The Law of Tort - Essay Example

Introduction This paper will examine important aspects of the Law of Tort as it applies to the case study involving five people who had various experiences at Bartford Sea World. The paper will analyse the liabilities and possible claims that can be made by the parties under the Law of Tort. Case 1: Nigel From the case at hand, Nigel voluntarily decided to swim in a dangerous pool that a shark was being kept in. Clearly, there was no notice that cautioned Nigel. There were no life jackets nor life guards to help. The issue is to ascertain whether the authorities of Bartford Sea World was negligent or not. Also, there is the need to ascertain if Bartford is responsible for the injuries on Nigel and will be liable to damages. Rules Negligence is the omission to do something which a reasonable man, guided over those considerations which orderly regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do1. This implies that a person must do what a reasonable person is expected to do in order to avert a situation that could result from a persons action. If an individual fails to do that an injury occurs, s/he will be liable to damages for the injury that was caused. Negligence is established if there is a reasonably foreseeable event that could lead to an injury or damage2 In United States V Carroll Touring Company3 it was held that in assessing damages, there is the need for the court to evaluate the probability of the event happening, the gravity of the event and the cost of preventing the event. Also, in cases where there is a voluntary assumption of risk, a party being sued for damages can invoke the defence of volenti non fit injuria4. This means the individual in question made a voluntary assumption of risk and it could negate a claim on the grounds of negligence. Additionally, the concept of contributory negligence can be used to prevent another party from making claims. And to this end, the role of the claimant, visibility of the issue at hand and possibility of avoiding as well as refusal to avoid it could negate a claim on the grounds of negligence5. Application In the case at hand, Bartford Sea World can be said to have been negligent by failing to provide a sign that showed that the pool had a shark in it. This will have put the entire liability of the negligence fully on Nigel for his act. The possibility of a person entering the pool was also clear and foreseeable. This is because there could be accidental falls into the pool and there could be pranks. Thus, they should have reasonably provided notices and also provided lifeguards and other kinds of assistance and monitoring to prevent people from diving in. However, the management of Bartford can argue that it was reasonably clear that diving into the pool was a dangerous venture. This is because there was a reasonable grounds for any reasonable person to assert that the water was not safe and diving into the pool was risky and life threatening. On the basis of this, the claim for negligence and damage by Nigel could be significantly reduced by the fact that Nigel voluntarily chose to dive into the pool on his own accord. Secondly, there was contributory negligence on the part of Nigel. This is because it is apparent that he knew that the shark was in the pool. Yet, he went ahead to swim in it and got injured. Thus, there will be a high degree of blameworthiness that will be attributed to Nigel for the issue and hence, his claim will be weakened further. Conclusion It is conclusive that Bartford was negligent for not erecting signs that showed that the pool was dangerous and people must not dive into it. They also failed to provide a lifeguard. However, the negligent claim of Nigel will be reduced significantly because of his contributory negligence and blameworthiness by knowingly diving into a dangerous pool just to impress his friends. Case 2: Barbara Barbara dived into the pool and tried to save Nigel. However, due to the weight of Nigel, Barbara failed to bring him up to the surface and she drowns alongside Nigel. The issue is whether Barbara or her next-in-kin can sue Bartford for damages or not. Rules The fundamental rule is that a rescuer who sustains injuries in a given rescue operation is entitled to damages. This is because from Baker V T. E Hopkins6 it was held that a rescuer who carries out her actions in a reasonable manner and got injured in the process can sue for compensation from the employers. The only exception to this rule involves a situation where the rescuer acted outside the normal scope of operation. Application From this case, it appears that Barbara did exactly what she needed to do to rescue Nigel by getting him out of the grips of Katya. However, the sheer size of Nigel and his weight made it impossible for Barbara to bring Nigel up to the surface of the pool. Thus, they both drowned due to the circumstances. On the other hand, if it was Bartfords policy for rescuers to use life jackets and give life jackets to drowning person, then, it will be apparent that Barbara acted wrongly and hence, she will even be partially liable for the drowning. However, it appears that Barbara did her best in the situations and in line with that, she was able to grab Nigel, but lost her life. If that is her case, she can sue for the injuries suffered and if she is not alive, her next-in-kin can sue on her behalf. Conclusion Barbara acted within the reasonable scope and framework of her job. Hence, she is entitled to be treated or compensated for her injuries in line of duty. This means that Bartford is liable for the injuries she suffered as a rescuer. Joe Joe witnessed the gruesome nature of Nigels drowning and due to that, his chronic fatigue symptoms was activated. The issue is whether Bartford can be held accountable for this situation or not. There is a question of whether Joe can sue for psychological injuries or not. Rules Psychological damages are a bit problematic and difficult to evaluate and analyse. Due to this, the courts are adamant in granting damages to victims. The landmark case is Bourhill V Young7 where a pregnant fishwife. In this case, the pregnant fishwife heard a crash and an accident which was negligently caused by Young. She went to the scene and got a psychological shock and miscarried. Her claim for damages was rejected because it was held