Negligence in the Parlance of the Law of Tort - Case Study Example

Name: Instructor’s name: Course: University: Law for business The case given as for the study is a case of negligence under the law of tort. The law of tort is that branch of law which consists of various torts or wrongful acts whereby the wrong doer violates some legal rights vested in another person. The law imposes a duty to respect the legal rights vested in the members of the society and the person making a breach of that duty is said to have done the wrongful act. In the parlance of the law of tort, negligence has two meanings: Negligence as a mode of committing certain torts, e.g., negligently or carelessly committing trespass, nuisance or defamation. In this context, it denotes the mental element. Negligence is considered as a separate tort. It means a conduct which creates a risk of causing damage, rather than a state of mind. In the action for negligence, the plaintiff has to prove the following essentials: That the defendant owed duty of care to the plaintiff. The defendant made breach of that duty. The plaintiff suffered damage as a consequence thereof. As a general rule, it is for the plaintiff to prove that the defendant was negligent. The initial burden of making out at least a prima facie case of negligence as against the defendant lies heavily on the plaintiff, but once this onus is discharged, it will be for the defendant to prove that the incident was the result of inevitable accident or contributory negligence o the part of the plaintiff. If the plaintiff is not able to prove negligence on the part of the defendant, the defendant cannot be made liable. But there is a presumption of negligence according to the maxim ‘res ipsa loquitur’, which means ‘the thing speaks for itself’. When the accident explains only one thing and that is that the accident could not ordinarily occur unless the defendant had been negligent, the law raises a presumption of negligence on the part of the defendant. In such a case, it is sufficient for the plaintiff to prove accident and nothing more. The defendant can, however, avoid his liability by disproving negligence on his part. For the maxim ‘res ipsa liquitur’ to apply, it is also necessary that the event causing the accident must have been in the control of the defendant. When the accident is more consistent with the negligence of the defendant than with any other cause and facts are not known to the plaintiff but are or ought to be known to the defendant, the doctrine applies. Thus, in the given case, Lynne was negligent in performing his duty perfectly and according to the directions of the owner, Susan. In this particular instance, Susan had directed the employees to stack the products in the proper manner and has specifically directed them not to keep the heavy items on the top shelves. Thus it was due to the negligence of Lynne that Carl was injured. Thus, in this case, it can be said that the maxim ‘res ipsa loquitur’ would come to play as it clearly seems from the accident as to what the facts are. Therefore, here the burden of proof lies on Lyne to prove that he was not negligent. Similarly, in the case of the driver, Paul, there is also the use of the maxim ‘res ipsa liquitur’ as it clearly seems that the driver was negligent and thus the burden of proof lies on Paul. It was very obvious that he should have used the brakes which would have avoided the accident. In this case, Paul is liable for his negligent act as he was actually negligent in not using the brakes. He is liable for the damages done to the garden wall of Mrs. Scully and also because of the personal damage done to Mrs. Scully, who was shocked by the incident. Apart from the damages and the tort of negligence, there is also the liability of the owner of the firm who is vicariously liable for the conduct of his employees. Generally a person is liable for his own wrongful acts and one does not incur any liability for the acts done by others. In certain cases, however, vicarious liability of one person for the act done by another person, may arise. In order that the liability of A for the act done by B can arise, it is necessary that there should be certain kind of relationship between A and B, and the wrongful act should be, in a certain way, connected with that relationship. Thus the relationship of a master and servant comes under such a relationship and the master is vicariously liable for the acts done by his servant when he does such a wrong in the course of his duty as directed by the master. The doctrine of liability of a master for the act of his servant is based on the maxim respondent superior, which means ‘let the principal be liable’ and it puts the master in the same position as if he had done the act himself. It also derives the validity from the maxim qui facit per alium facit per se, which means ‘he who does an act through another is deemed in law to do it himself. Since for the wrong done by the servant, the master can also be made liable vicariously, the plaintiff has a choice to bring an action against either or both of them. Their liability is joint and several as they are considered to be joint tortfeasors. For the liability of the master to arise, the following two essentials are to be present: The tort must have been committed by the servant. The servant must have committed the tort in the ‘course of his employment’. It has further been specified in the law of torts that if a servant is not careful in the performance of his duties and his conduct causes any loss to a third party, the master would be liable for the same. Thus, in the given case, it has been seen that although the owner of the firm, Susan, had given special instructions to all the employees as to not to keep heavy things in the upper shelves, yet as Lynne had committed a tort in the course of his employment in the firm, Susan was vicariously liable for the tort committed by Lynne against Carl. Thus Susan would be considered to be liable for the acts of her servant, Lynne, and would also be liable to pay compensation to Carl. Similarly in the case of Mrs. Scully also Paul, the driver, had been in the course of his duty as he was there to deliver the firm’s product when the accident had occurred. Therefore, in this case also Susan, the owner of the firm is liable for the tort committed by Paul in the similar manner as above. But despite all these facts there is yet another point which needs to be discussed. There is a doctrine in England that makes the master free from the liability of the tort committed by his servant. This is called the ‘Doctrine of common employment’. The rule known as the doctrine of common employment was an exception to the rule that a master is liable for the wrongs of his servant committed in the course of his employment. The rule was first applied in 1837 in Priestley v Fowler, developed in 1850 in Hutchinston v. York, New Castle and Berwick Rail Co. and it was firmly established as a part of the English law by subsequent decisions. The doctrine was that a master was not liable for the negligent harm done by one servant to another fellow servant acting the course of their common employment. The essentials for the application of the defence of common employment are: The wrongdoer and the person injured must be fellow servants and, At the time of the accident, they must have been engaged in common employment. The doctrine was supposed to be based upon an implied contract of service that the servant agreed to run risks naturally incident to the employment, including the risks of negligence on the part of his fellow employee. If the harm was caused by te employer’s own negligence, then the employee could recover, unless the employee’s claim was defeated because of his contributory negligence. Mere knowledge of the risk by the workmen was, however, no defence. The doctrine was, however, eventually abolished by the Law Reform (Personal Injuries) Act, 1948, which provided that: “It shall not be a defence to an employer who is sued in respect of personal injuries caused by the negligence of a person employed by him, that the person was, at the time of the injuries were caused, in common employment with the person injured.” Thus in the given case of the firm, the owner is very much liable vicariously along with the negligent persons for the torts of Lynne and Paul committed against Carl and Mrs Scully. Thus both Lynne and Susan and Paul and Susan are jointly liable for the torts and are eligible for paying the compensation for the damages although neither Paul nor Susan will be held liable for the mental shock that Mrs Scully has got, according to the law on negligence. They are only liable for the damages. Reference: 1. Bangia, K R. 2003, Law of Torts, 7th Edition, viewed 3rd December, 2006. Read More