How the Tort of Negligence Could Be Applied - Assignment Example

Running head: TORT OF NEGLIGENCE Name Course Institution Instructor DATE Tort of negligence refers to a breach of duty or a failure of one party to exercise the standard of care required by law, resulting in damage to the party to whom the duty was owed. In other words it may mean carelessness by a party supposed to be responsible. But in 1934 Lord Wright said: ‘In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing.’Lochgelly Iron and Coal Co v McMullan [1934] AC 1 at 25) Negligence suits have historically been analyzed in stages, called elements, similar to the analysis of crimes. A significant concept related to elements is that if a plaintiff fails to prove any one element of his claim, he loses on the entire tort claim. For example, let's assume that a particular tort has four elements. Each element must be proven. If the plaintiff proves only three of the four elements, the plaintiff has not succeeded in making out his claim. (Markesinis & Deakin 2003) Common law jurisdictions may differ a little in the correct classification of the elements of negligence, but the elements that must be established in every negligence case are: duty, breach, causation, and damages. Each is defined and explained in better way in the paragraphs below. Negligence can be conceived of as having just three elements - conduct, causation and damages. More often, it is said to have four (duty, breach, causation and pecuniary damages) or five (duty, breach, actual cause, proximate cause, and damages). Each would be correct, depending on how much specificity someone is seeking. "The broad agreement on the conceptual model", writes Professor Robertson of the University of Texas, "entails recognition that the five elements are best defined with care and kept separate. But in practice", he goes on to warn, "Several varieties of confusion or conceptual mistakes have sometimes occurred." Lucy being an employee of Caring Hands Care Agency, acting on there behalf, taking care of Alf, she accidentally drops Alf in the course of her duty and he breaks his leg. Although Lucy dropped Alf after she strained her back she was still responsible because she accepted a job from Caring Hands Care Agency which involved her travelling to the homes of elderly and disabled people in order to provide personal care services. This involved her doing shopping, laundry, administering medication or washing and dressing patients. Lucy knew that she had a body structure that would affect her performance but she went a head and accepted the job. She was very much responsible for a duty of care. A duty of care is a legal requirement imposed on a person requiring them to stick to a high standard of care while performing any acts that could harm others. Lucy was negligent because her duties fell below the standard of the ordinary reasonable person. Different rules are used if the defendant is a child, a beginner or a professional. Since Lucy was a professional a higher standard was expected from her to take care of Alf. The first element must be established to continue with an action in negligence, it is for the plaintiff to prove a duty of care imposed by law has been breached by defendant. In turn, breaching a duty may subject an individual to liability (Robyn & Phillipa1985) In Caparo Industries plc v Dickman [1990] which is a leading English tort law case on the test for a duty of care. The House of Lords, following the Court of Appeal, set out a "three-fold test". In order for a duty of care to arise in negligence, harm must be reasonably foreseeable as a result of the defendant's conduct the parties must be in a relationship of proximity it must be fair, just and reasonable to impose liability The decision arose in the perspective of a negligent preparation of accounts for a company. Some cases on negligent misstatements had fallen under the principle of Hedley Byrne v Heller. This states that if an individual makes a mistake, he must assume responsibility to the person he makes it to. If he makes it negligently, then he will be liable for any loss which results. In Caparo Industries plc v Dickman [1990] the scope of the assumption of responsibility, and what were the limits of liability were proved. Caring Hands Care Agency being represented by Lucy owed a duty of care to the client Alf. It was 'reasonably foreseeable' that the claimant would suffer if mishandled. According to the court, foreseeability relates to the natural and probable consequences of an act. (Hepple, Howarth, O'Sullivan & Mathews 2000) Alf was an elderly disabled gentleman much care was needed when handling him. But Lucy went a head mishandling him and dropping him to the floor thus breaking his leg. As a professional it was apparently expected of Lucy to foresee the consequences of letting an elderly disabled gentleman drop to the floor, but she was negligent and didn’t care about Alf thus breaking his leg. This was a breach of duty and Alf was entitled to sue. The issue in this case was, therefore, whether plaintiff’s injury was foreseeable under the circumstances. Applying this "foreseeability" principle to the facts of the case, it can be stated that; Since Lucy accepted an offer to work for Caring Hands Care Agency, and she well knew the body structure of herself which could not allow her to perform some duties effectively; she could have taken some precautions and declined the offer from Caring Hands Care Agency but she was negligent in performing her duties of lifting Alf. Therefore creating a foreseeable risk of injury to Alf a client of Caring Hands Care Agency and therefore liable. In the case of Hueston v. Narragansett Tennis Club, Inc., 502 A.2d 827 (R.I. 1986), plaintiff was injured while retrieving a tennis ball in defendant's facility. During the course of play, tennis balls would pass through over a curtain and stick in the wall between a horizontal girder and insulation. Plaintiff injured her finger when she