management is duty-bound to care for its guest's safety from "trespassers" against his goods. Therefore, Manon's loss of his ring can be traced to the hotel's breach of its duty of care by failing to detect the presence of a potential theft among its employees as a safety precaution. For this reason, it is reasonable to ask the hotel to recompense the loss. The management, however, may argue that Manon had it coming because he entrusted his ring to Francesca as an individual presumably enjoying his confidence, and not as an adjunct of the hotel who entered the arrangement with the full knowledge of management. It should be noted that Manon's act of personally requesting Francesca to redeem his ring from the jeweler's shop in his behalf involved an element of trust. If that were so, common sense dictates that the theft was a result of Manon's carelessness, not that of the hotel, such that the blame for the loss was his alone. He had misjudged someone else's character and had to pay the price. If Manon had informed management of the arrangement with Francesca beforehand, his case against the management's shared responsibility would have been stronger. As long as the hotel management had taken "reasonable precautions" against such incidents, it is not liable for a breach of duty (Barker & Padfield). Amongst the conditions in which the English tort law is violated is when "the defendant knew, as a reasonable person will have foreseen, the loss or damage in the circumstances prevailing at the time of the alleged breach of duty ( Ronen, 2006)." Under the UK tort law, the claimant Manon has to show that the Hulton hotel management, the possible defendant in this test case, knew and could have foreseen the loss at the time of the alleged breach of duty. If the hotel had no such knowledge or premonition, then Manon has no tort case against it. Just the same, an establishment like a hotel that admits people regularly as guests is obliged to take precautionary measures against eventualities like theft. In the precedent-setting Donoghue v Stevenson (1932), an individual is remiss of his duty of care if he fails to take precautions to avoid causing a trespass to the property of others under his wing. Test Case 2 Matthew worked as a lifeguard at the poolside of a family leisure centre run by the local government. He suffers from a particular case of eczema that noticeably acted up from contact with the highly chlorinated pool. (The skin problem runs in the family such that only one member, Matthew's younger brother, does not have it.) For this reason, he saw the need to shower with tap water as soon as he was done with his pool duties. However, he could not do so because the leisure centre manager always got in the way. He was under strict orders to supervise the children as they take their shower after their swim and to close the shower room as soon as the children were through. Thus unable to take a shower after his pool duties, Matthew noticed a marked deterioration of his eczema, which forced him to quit his job and at the same time abandon his lifelong dream to become an Olympic swimmer. Question: Can Matthew slap a tort case against the leisure centre and its manager whose actions prevented him from taking a shower after his pool duties, thus exacerbating his eczema and forcing him to forsake his job and his lifelong dream to become an Olympic swimmer Answer: Matthew's case against the leisure centre and its manager is inherently weak based on legal precedents. This test case invokes a social dimension, one of the fundamental factors on which the British tort law is based. If a defendant's actions serve a social purpose, the law says unequivocally, taking greater risks is justified even if these actions harm somebody (Watt v Hertfordshire, 1954). Clearly, the government-run leisure centre, which is indicated to cater to children, serves a social purpose. In other words, the welfare and safety of the children were uppermost in the manager's mind when he imposed the strict order that Matthew supervise their shower and then close the shower room immediately after. Moreover, the manager could not have known that such an action would worsen Matthew's eczema, which knowledge calls for a specialized area of medical expertise. Even then, there is as yet no scientific consensus that chlorinated pool water indeed exacerbates eczema. A judgment relevant to this case has been passed regarding Hippolyte v Bexley London Borough Council (1986). A 16-year-old schoolgirl suffered a severe asthma attack while attending a class and the teacher took time in calling for an ambulance. The girl died at the hospital and the doctors said they could have saved her if she was taken a half-hour earlier. The girl's family brought a case against the teacher but the court absolved her of any responsibility. When the case took place in 1986, the judge declared, knowledge of asthma and its sometimes fatal attacks was yet limited and for this reason the teacher was not in breach of duty when she took longer to send for an ambulance. The same thing can be said of the leisure centre manager