Common Law: Relevance in Tort or Negligence Cases - Assignment Example

Rareplants Ltd Relevance in tort or negligence cases d Chain of causation. The element of chain of causation or direct link in negligence cases is present in the two subject cases involving Rareplants Ltd. For the elderly or disabled coach party member, his injuries were caused by the unsafe pathway. As a matter of fact, even if the pathway was made safe already, it would still have been the duty and responsibility of Rareplants Ltd. to have provided safety escorts or ushers to assist the clients in seemingly hazardous areas of the centre. It must be importantly noted, however, that Rareplants Ltd. undertook substantial steps to keep its place safe for the visiting public. In short, it exercised due diligence that a good father of a family might have done under similar circumstances. That can be a partly valid defense to allow mitigated liability on the part of Rareplants Ltd. About the mother who suffered distress, anxiety and nervous shock resultant of the straying of the children onto an unfinished landscaping project, the direct link or chain of causation element is likewise in attendance. However, the emotional impact may not be fully appreciated by the court as it could possibly be an unusual and unnatural over-reaction. Again, this can be a mitigating circumstance. d-2. Remoteness of damage. It is an element where the damage or loss must be determined as the proximate result of the negligence or quasi-delict. In the elderly/disabled customer, this cannot be made a consideration as the slippage was in truth and in fact the direct result of the unsafe pathway or of the lack of personnel in the center to have provided assistance along the passage. However, for the mother who was shocked, this may be a consideration, but one of mitigation. Why Because if her having been annoyed or distressed or disturbed is in such a level as will render a judgment from an unbiased mind that it is too much more than an ordinary or usual reaction from a human emotion. It is like saying that it is a remote possibility that the shock which the mother experienced would be in that proportion as to become one of a nervous wreckage. d-3. Foreseeability. This is another essential element in cases covering negligence or torts. It practically means that if the defendant could have foreseen the possibility of the damage or injury, he is liable and will thereby be obliged to pay or compensate. The centre is liable for the elderly/disabled guest who slipped while passing the unsafe pathway. Although Rareplants exercised the diligence required of a good father of a family, it could have done better like providing escort or ushering assistance to the special customers who are handicapped. In sum, the centre was in a position to foresee that the slipping off track could happen to a visitor who has disabilities or limitations. In the incident of the children having gone astray, Rareplants has to be adjudged answerable because it was in the position to foresee that some classes of visitors like adventurous children would explore the supposedly prohibited area and could have designated guards or watchmen for the purpose of avoiding any unfortunate happening. ABC Accountants Ltd c. Yes. There is a special relationship between you and Lucy. Any advice from a professional, even if not express or formal or written, is binding even if there is a proviso of non-accountability. The characteristic of that relationship which is not express or formal or written may be denominated as special in that it is not in the regular or standard form. As a matter of course, one that is not ordinary is special. In professional ethics, it does not matter whether the relationship is either. In the instant case and according to its underlying circumstances, however, you are not liable. Why Because your advice did not guarantee success in any given situation which was, as a matter of fact, subject to unpredictable variances and that if the client took it as a wagering decision, she did so at her own risk. In contrast, an engineer who advises this and that specification in a building which later on collapses out of a minor tremor can be liable. Why Because in the latter example, the advised specification is presumed to mean that the building could withstand ordinary quakes. Here, there is no gamble. The specification relates to some definite or set standards of safety. e. As discussed above, you are not liable for the advice. That goes to show that in any situation, the context is irrelevant as far as concerning the outcome of the possible claims. However, in a set-up where you are liable, the context still has no bearing to the probable award for the claims. This is so because in professional rapports, it is of no moment to raise the issue of whether the relationship is ordinary or special. Either way, there is still professional engagement. f. The principle of vicarious liability applies to your advice. Under common law, the act or the superior is the act of the subordinate. The mischief of the employer is the mischief of the employee. The negligence of branch office is the negligence of the head