jumped back to clear a lesser girder and caught her ring in the girder where her ball had stack. In her grievance, plaintiff alleged that defendant was negligent in its maintenance and operation of the facility, particularly the exposed girders. Plaintiff testified that she had seen others, including defendant's tennis pros; go up the wall as she had done a number of times to get back tennis balls which became stack in the girders. In reply, defendant acknowledged that it owed the plaintiff a legal duty of care to guard against usual occurrences. However, under the circumstances of this case, defendant contended that it had no legal duty to watch against unusual events, i.e. someone catching their ring on a bare girder. The court found that plaintiff did not necessarily see the risk of injury connected with climbing the wall because she had seen other patrons, including defendant's tennis pros, doing the same act. As a result, the court found that plaintiff had not assumed the risk of injury. In other words, under the circumstances of this case, plaintiff did not necessarily know and instinctively welcome the extent of risk incurred by climbing the girder to retrieve her tennis ball. As a result, the court found that defendant's negligence in allowing exposed girders in its tennis facility was, in part, responsible for causing plaintiff's injury. The same can be applied in our scenario, Alf did not know that Lucy had a back strain and not able to raise him; therefore he had confidence in him when she was lifting him. It was for Lucy to access the situation and see if she could lift Alf with her physical structure, As a result of her negligence she caused Alf to break his leg. Therefore Lucy was responsible for causing Alf’s injury. Alf was entitled to receive "damages", usually monetary compensation, from Caring Hands Care Agency. A relationship of proximity between the plaintiff and the defendant must be there in order for a duty of care to arise (Rush & Ottley 2006). There was a relationship of proximity between Lucy and Alf. It involved the notion of nearness or closeness, a nexus or connection. This is proved when Lucy lifted Alf she physically had a relationship with him and it was her duty of care. This is demonstrated in a relationship such as a professional and his client. Lucy owed a duty of care to Alf her client; she could reasonably foresee that if she lifted him with his overweight nature it was possible for her to drop him. But she ignored the weight factor consequently dropping him. Proximity reveal an assumption by a person of a responsibility to take care of the other person and to shun or put a stop to damage, loss or harm to another, or where a person relies on such care. (Kennedy 2009) Alf relied on Lucy but all was in vain because she was negligent. In Caparo Lord Bridge said: "What emerges is that, in addition to the foreseeability of damage, the necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterized by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other..." It was fair, just and reasonable to impose a duty of care where Lucy representing Caring Hands Care agency assumed a duty of care which created a special relationship between her and Alf when she was lifting him. It was the responsibility of Lucy to take care of Alf and since she was unable leading to Alf breaking his leg, Caring Hands Care Agency was liable and not Lucy. In Capital and counties plc v Hampshire county council (1966) CA; D, a fire officer negligently ordered the sprinkler system turned off in a burning building to which the brigade had been called. It was held that there was no public policy immunity in this situation. The decision was an operational one, not a matter of allocating scarce resources, and given the brigade's exclusive control over the situation it would be fair, just and reasonable to impose on them a duty of care to the property owner.  In conclusion, in the first instance Lucy’s boss was negligent, when he recruited Lucy to such a position knowingly well the job description. The job was certainly tough since it involved her travelling to the homes of elderly and disabled people in order to provide personal care services. This involved her doing shopping, laundry, administering medication or washing and dressing patients. He didn’t take any moment to orient Lucy to the job and he did not conduct a proper interview on Lucy pretending to be so busy. Lucy being an employee of Caring Hands Care Agency acting as an agent, she was expected to work to the best of her ability. She negligently tried to Lift Alf and could not use her common sense and see that Alf was obese and could not lift him. But she went on lifting Alf and dropping him making him break his leg. She had a duty of care which she did not accomplish. Caring Hands Care Agency were liable for causing damages to there client and therefore they were supposed to compensate Alf for the damage caused. List of References Howarth, D., Hepple, B.A., O'Sullivan, J, & Matthews, M.H., 2000, Hepple, Howarth and Matthews' Tort: cases and materials, Butterworth’s, LexisNexis Kennedy, K., 2009, Duty of Care in the Human Services: Mishaps, Misdeeds and the Law, Cambridge University Press, Cambridge Markesinis, B.S., Deakins, S, &Johnston, A., 2007, Markesinis and Deakin’s Tort law, Oxford University Press, Oxford Robyn, C & Phillipa, W., 1985, Duty of care; Law and the direct care worker, Shied press, New York Rush, J & Ottley, M., 2006, Business Law, Cengage Learning EMEA, United Kingdom CARING HANDS AGENCY 49 FEATHERSTONE STREET LONDON EC1Y 7SY UNITED KINGDOM CONTRACT OF EMPLOYMENT AND PARTICULARS OF TERMS OF SERVICE Policies and Procedures Between (THE EMPLOYER) And you (THE EMPLOYEE) NAME: Lucy ADDRESS: MRS. LUCY 47 FEATHERSTONE STREET LONDON EC1Y 8SY UNITED KINGDOM   1: Job title: Nurse 2: Terms and conditions of service This is a permanent and pensionable position 3: Date of starting employment Your employment effect from August 11, 2011 4: Period of employment The employment is until you get to retirement age or until either party gives notice of termination. 