Negligence and Duty of Care - Essay Example

Abstract With the modern penchant for litigation, joined with the increased recognition of responsibility, the tort of negligence has become one of the most widely used areas of litigation. This paper examines the development of this phenomenon, providing a study of its principle and paying particular attention to the development of the core elements on which this litigation rests, namely the legal definition of duty and care. Our research shows that, in some areas, the current situation in tort of negligence can be argued to be unreasonable. However, it is concluded that, although there is some evidence of attempts to curb the effects of such litigation, the key intention of tort of negligence is rapidly becoming the defining criteria for all tort cases. Tort Law Over the past decade or so we have seen a significant growth in the number of legal organizations offering to act for clients on a “no win, no fee” basis. The majority of cases dealt with under these conditions relate to action taken under the tort of negligence. Tony Weir (2004) argues that the tort of negligence has almost reached a position where its principle that “It is actionable unreasonably to cause foreseeable harm to others,” is the standard upon which all torts are judged, thereby eliminating the need for other torts. This is a view supported by others. In her book on the subject, Susan Hodge (2004 p.28) agrees that, “in many ways it is the most important tort.” In this paper, the intention is to examine the validity of this argument by examining the duty of care, which forms the basis of this principle. We find that, although in recent years there have been some attempts to curb the expansion; the tort of negligence is dominating tort actions. Although this document concentrates upon the tort of negligence, it is helpful to provide a brief understanding of Tort law in general. Tort law differs significantly from contract law, which is based upon the execution of a previously made undertaking. The key issue in tort is the protection of an individual’s rights and interests. This relates to their physical being; the property they own; their present and future fiscal position and the esteem with which they are held by society in general. The application of the law of torts generally falls within three classes. These are intentional tort, nuisance and negligence. Intentional, as the word suggests relates to a deliberate act of harm against another, for example an assault. Nuisance is an act that can be deemed to interfere with, or destroy the rights of enjoyment of others, for example, when a neighbour causes a level of noise that will interfere with the right of a person to enjoy peace and quiet in their own home. The tort of negligence applies where an act or a failure to act, be that intentional or not, causes loss or damage to another. This tort relies upon the core principle of “duty of care.” Before a case of negligence can proceed, there are certain criteria that must be fulfilled. Primarily, one has to prove that there was a duty of care and that the required standard of that duty not been met. To claim negligence resulting from this breach, the claimant then needs to prove that damage must have been caused, and the potential for that damage must have been foreseeable. An exception to proof of damage exists in cases that are “actionable per se,” such as libel or slander. Duty of care The defining case for duty of care is widely recognized to be that of Donahue v Stevenson1. The case involved a situation where a customer found a slug in a drink that had been bought for her by a friend. The event caused her illness. Relying on the fact that he only owed duty to the purchaser, the café owner successfully defeated a claim made against him. Undeterred, the claimant took the hitherto unknown step of successfully suing the manufacturers, claiming they had a duty of care in the packaging of the product. It is the definition of duty and care in this case, recently headlined as “The Slug that changed the world” (Stephanie Todd 2003), that has formed the basis of consumer protection laws, and used as the central issue for the majority of the claims made under the tort of negligence law. The judgment in this case, as stated by Lord Atkin was that a person or corporate body “must take reasonable care to avoid acts or omissions which you [they]2 can reasonable foresee would be likely to injure your neighbour.” He further clarified the term neighbour as “person so "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 called in question". This ruling clearly imbedded in law that there need not be direct connection between the offender and those against whom damage has been caused. Since that time, there have been a large number of rulings that have sought to redefine, extend, adjust, or otherwise affect the basic concept of duty of care, with varying degrees of success or failure, and this has led to some confusion over the years. A classic example of the confusion can be seen in the cases of Anns v Merton LBC3 and Murphy v Brentwood DC4, both involving claims made by members of the public for damage caused as a result of actions taken by their local council. In the Anns case, finding for the defendant, Lord Wilberforce established a dual test for duty of care: - Would liability be generated under the  "Neighbour Principal"? Are there any (public policy) reasons, which negates or limits the duty? It was judged in this case that duty of care existed where damage could be foreseen and there was a defined in Donohue v Stevenson, between those who caused the damage and those who suffered. However, nearly fifteen years later the Anns case was overruled in the Murphy case, relying on the tests for negligence put forward in the case of Caparo v Dickman5. The Caparo case was brought by investors who claimed they had suffered financial loss because of a negligent statement made by the auditors of the company in which they had invested. The judge dismissed the claim on the basis that it was not possible or reasonable to expect the defendant to be responsible for persons that they could not know would rely upon their statements. Thus, the new duty of care test, which is still generally relied upon (D. Travers 2005, p.3) became: - 1) Is the damage foreseeable? 