office. Under these precepts, your advice is the advice of your employer. In the event, however, that there would be reckoning of compensation to repair the damage or injury, your employer can file or take a separate action against you. Drivers A and B b. Quantum of proof in civil cases. Under common law, the plaintiff in a civil case has to prove his claim upon a preponderance of evidence which means that proof must be presented to establish moral certainty that indeed the defendant is liable. This requirement in civil litigations is different from that required in criminal cases where the proof needed is one which must be beyond reasonable doubt. Thus, between a civil and a criminal case, the weight of proof and evidence needed is much greater in the latter. We talk here of the English legal landscape. This is being mentioned because there are sovereignties which follow different standards. c. Yes, Lord Atkin's "neighbour" principle applies in this case between the two drivers because Driver B could have operated his vehicle in a manner that he would be thinking about the safety of the other drivers or of his "neighbours". While this principle was announced by Lord Atkin anent a tort or negligence case where a snail was found in a bottle of bear, the general conceptual advice appears to be that you have to love your neighbor and care for your neighbor in such a way that you do whatever you routinely or ordinarily do in such a conduct or manner that you do not cause harm to your neighbor in the process. For instance, if you are a processed meat businessman and you do not care about the sanitary qualities of your products like the messy and disorderly environment of your kitchen, you are not a good neighbor and any damage caused by your poor quality and filthy product will render you accountable. In some recent developments, sickness causing microbes were found in the bottled peanut butters of certain food companies. With dispatch, the contaminated merchandise were withdrawn from the market. Had this not been done and poisoning resulted, those involved in the production and disposal of the said peanut butter items could have faced liabilities. d. The innocent wife who suffers nervous shock because of the wrong information given her cannot claim damages for that as against guilty driver B. However, she can feasibly take action against those who gave her the wrong data and update. Why is this so Guilty Driver B does not have anything to do with the nervous shock suffered by the wife which was the product of the mis-information. There is not direct link. There is no proximity of cause. There is no connection between the root and the effect. Meaning to say that in the case, let us suppose that driver A is brought to the hospital but only for very minor wounds which just need some surface cleaning and dressing. X watches it when A was transported to the hospital. X excitedly tells the wife of driver. A detailing that the latter is now in the emergency room and further exaggerating that several doctors and nurses and other hospital aides are in attendance. Being the loving and caring and concerned partner that she is, A's wife collapsed and became breathless and became seriously ill. If common sense and logic alone will tell us that B has nothing to do with that, how much more with the stricter rules of common civil law. Yes, he (B) is the guilty driver in the collision but no way can he (driver B) be held liable for the wrong information paraded by X. Besides, under common civil law, consequential damages which deserve award are usually founded on bad faith. Unless the negligence is patently gross in character, reckless imprudence cases are not imbued with bad faith. The liability is generally premised on the failure to foresee the possibility of an injury. e. B, the guilty driver, is liable for the injuries of A which resulted from the collision of the two vehicles to such extent as was caused by the vehicular mishap and within that causal parameter. However, if the injuries of A were mis-diagnosed and because of that, his recovery process protracted or prolonged, the factors that aggravated A's injuries cannot be attributed to B. The guilty party in that latter instance is the medical person or persons responsible for the wrong diagnosis but that will be a separate matter. There are instances though where complications of injuries while under medical attention may be likewise answered by the defendant. Let us suppose that in this case, driver B readily admits guilt and responsibility. Due to lack of funds and insurance constraints, the wife of A approaches B for financial assistance while A is being treated. B promises the wife five thousand dollars to be given the next day as the money is needed by that time. B withdraws the money from his bank account but did not timely go to deliver it to A's wife. Instead, he gambles in the nearby casino and loses all the money leaving the wife waiting in hopelessness. A's injuries were therefore not properly medically addressed and his situation worsens. B can be further held accountable for compensation to repair this separate and independent although related damage. Read More