Tort Law and Liability Cases - Essay Example

Tort Law and Liability Cases By Tort Law and Liability Cases Legal history has revealed to us that the expression “the purpose of tort law is to compensate” has indeed been a debated one. Although it is a common argument that the priority of tort law should be to compensate for breaches, in the eyes of Lord Rodger, breaches need not always be remedied. The point Lord Rodger makes in the quotation above, is that establishing breach should not always need to lead to establishing liability. Nonetheless, this essay argues that recent case law shows that public policy considerations are being favored, which is leading to the loss of protection for individual rights. Thus, this essay will support the notion that corrective justice and providing compensation should be priorities of the law rather than raising protection for public authorities. In considering these issues, one should consider some cases that have clarified these arguments. Firstly: the case of Smith v Ministry of Defense, which deals with claims brought against the Ministry of Defense on the basis of negligence for failing to protect the soldiers involved in a friendly fire by failing to provide them with safe vehicles and equipment for patrolling. The allegations also involved the alleged breach of Article 2 of the ECHR that gives the right to protection of human life. On the other hand, the defendants claimed that they should not be held liable for the incidents that occurred based on the concept of “combat immunity” which encompasses that “There is no common law liability for negligence in respect of acts or omissions which occur during combat operations against the enemy and there is no duty to establish a safe system of work during such operations, whether those issues are analyzed from the perspective of combat immunity or under the fair, just and reasonable test. The principle of combat immunity exists because the court cannot realistically or reasonably be required to resolve whether injuries suffered by soldiers could have been avoided by different tactics and if so how to apportion blame.” Nonetheless, the Supreme Court did not agree with the defendants’ arguments and found that the negligence that occurred in this case fell outside the scope of combat immunity. Thus, it was held that it was “fair, just, and reasonable`’ for the Ministry of Defense to be held liable for such acts of negligence. The ministry of Defense failed on their part to give the soldiers the needed training and equipments and so breached their duty of care against article 2 ECHR1. The soldiers are employees who should be cared for in an appropriate manner2 It was held that, although the principle of combat immunity does not allow liability for any negligence during combat, it does not necessarily exclude liability for negligence that occurred during preparation and/or training and planning before the stage of combat. Article 2 ECHR that was contravened states that: “The law ought to protect everyone’s right to a decent living. Individuals shall not be denied of his life without due course except during the operation stage of a court sentence after one’s conviction about a criminal offence that this law provides punishment for.”3 The ministry of defense failed to protect its employees and so deprived them of their lives.4 For the reasons mentioned above, the Supreme Court held that it was a reasonable decision to allow the claim of the claimants to succeed in this particular case, whereas in usual circumstances combat immunity would prevail. The judges however carefully noted that there are some issues that should be taken into consideration when deciding whether or not combat immunity would prevail, such as the time when the alleged negligence took place and the circumstances in which the negligence happened. This case, being that it involved a matter of political interest, divided the court itself and this jeopardized the judgment5. However, the scrutiny came in an effort to apply the human rights policies to the military activities as well6. The court therefore must consider that this sensitive case involved a great negligence against the soldiers executing a work on behalf of their government7. Another issue, which the courts must consider, is being careful in not imposing strict and onerous duties on public officials who are in charge of soldiers whilst still maintaining the public interest and wellbeing of the army. Another case that stresses on the issue of public liability is the leading case Kent v Griffith. This case, however, deals with the liability of the emergency services. There are about three million cases of emergencies handled by ambulances in England in 2007: this number increased to 8.47 million in 2014. 8 However, there has not been a formal law that directs the emergency operations of the ambulances9. In this case, the judges decided that deliberate delayed reaction of an ambulance to an urgent situation contributed to a count negligence against the providers10. In this case, a woman had an asthma attack and called for an ambulance that was very late in arriving although the location of the claimant was not far. The patient’s doctor called for emergency help three times and even received assurance that one ambulance had been sent his way. The ambulance delayed and only arrived about 40 minutes later. The presiding judge termed this as a ‘14-minute-late-response-to-distresses’. As the judge rightly, there has been an increase in the calls on the 999 toll free number. This calls for increased resources for the service providers so that each situation is responded to in record time.11The court held that liability could arise in this case and the defendants were liable for failing to arrive on time. The judge decided that a duty of care had arisen the minute the call was answered and an ambulance was promised. The ministry of health had the obligation to equip the health providers with the needed equipment for emergency situations.12 It was also held that the delay in arriving is what lead to the breach as it caused additional harm to the claimant which could have been avoided had they arrived earlier in time. Moreover, as there appeared to be no issues or circumstances that could have been the reason for the delay, there was no way of excluding liability in this particular situation. This case was a failure of the ambulances help people in need: a violation in the category of omissions13. There is a thin line between the harm brought on another person by handling them carelessly and that brought by failing to aid at all. The jurisprudential divergence of the two violations is reflected in law14to aid in judgment of such cases as this. The main disadvantage to the decision about this case is the fact that no law obligates ambulances which ignore summons to pay for the damages caused for failing to act as needed. The argument is that there was already a bad situation and unless their active and deliberate involvement caused more harm. 15 Some of the medical practitioners have assumed the need to help in emergency situations when they are not formally in treatment contract with the stranger16. The medics can be held liable to professional misconduct for being hypocritical under oath and claim ‘no duty’ in a circumstance that is obviously life endangering17. When this happens, like it was in this case, there is demanded