Law of Tort - Research Paper Example

Law of Tort I. Introduction Our English law provides for a venue for redress a legal wrong in the law of tort. The law of tort provides for remedies to parties who have suffered losses or injuries as a consequence of the either the intentional or the negligent act of another party. In the law of tort, in order for the agrieved party to claim damages under this law, the duty of care must be establist between the parties. There must be a clear connection between the parties that the act or the omission of the other party will have some grave consequences on the other. Accordingly, where there is no duty of care, and then there is no right to claim. In Bourhill v Young (1943)1, the court ruled that where the one party becomes morally bound to render assistance to a certain person, an in the passer-by who came to the scene of a motorcycle accident, the duty of care exist and must be satisfied otherwise the person involved shall be liable for tort of negligence if he or she fails to notify the appropriate authorities. The duty of care therefore is a requirement for enforcing the law of tort2. When can we say that a duty of care exists? Our English court, in the case of Donoghue v Stevenson (1932)3, established “The Neighbour test” to gauge the existence of a duty of care. The “Neigbour test” so provides that one must take a reasonable care to avoid acts or omissions that you can “reasonably foresee as having a negative effect or otherwise injurious to your neighbours”4. In determining who shall be considered as “neighbours” under this test, Lord Atkin defined neighbours as “persons who are so closely and directly affected by my act that I ought to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called to question." In the more recent decision of the Court in the leading case of Caparo v Dickman (1989)5, the Court ruled that the test of the existence of the duty of care involves the following questions “(1) was there foreseeability of harm? (2) Does a sufficiently proximate relationship exist between the parties? (3) Is it just, fair and equitable to impose a duty?” 6 Where these questions are satisfied, it can be said that the parties are proximately connected that the acts of the other will have direct consequences on the other parties. II. The case of the Children Our hypothetical case states that the 12 children went on a seaside trip with two teachers and 1 volunteer parent. The wind was rising when they arrived at the place and the teachers elected to take the inland path where it is safer. However, the children pleaded to their teachers to let them take the path by the beach and the teachers conceded. As a result, one of the children fell off the cliff and drowned. The man who attempted to rescue the child also drowned. a. The position of the teachers In assess the liabilities of parties in this incident; let us first take a closer look into the roles of the parties involved. First, let us look into the role of the teachers. Apparently, the teachers in our hypothetical case are the ones who make the final decisions in behalf of the group. As the leaders of the group, the teachers are expected to make prudent decisions to ensure the safety of the children. Here we can clearly see that there is a duty of care on the part of the teachers towards the children. The student-teacher relationship clearly establish the duty of case in the cast at bar. The fact that the teachers noted that it would be safer to take the inland path in the first place showed that they are aware of the dangers involved in taking the path along the beach. Based on the test established in the case of Caparo v Dickman7, there now exist a clear case of foreseeable harm in taking the path by the beach. The fact that the children begged them to take the path by the beach is of no consequence as the teachers still have the final say on the matter. The failure of the teachers to make a sound decision was the proximate cause of the accident, making then liable for damages based on the tort of negligence. In the case of Mr. Tomlinson who tried to rescue the child, the proximate cause of his demise was the negligent act of the teachers; therefore, the teachers may also be help directly liable for the death of Mr. Tomlinson based on the law of tort. Who ca recover damages from the teachers? Generally, the mother of the child can recover damages from the teachers subject to provisions of contributory negligence, which will be discussed in the later part of this paper. The wife of Mr. Tomlinson can also recover damages. When we say damages in tort, this refers to the basic principle of damages for personal injury. In the case of Livingstone v Raywards Coal (1880)8 Lord Blackburn defines personal damages for personal injury in tort as “that sum of money which will put the party who has been injured, or who had suffered, in the same position as he would have been if he had not sustained the wrong for which he is now getting this compensation.”9 Note that according to English law, damages can be recovered by the victim or the aggrieved party in the event where there is breach in the duty of care, loss of amenities on the part of the victim or aggrieved party, the aggrieved party or the victim suffered distress, loss of chances and loss of reputation. The purpose of the right to recover damages is to restore the person to its former position before the accident happened or in cases where such position could no longer be restored, the aggrieved party shall be given compensation for the losses and sufferings that he or she may have suffered due to the negligent act of the other parties. In our case, the teachers shall be liable for physical damages to the child and to Mr. Tomlinson who drowned as well as damages for nervous shock towards the wife of Mr. Tomlinson and to the mother of the child. b. The Position of the Mother Our case so states that the volunteer parent who accompanied the children on the trip was the mother of the child who drowned. Note that the primary duty of care on the child lies on the parents. In our case, the presence of the mother in the group mitigated the liability of the teachers. The mother can be said to have committed the act of contributory negligence, as she was present when the accident happened. According to section 4 of the Contributory Negligence Act of 1945 "Where any person suffers damage as a result partly of his own fault and partly of the fault of any other person or persons, acclaim in respect of that damage shall not be defeated if the fault of the person suffering the damage, but damages in respect of the damages recoverable thereof shall be reduced to such an extent the court thinks fit just and equitable having regard to the claimants share in the responsibility for the damage…".10 Since the mother was present, she could have easily prevented the accident has she insisted that they take the in land path. She should have tried her best to persuade the children and the teachers that it is indeed very dangerous foe everybody to take the path by the beach. If the mother protested and was protests had been overruled, the least that she could do is to make sure that her child is safe by making sure that she is near her during the walk. It must be noted that there are only 12 children involved here and there are 3 adults in the group, meaning, the ratio would be four children fore every adult. Being the mother, she could have easily insisted on her child to keep away from the edge of the cliff or even hold on to her personally. Therefore, even if the mother did suffer nervous shock due to the event, the liability for damages on the part of the teachers shall be mitigated by the fact that the mother committed an act of contributory negligence. c. The Position of the Wife of Mr. Tomlinson Mrs. Tomlinson suffered nervous shock because of the untimely death of her husband. The fact that she gets to watch how her husband died is so traumatic that any person would suffer tremendously. Although drowning is the proximate cause of the death of Mr. Tomlinson, the event that led to the drowning was the decision of the teachers to let the children take the path along beach. Had the teachers insisted that the children take the safer route via the inland path, the accident would not have happened. In the light of this event, the wife of Mr. Tomlinson shall have the right to demand for damages from the teachers for negligence that led to the death of her husband. The fact that Mr. Tomlinson voluntarily went into the water to help the child is not a justifying circumstance that the teachers could take as a defense. Note that based in the case of Bourhill v Young (1943)11, Mr. Tomlinson became morally bound to help the child therefore, his act of trying to rescue the child is but logical. The teachers cannot therefore negate their obligation by taking advantage of the goodness shown by my Tomlinson in trying to rescue the child. d. Position of the Child and Mr. Tomlinson Although these two individuals are already dead, they still have the available remedies against the erring parties. A suit in their behalf can be brought my members of their family. References: 1. Bourhill v Young (1943) 2 KB 669 2. Caparo v Dickman (1989) 2 WLR 316 3. Donoghue v Stevenson (1932) AC 562 4. Dorset Yacht Co Ltd v Home Office (1970) AC 1004 5. Law Reform (Contributory Negligence) Act 1945 6. Livingstone v Raywards Coal (1880) 5 App Cas 25, 39 7. Michael Jones, The Law of Tort, Blackstone Press, 7th edition 2000 Read More