that the case was not proximate enough to connect a chain of causation to link her up to Young. However, in an earlier case, Dulieu V White8, Mrs. Dulieu was working in a bar and a horse cart crushed into the bar and she miscarried. She made a successful claim on the grounds that she reasonably believed that her life was in danger due to the roaming cart and horse in her place of work. Application Joes view of the episode was clearly traumatic. However, the court will have to ascertain if it will be fair to impute it on Bartford or not. From the facts, it is clear that Joe witnessed a negative and horrifying episode that could affect him significantly. However, in terms of proximity, there was no logical reason for Joe to feel that his life was immediately in danger. This is because from the episode, it is clear that Joe was not really in danger. The Alock case laid the principle that secondary victims of incidents are not to be compensated since it is too remote to impute their psychological injuries to the owners. Conclusion Since there was no real danger and no proximate cause, Joes case cannot be honoured. This is because the chain of causation does not directly link him to the case at hand. Case 3: Zoe In Zoes case, the shark broke its confinement in the glass and causes major injuries to her. There is an issue of whether she can sue for those damages or not. Rules Again, the issue of proximity is important in imputing a matter on a given person for the claim for damages. In Dorset V Home Office9, the officers of a borstal institution took them on a trip and the inmates were left on their own whilst the officers went off to bed. They reasonably knew that the boys were problematic and troublesome, yet they allowed them to go about their normal activities. The boys went out of their rooms and vandalised the yachts of Dorset. It was held that the Home Office was liable for the damages caused within the immediate environment. However, they would not be liable for things that happen far away. This ruling has its roots in Rylands V Fletcher10 where it was stated that “the person who for his own purpose brings on his lands and collects and keeps there anything likely to cause mischief if it escapes must keep it at his peril and if he does not do so, he is prima facie answerable for all the damage which is the natural consequences of its escape”. This forms the basis for the principle of vicarious liability. However, in the case of Palsgraf V Long Island Railroad Company11 it was held that before a party can be inputed for an injury, there must be a proximate cause. This should be reasonably foreseeable to the defendant. Application In this case, the Bartford had an obligation and a vicarious liability to ensure that their sharks were not operating outside the normal scope. They have an obligation to ensure that their glasses are of a nature and level that cannot be broken by their sharks in the normal sense. Thus, they are liable in the ordinary sense for Zoes damages. However, from Palsgraf V Long Island, it is clear that if an explosion is accidentally caused, and it has an effect on a person on the premises, then the issue is not foreseeable and there could be no clear proximity between the injury and the parties involved. Conclusion In this case, Zoe and Bartford will need to argue on the basis of the balance of probabilities. Clearly, Bartford is liable for the failures of maintaining a glass system that was strong enough to guarantee that the shark does not break through it. Thus, if it was established that there could have been a better way of preventing the shark from breaking the glass, then Zoe is entitled for damages. However, based on the level of knowledge, if Bartford took all reasonable steps to ensure that the glass was strong enough, then they can argue that the case was not foreseeable and they did everything that was reasonable. And thus, they can avert claims for damages. Case 4: Suzan Zoe ignored the sign not to film affairs on the premises and films a live version of her horrendous injuries. This was sent directly to Suzan who gets a psychiatric injury on seeing it. The fundamental issue is whether Suzan can claim damages for psychiatric injuries or not. Rules As identified in the Bourhill V Young case, it is apparent that there is the need for proximity in order to impute psychological damages to a given party. In McLoughlin v OBrian12 a friend came to the claimants house and told her of an accident involving her husband and child. The claimant drove to the hospital in an hour and saw her husband in a bad condition and her daughter dead. She suffered a nervous shock and became depressed. It was held that the defendant was liable to the damages because there was a proximate cause because the claimant saw her close family members in a serious condition. Hence, she was liable. Thus, this case establishes that proximity must be established in time and in space. Again, in the Alock Case13, it was held that there must be proximity in terms of relationship. Application From the facts of the case, it was clear that Suzan went through a shock that was directly as a result of the pain and suffering her daughter went through. This is because she saw her suffering in the premises of the defendant who ought to have taken reasonable care to avoid the case. It is therefore clear and evident that there is a direct causation. Conclusion Clearly, Bartford is liable for the psychiatric injuries suffered by Suzan. However, due to the fact that they took reasonable care to limit people from filming incidents there by putting signs out there, there is a level of contributory negligence that can be imputed on Zoe for the capture. This will reduce her claim by a relevant percentage. Books Lunny, Mark and Oliphant Ken. Tort Law. Oxford: Oxford University Press. 2013. Cases Alock V Chief Constable of South Yorkshire [1992] I AC 310 Baker V T. E Hopkins [1959] 1 WLR 966 Bluth V Birmingham Watermarks Co [1856] 11 Ex 781 Bourhill V Young [1943] AC92 Butterfield V Forrester [1809] 11 east 60 103 ER 926 Dorset Yacht Company V Home Office [1970] 472 Dulieu V White [1901] KB 699 McLoughlin v OBrian [1983] AC 410 Palsgraf V Long Island Railroad Company [1928] 248 NY 339 162 NE 99 Ryland V Fletcher [1868] UKHL 1 United States V Carrol Touring Company [1977] 159 f 2d 169 Read More