remedy for the patient from the emergency service providers18. The court noticed the directive that calls on doctors to act with haste to persons who need in critical medical attention19. So far, however, there are only professional ethics that handle the medical professionals’ behavior20. There are specific disciplinary actions for failure but no remedy demanded of the medics for such failures on their part21. There is no tortuous claim that can be made on the ambulances and medics.22 The patient suffered a miscarriage and brain effect from the ambulance delay: the judge also termed this delay unreasonable and might have resulted from a battle of prioritization by the emergency service providers23. Had the ambulances acted swiftly, the dangers would be averted quite easily.24 The ambulances were rightly held responsible for remedy: Even the court of appeal approved the liability of the ambulances to pay the patient for the damages caused to her25. The basis of this judgment by Lord Woolf was that the ambulances are different from the police detectives, harbor guards or fire fighters who have no obligation, whatsoever, to care for the patients26. The named officers may only be tasked to a certain level in rescue mission but not as ambulance squad are to patients27. There was no explanation to the plaintiff about the cause of delay for the ambulance as it should be and this raised eyebrows as it were.28 Although the opinion of Lord Rodger seems to oppose the decisions in these cases, it seems to be reflected in the decision of the judges in the case X v Berkshire. In this case it was held that the discretion given to public authorities would protect them from having any claims brought against them as they were able to act in any manner they thought was appropriate within their discretion. Therefore, the reasoning of the judges was that a duty of care could not be imposed on public authorities that were exercising their public duties within their discretion, even though their actions may have caused some harm and/or has lead to unpleasant circumstances arising. Nonetheless, this decision seems to be greatly flawed according to many scholars and has stirred much controversy. Furthermore, it seems to contradict with the Human Rights Act and violate many articles. Consequently, this case was overruled by the case D v East Berkshire. The case of D v East Berkshire set a milestone for public policy liability and overturned the immunity argument that was set out in X v Bedfordshire. It demonstrates that the Human Rights Act is an important factor in determining whether or not a public body’s acts could be actionable at common law. Patients needed to be handled professionally and in situations that would facilitate their recovery: The professor in this case refused to see D because the hospital in which he was admitted lacked a serious care unit and facilities for resuscitation29. Nonetheless, it was also held that it would be unnecessary to impose a duty of care on public bodies where there is a conflict of interest when the victim’s best interest might lead to the suspects in the case being mistreated or suffering some kind of psychiatric illness. Misdiagnosis should not be condoned in law for medical practitioners: allowing this vice to go scot-free would pose as a health risk for the patients30. The cases discussed thus far in this essay prove that although public policy considerations are an important factor to consider, priority should be given towards achieving justice by compensating the innocent party who was expecting a reasonable level of treatment. It is also highly crucial to make sure that a duty of care is imposed carefully on the public officials in a manner that would be useful and fair on both parties in order to maintain justice in society. Tort law intersects other public authorities’ laws in many ways: individuals are always entitled to pursue tort liability as a human right on their part31. The public interest might also affect the result of a case if the matter is publicly accepted: The Berkfordshire case was a matter of public interest and this was considered in arriving at the final judgment32. A right at stake may also demand a liability charge on a defendant: this is irrespective of whether the plaintiff can proof the liable action against him/her.33 The long term tort demand may limit the importance of the compensation and the influence of the tort thereof.34 It is important to balance the plaintiff’s interests against those of the public. Sometimes, a duty might be seen to be due to the public rather than the individual.35 When this happen, a liability in tort is birthed and therefore the individual rights granted.36 In his quotation, Lord Rodger argues against the normative claim that all wrongs should be remedied. In his statement, he is implicitly advocating the inclusion of wider policy considerations and is explicitly presenting a theoretical argument that “the world is full of harm for which the law furnishes no remedy”.In this context, the policy considerations that may be taken into account when deciding whether or not to impose a duty of care are: the resources that are available, defense practices that are used, discretion that is given to public bodies, and justice Some advocates of excluding public policy liability argue that resources are scarce thus they should be used for their own purposes rather than being used for litigation, and that in some circumstances it would be unjust to impose liability on public bodies given the resources that they have available and the high demand for their services (such as the argument that was made in the case of Kent v Griffith). Conclusion The arguments of this paper show that private law does not operate in isolation. To come to a final judgment about a liability case, each lawyer must call many things to think. The public and political interests are some of the things that come into play when liability decisions are being made. Involvement of the human rights provisions are also issues that lawyers have to consider in liability cases to be able to reach an accepted decision about a tortuous case. Bibliography Fairgrieve, D., 2014. Suing the military: the justifiability of damages claims against the armed forces. Cambridge Law Journal and Contributors, New York. House of Lords, 2005. Judgments - JD (FC) (Appellant) v. East Berkshire Community Health NHS Trust and others (Respondents) and two other actions (FC). Parliament publications, Berkshire. McIvor, C., 2010. Getting defensive about police negligence: the Hill principle, the Human Rights Act 1998 and the House of Lords. Cambridge Law Journal, New York. NHS Litigation Authority, 2013. Report and Accounts 2012/13. The stationery Office, London. Rhee, J., 2013. The Tort Foundation of Duty of Care and Business Judgment. (Notre Dame Law Review, New York. Steele, J., 2014. Tort Law: Text, Cases, and Materials. Oxford University Press, Oxford. Wilberg, H., 2010. Defensive Practice Or Conflict Of Duties? Policy Concerns In Public Authority Negligence Claims. Thomson Reuters Limited, New York. Williams, K., 2007. Litigation against English NHS ambulance services and the rule in Kent v. Griffiths. Medical law review, Oxford. Wright, J., 2001. Tort Law and Human Rights. Hart Publishing, New York. Zywicki, T., 2005. Public Choice and Tort Reform. George Mason University Publication, New York. Read More