2) Is the relationship between alleged tortfeasor and victim sufficiently proximate? 3) Is it fair, just and reasonable to impose such a duty? In terms of the first test, it is clear that if a defendant undertakes, or fails to undertake, his duty in a way he could foresee might cause injury or damage, then a breach of duty of care will occur (Hodgeson and Lewthwaite 2004, p.25). However, if he has undertaken his duty within the normal standard of care anticipated, it is likely that a breach of duty will not exist (Hodgeson and Lewthwaite 2004, p. 81) Recently, these tests were used in a case relating to claims bought by mesothelioma sufferers, claiming employers were responsible employers were responsible for the cause of illness, asbestos, despite the condition having originated decades previously. In Barker v Corus6 the Lord overturned a previous ruling7, stating it was not fair, just or reasonable to hold the plaintiff to a duty of care for events, which happened at a time in the past when it could not have been foreseen as a problem. Similarly, these tests rely upon the common law definition of “reasonable” when defining the level of duty of care. For example, action that caused damage, but was instigated by a minor, is unlikely to be classed as negligent in law, whereas that same action committed by an adult could be chargeable as negligence. (Epstein 2004, p.152) Defense to negligence There are ways in which defendant’s in a case of negligence can mitigate the claim. These fall into four categories. a) Contributory negligence is a partial defence where it can be proved that the plaintiff’s actions were partially responsible for the damage. For example, if a driver is speeding and knocks down a pedestrian who crosses the road without looking carefully, it can be held that, whilst the driver is breached his duty of care, the pedestrian, by his or her action, contributed to the damage. b) Comparative negligence occurs where both parties are found to have breached their duty of care, in which case the level of damage would be apportioned proportionately. For example, In the case of Reeves v Commissioner of Police of the Metropolis (The Times 1999), a prisoner, judged to be in his right mind, hanged himself. The court found that the prisoner had breached his duty of care not to injure himself, but also found that the police had breached their duty of care to a prisoner within their care. c) Assumption of risk comes into force where a plaintiff accepts or acknowledges there will be a risk attached to the actions they are performing for the defendant. In such cases, the defendant could argue a reduction or elimination of their duty by virtue of such acceptance. d) In a case where, whilst the cause for the damage was obvious, but a secondary act caused the injury, such an act can be used as defence (known as intervening cause). Other Torts There are recent examples where the basic principles of the tort of negligence are being embodied into other torts. For example in the case of an assault such as rape, although the perpetrator has been convicted, the law still allows for the victim to seek retribution for the damage caused by her attacker (BBC News 2004). Similarly, cases where neighbours seek damages from those who cause a nuisance are becoming increasingly common. It is no longer seen that the remedy in such cases should be limited to just the criminal or civil retribution. Conclusion It can be seen from the research that, whilst there have been some limitations and reversals in the development of the tort of negligence, as described in the cases of Murphy v Brentwood and Barker v Corus. Although there are ways in which defendant’s can limit or create partial or whole defences against claims under tort of negligence, it is apparent from the continued proliferation of cases, that it is an area of growing litigation. Similarly, it has been shown that duty of care and retribution for damage as defined in cases of negligence are increasingly being used in other tort areas. Persons subjected to intentional acts of tort and nuisance are increasingly seeking civil damages as well as criminal law justice from the proponents of these acts using the standard of duty and care as a core element of their claims. One area of concern where legal practitioners feel difficulties still arise is where duty of care is owed by two persons to the plaintiff, but it is difficult to ascertain with any degree of positivity who was the cause of the damage, or to what extent, if any, eithe party can be held responsible. (Freshfields Bruckhaus Deringer 2002). References Hodge, Sue (2004). Tort Law. Third Edition. Willan Publishing. UK Weir, Tony (2004). A Casebook on Tort. Sweet and Maxwell. UK Hodgson, John and Lewthwaite (2004). Tort Law Textbook. Oxford University Press. Oxford, UK. Epstein, Richard, A (2004). Cases and Materials on Torts. Aspen Publishers. New York Todd, Stephanie (2003). The Slug that Changed the World. BBC Online Scotland. 18 August 2003. Koziol, H and Steininger, B. eds. (2002) European Tort Law (Tort & Insurance Law). Springer-Verlag. Austria. Travers, David (2005). The Corporate Manslaughter Bill. Advice for The Centre For Corporate Responsibility. Temple, London. Freshfields Bruckhaus Deringer (2002). The Fairchild decision – a Donoghue v Stevenson for the 21st century? Legal 500. Recovered 24 October 2006 from http://www.icclaw.com/devs/uk/ev/ukev_074.htm Rod Freeman (2006). Asbestos victims’ long search for justice. The Times. 19th June 2006 House of Lords (1999). Duty of Care – Police Liability for cell suicide. The Times. 16 July 1999. BBC News (2004). Rapist wins £7 million on Lotto Extra. BBC News. Recovered 26 October 2006 from http://news.bbc.co.uk/go/pr/fr/-/1/hi/uk/3554008.stm Read More