5: Probation period You will be on probation for a period of 3 months during which your performance will be assessed. During this period, either party may terminate this employment by 1 month notice in writing, or pay 1 month’s salary in lieu of such notice without assigning reasons thereto. At the end of the probation period, subject to satisfactory performance, the company will confirm your appointment in writing. Should the performance be unsatisfactory as determined by the employer, the employer may terminate the employment, notwithstanding any conditions stated herein (Wilberforce 2010). 6: Salary and allowances Your basic salary will be $10 per hour or $19,200per annum paid monthly. It will be payable by crediting your bank account nominated by you by equal monthly payments. Your salary will be paid by the employer after all the statutory deductions have been made. You will receive a salary slip showing your gross salary, statutory and all other deductions, and the net pay to you by the employer (Holmes 2005). 7: Work place Your will be based at the Hospital of St John and St Elizabeth but the Company reserves the right to transfer you to any of its offices in the State. 8: Hours of work You will be working for 45 hours spread over 6 days a week. The nature of your work may require some variation and extension of these times. The arrangement of your hours may sometime vary. Any changes will be established in writing to you and should be kept with this contract always. You are required to be present for work always during your normal working hours. You must attend work without absenteeism. Given the nature of this work dealing with patients, you are supposed to be punctual at all times. 9: Over time You may be asked to work extra hours sometime, to cover for the absence of colleagues, arising from holiday and sickness. The extra hours will be paid at your current hourly rate. Alternatively, time off may be granted with your agreement and within the practice procedures concerning overtime. Overtime will only be paid if approved by your Supervisor by signing the appropriate forms. 10: Leave 10.1a. Annual leave You will be entitled to 28 working days leave per year served, with effect from the date of your employment, which shall be taken in consultation with your supervisor excluding bank and public holidays. The Company reserves the right to determine the appropriate time when such leave shall be taken. On leaving employment, Payment will be calculated by deducted from any holiday taken in excess of the days (Holmes 2005). 10.1b. Holidays Your are entitled to all official public holidays as designated by the state and all official holiday form must be filled appropriately and signed by your supervisor. 10.1c. Study Leave You are entitled to 10 sessions of study leave per annum. One session comprises 8 hours. Study leave must arranged in advance by the responsible parties for clinical staff and the supervisor so as benefit each party. 10.2. Unpaid leave Unpaid leave is not always a right for employees. Nevertheless, under certain special circumstances, you may be granted unpaid leave of absence after making a prior request to the Company through your supervisor by writing. The Company may or may not grant unpaid leave after considering all the necessary information. 10.3. Compassionate leave Compassionate leave may be decided to you at the absolute discretion of the employer, and should it be approved, payment will be made at the absolute discretion of the employer. 10.4. Special leave arrangements Where suitable, you may be granted leave to carry out public duties required by law. Where such leave is approved, payment will be made by the employer according to the Company policies. 11: Maternity pay The NHS recommends Enhanced Maternity pay for Healthcare Professionals. Under Agenda for Change the rate is 8 weeks and you are entitled for full pay, 18 weeks entitled for half pay plus Statutory Maternity Pay and then Statutory Maternity Pay for the outstanding 13 weeks. When an employee is informed by a qualified medical practitioner that she is expectant, she is supposed to notify her supervisor of this so that prior arrangements may be made (Gillies 2004). 12: Parental leave You are entitled to parental leave according to our countries constitution. Details of the parental leave are enclosed in the additional Practice Staff Handbook issued to you together with this contract. 13: Dependant leave Practice Staff Handbook contains all the details of your statutory entitlements to dependant leave and must be issued together with this contract. 14: Pension On successful completion of your probation, you will become eligible to participate in the staff contributory scheme. The Company will Contribute 10% of your Basic Salary towards a staff contributory Pension Scheme, with an addition 5% to be contributed by you as a payroll deduction. This sum is payable to upon termination of service or upon retirement, as per the terms of the Pension Scheme Trust Deed/ and or Retirement Benefit Act. The Company however reserves the right to change the nature, quality or level of these benefits at any time without reference to you (Gillies 2004). 15: Confidentiality You will not without express written authority from the Managing Director, disclose to anyone outside of the company any matter which has not been made public. You are confidently asked to maintain the privacy of the partners, their staff (in connection with their employment) their patients and of all other matters associated with the practice and this task shall continue even after the contract of employment is ended. The nature of the work is highly confidential and you should be informed that telephone conversations in particular, should be conducted in a confidential way. A salary is a confidential matter between an employee and Company’s, you are required to treat yours and all other staff salary information as strictly confidential. You should be aware of that any breach of this clause will constitute a very serious disciplinary offence for which you may be dismissed. Should you breach this clause after your employment has ended, the organization may take legal action against you (Holmes 2005). 