The Duty or Obligation to Care - Assignment Example

Tort is an area of civil law based on the impression that the defendant has caused undue damage, injury, or loss to the complainant by breach of dutyor obligation to care but absent any malice or bad faith on the part of the defendant. Tort is akin to negligence, the elements of which are as follows: (1) there is a duty or obligation to care other than based on contractual obligations; (2) there is a clear failure to comply with the said duty; (3) the breach caused injury, damage or loss to the complainant; and (4) there are no applicable defences. The duty to care can be summarized in this phrase: every person must be responsible for all the consequences of his acts. The tests for determining the existence of duty or obligation to care were laid down in the cases of Donoghue v. Stevenson, Anns v. Merton London Borough Council, and Caparo Industries plc v. Dickman. In Donoghue, Lord Atkin spoke in his judgment: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in my contemplation as being so affected when I am directing my mind to the acts or omissions which are called into questions.” ([1932] AC 562 at p 580). This is known as the Neighbour Principle. In Anns, Lord Wilberforce identified the loss suffered by the complainants as material physical damage. Two (2) stages were laid down to establish the obligation: (1) whether or not, in a reasonable foresight of the defendant, lack of care may cause damage, injury or loss to the defendant. If in the positive, then there is a prima facie duty to care; and (2) in case of an affirmative answer, is there a necessity to limit the extent of said obligation. An example of the first test is the digging up of a big hole large enough to accommodate an adult. By leaving the hole open, it can be reasonably foreseen that any blind man without any companion may fall on said hole. Undoubtedly, there is an obligation on the part of the one who dug up the whole. On the other hand, an example of the second test is the injury suffered by a suspect of a robbery in the hands of a policeman who caught him in the act but attempted to fight back. Despite the injury suffered by the suspect, the policeman cannot be held liable because the injury was caused by his performance of duty. In Caparo, the two tests laid down in Anns were expanded, adding the following: is it fair to impose upon the defendant the obligation to care towards the complainant? Applying the above principles in the instant case, the liabilities of the parties are as follows: Arsane is liable for his tortious act. As mentioned earlier, every person is liable for the consequences of his acts. Here, Arsane knew as a carpenter that the wooden floor may have inflammable materials. He is supposed to understand that cigarette is not allowed in the workplace because it can become a source of fire. Presumably, Arsane knows his obligation to take good care of the premises as well as the materials therein. A duty to care exists on the part of Arsane, not just as a worker but also as a co-worker. However, since Arsane was very much taken away by the music, he allowed himself to light a cigarette and much worse, threw the same while still lighted, indoors! Such an act of gross negligence is definitely a clear breach of obligation to care. Arsane has absolutely no defence to justify his tortious act. Such an act of negligence caused severe damage. First, to Sir Dino, who suffered loss of properties and potential income. Second, to Benger, who suffered material physical damage due to loss of his right foot. However, Arsane cannot be made liable for the nervous shock suffered by Benger’s wife, twin sister, and mother due to lack of proximity. Although the nervous shock suffered by the three was directly related to the injury suffered by Benger, said damage is clearly unforeseen on the part of Arsane. The latter’s negligence is considerably too remote to the nervous shock, considering that such reactions are evitable. Also, it must be emphasized that the notice posted outside the premises does not in any way exonerate Arsane for his tortious acts because the injury contemplated therein are those which are reasonably connected with the construction. The fire and explosion are not reasonably connected to the construction. Likewise, Jomo is liable for Sir Dino and Benger. As to Sir Dino, Jomo is an independent contractor. Since Arsane is one of his workmen, Jomo is vicariously liable to Benger for the negligence of Arsane. Vicarious liability arises under the common law doctrine of respondeat superior which provides that the superior