whose actions prevented the eczema-ridden Matthew from taking a shower immediately after his pool duties. How could the manager have known or be ascertained that this skin disease is made virulent by pool water From what we could make out of the case simulation, Matthew was reasonably embarrassed of the skin disease that he never told anyone at the leisure centre, including the manager, that he had it. Otherwise, the manager would not have taken Matthew in as lifeguard in the first place for fear that he would spread the skin disease through the pool water. This only serves to strengthen the argument that the manager involved did not violate the tort law. There are other circumstances, however, when complaints similar to Matthew's prosper, such as proving in the claim that they could not have contacted a disease "but for" the negligence of the defendant. In McGhee v National Coal Board (1972), the claimant who worked in brick kilns alleged that he contracted dermatitis because of the failure of management to provide shower facilities for employees. The Lords handling the case then held that such absence of showers amounted to negligence or a breach of duty that "materially increased the risk of injury." Test Case 3 Employers are generally held responsible for any careless acts of their employees. For example, a restaurant got sick after having been served food that turned out to be spoiled. This happened because of the carelessness of the kitchen employees. In such a case, the management shares the blame and is obliged by law to compensate the damage sustained by the customer. What if a restaurant employee commits a criminal act against the customer Question: Does the responsibility of employers extend from the carelessness to the criminal acts of their employees Answer: Yes, the responsibility of an employer for his employee's actions stretches out from carelessness to the criminal acts, so long as these criminal acts occur within the employment premises or the employee did them in the course of employment. There is duty of care if an employer-employee relationship and proximity are established (Christie, 1995). Once that relationship and proximity between employer and employee is established, you can sue the employer for the damage caused to you by his employee, which is caused in the course of employment (Currie & Cameron, 2000). A logical interpretation of this ruling takes damage as something that may result from an employee's carelessness or criminal intent. In other words, carelessness and criminal acts carry the same weight in the law of tort. Let us say a Wal-Mart employee spills some cleaning liquid on the floor and failed to put up an appropriate warning sign. A customer then slipped on the wet portion of the floor and broke his neck. In this case, the Wal-Mart management cannot wash its hands off the accident and say that it was entirely the fault of the offending employee. The law of tort says: If your employee harmed the claimant in the course of his employment at your store, you bear responsibility for the damage because you as employer have the control to hire and fire the employee, and thus reduce the risk of it ever happening again (Honore, 1995). For all you know, the employee in question may have deliberately spilled the cleaning liquid because of a mean streak in his character, which certainly makes the act a crime. It is reasonable to expect that when employers screen people applying for a job in their companies, one of the more important things they try to determine is whether the applicant has criminal tendencies. If the employer fails in observing this criterion and hires an employee with a questionable character, he could be guilty of negligence and becomes liable if said employee performs a criminal act in the course of his employment. Despite the earlier rulings on such cases, however, court decisions on tort complaints in UK are still evaluated on a case-to-case basis, depending on the particular circumstances surrounding the event. On the matter of coverage, for example, the problem is still being debated today: if a duty of care is owed, what is its scope (Hocking & Smith, 1996) Reference List: Barker, D. & Padfield, C., Law Made Simple, ISBN, 0-7506-5405-8. Christie, G. 1995, The Uneasy Place of Principle in Tort Law, In Philosophical Foundations of Tort Law, David Owen (ed), Oxford: Clarendon Press. Currie, S. & Cameron, D. (2000), Your Law, Nelson Thomson Learning, Melbourne, 25. Metaphysics Research Lab, 2003, Theories of Tort Law, CSLI, Stanford University. Ronen, P. 2004, Relational Economic Loss: An Integrated Economic Justification for the Exclusionary Role, Rutgers Law Review, vol. 56, no. 3, Spring 2004, 71-88. Hocking, B. & Smith, A. 1996, The Potential of the Law of Torts to Assist in The Protection of Children, Queensland University of Technology, vol.3, No. 1, May 1996. Honore, T. 1995, Foundations of Tort Law, Oxford; Clarendon Press. Whish, R. 2003, Competition Law, 5th ed., Lexis Nexis, 10. Wikipedia, English Tort Law, webpage design (online) at: http://en.wikipedia.org/wiki/English tort law Read More