16: Termination of Employment The Company shall be entitled to terminate this Agreement by giving a two calendar months’ notice, in writing, or to pay you two months’ salary in lieu of such notice without assigning reasons thereto. This is without prejudice to the company’s right to terminate the employment summarily for misconduct. If during your period of service you should desire to leave the service of the company, you will be required to give two months’ written notice of your intention or pay the company a sum equal to 2 months salary; or forfeit your salary for the period which your notice falls short of two calendar months (Gillies 2004). 17: Retirement The retirement age is 65 years. Your employment with the employer will automatically terminate at the end of the month in which you will reach this age. 18: Disciplinary and grievance procedures Any grievance should be first discussed with your supervisor. The disciplinary and grievance procedures form part of the Practice Staff Handbook but are not contractual. The employer reserves the right to suspend employees for disciplinary or other reasons. 19: Collective agreements This is scale post Officer 1 Job Grade of the company’s grading scale and your current salary is $ 19,200 Per Annum 20: Personnel policies and working procedures The current policies and working procedures are available in the practice main office. 21: Health and safety The practice policy is contained within the Practice Staff Handbook. 22: Changes to terms and conditions of the contract The employer reserves the right to make reasonable changes to the terms and conditions of the contract and any such changes occurring after issue of this statement will be notified to the employee in writing within 1 month (Gillies 2004). 23: General Provision This agreement supercedes all other agreements, either oral or written, between the parties hereto. No waiver or modification of the agreement or of any covenant, condition or limitation herein contained shall be valid unless in writing and duly executed by the parties hereto. Signatories to this contract I hereby offer an appointment in accordance with the terms and conditions and rules and procedures specified in this document. Signed     For the Company  Head of HR   Date  11 August 2011   I hereby accept the appointment in accordance with the terms and conditions specified in this Contract of Employment as amended from time to time by the partners and notified to me in writing. Signed  Lucy   Date  11 August 2011 Policies and procedures The following are some checklist of appropriate policies and procedures that Caring Hands Agency should follow. Employees should be equipped with knowledge and understanding of the importance of working within there sphere of competence and should seek advice if faced with a challenge. Employees should have a factual knowledge of the current European and national legislation, national guidelines, organizational policies and protocols in accordance with clinical or corporate governance which affect there work practice in relation to the care of individuals. Employees need to record clearly, accurately and correctly information. They also need a working knowledge of the importance of documentation, data, protection act and disclosure of information with consent from the patient and the employer. (b) Statute law refers to the laws that have been passed by the legislature and have been written down and 'codified' for use (Bennion 1983) while Common law refers to the laws that are more or less "that's the way it has always been done." Common law relies upon the body of history and prior cases to establish what the rules are, one of the reasons lawyers study past cases so much. (Holmes 2005) A "common law system" is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different occasions.(Wilberforce 2010) The aspects of both the common law and statute law (including regulations) can been applied to the above scenario. In common law, the body of precedent is called "common law" and it binds future judgments. (Pollock 2000) In cases where the parties differ on what the law is, an idealized common law court looks to earlier precedential decisions of relevant courts.(Chambers 2008) If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the previous decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is primarily distinct from all previous cases, judges have the power and duty to make law by creating precedent. Thereafter, the new decision becomes precedent, and will bind future courts. In our case, if the court finds that they are other similar scenarios like ours it would follow the same reasoning used in the previous decision. In our case, statute law which is fundamentally written is used by the court to decide the case by following all the fact presented before it. Lucy’s boss should have followed all the human resources policies laid down by the company in recruiting new employees. He should have checked if Lucy was qualified to handle her tasks and also it was expected of him to conduct an induction for a new employee. List of References Bennion, F.A.R., 1983, Statute law, Oyez Longman, London Chambers, R.W., 2008, The Common Law: Easyread Super Large 20pt Edition Volume 1 of The Common Law, ReadHowYouWant.com, London Gillies, P., 2004, Business law, Federation Press, Annandale Holmes, O.W., 2005, The Common Law, Neeland Mediallc, Massachusetts Pollock, F., 2000, The genius of the common law, The Law book Exchange, Ltd, New Jersey Wilberforce, E., 2010, Statute Law: The Principles which Govern the Construction and Operation of Statutes, BiblioBazaar, Charleston. Read More