is responsible for the negligent acts or omissions of his subordinate. As explained by Domat, persons vicariously liable are liable because they are considered as representatives of the negligent or actual doers known as preposez (Loix Civilee, lib. 2 at 132, cited in 12 Manresa, Comentarios Al Codigo Civil Esp AtitOL, 668 [5th ed. 1951]). While the rationale is based on the presumption that the negligence of the employees is the negligence of the employer, however, the negligent act or omission must have been done while in the course of the employment. Both Arsane and Benger are Jomo’s workmen. Thus, Jomo has the duty to see to it that their work conditions are safe. As a contractor, Jomo is aware of the necessary precautions in the workplace. Although the lighting of cigarette is obviously not among the duties of Arsane as a worker, said act was done while the latter was in the performance of his duties. Jomo obviously failed to observe the kind of diligence that is required of him as a contractor. Such failure opened the door for the commission of Arsane’s negligence. Although listening to music and cigarette smoking are acts which are definitely not within the scope of work of Arsane, Jomo is still liable because he failed to make any effective action to stop the same (Hudson v Ridge Manufacturing [1957] 2 All ER 229, Streatfield J). As previously explained, this principle of strict liability is founded on the non-performance of reasonable prudence expected of the persons clothed with responsibility by reason of the civil bond between the latter and the wrongdoer (12 Manresa 670-1). It must be emphasized however that although Jomo is liable, the damages sought to be claimed from him is only in addition to the claim from Arsane. According to Lord Pearce, the liability of employers in case of employees’ negligence is due to the practical reason that the employer has more capacity to answer for the damages. However, in case Jomo answers for the damages to be imposed upon him, Jomo is still liable for damages and the liability of his employer is not available to him as a defence in order to escape from his own liability (ICI v Shatwell [1964] 2 All ER 999). On the other hand, Jomo’s liability towards Sir Dino is direct. If it is not embedded in a contract, Jomo is liable for tort. First, Jomo, has the duty of care towards the latter’s properties. Again, the notice outside the premises does not negate the liability of Jomo. Second, considering that Jomo failed to observe that diligence, the duty to care was violated. It would have been different had Jomo gave the warning and Arsane deliberately violated such warning. There, Jomo will no longer be liable while Arsane will be, not for tort but for a crime because of the evil intent manifested by the presence of malice. However, the evidence is clear that Jomo was guilty of negligence. Third, said breach of duty to care caused economic loss to Sir Dino due to the loss of the structure, as well as damages for lost income. Lastly, Jomo has no basis for defence that could exempt him from liability. The fact that he has the obligation to observe diligence which was breached and which caused severe loss are enough to justify the liability of Jomo. In the same way, Jomo cannot be held liable for the nervous shock suffered by Benger’s wife, twin sister, and mother. Although it was caused by the negligence of Arsane who is under the direct control of Jomo, the same is not a logical consequence of Jomo’s failure to properly supervise Arsane. The proximity or relationship between the parties is lacking. Reference List: Anns v. Merton London Borough Council [1977] UKHL 4, [1977] 2 All ER 118, [1978] AC 728 (12 May 1977). Caparo Industries plc v. Dickman [1990] 1 All ER 568, [1990] UKHL 2, [1990] 2 AC 605 (08 February 1990). Chadwick v British Railways Board [1967] 2 All ER 945, CA Donoghue v. Stevenson [1931] UKHL 3, 1932 SC (HL) 31, [1932] AC 562 (26 May 1931). ICI v Shatwell [1964] 2 All ER 999. Hudson v Ridge Manufacturing [1957] 2 All ER 229, Streatfield J. Inc.com. “Tort Liability Basics: Strict, Vicarious, and Joint Liability”. Retrieved from http://www.inc.com/articles/1999/11/15396.html. 07 December 2011. Jones v Tower Boot Company [1997] 2 All ER 406, CA. Loix Civilee, lib. 2 at 132, cited in 12 Manresa, Comentarios Al Codigo Civil Esp AtitOL, 668 [5th ed. 1951]). Yeats, Ian, Giliker, Paula and Luckham, Mary. “Law of Tort”. 2005. University of London Press. Retrieved from http://www.londoninternational.ac.uk/current_students/programme_resources/laws/subject_guides/tort/tort_ch3.pdf. 03 December 2011. Read More