Law of Negligence - Duty of Care - Essay Example

Law of negligence Name Institution Affiliation Law of negligence 1.0 Introduction Negligence is the failure to exercise due care or diligence that a reasonable or prudent man would exercise in similar circumstances. The law of negligence falls under tort law where it involves harm that is caused by carelessness and not intentional harm (Katter, 2002). A tort is a civil wrong that is in the form of a breach of duty, which amounts to legal remedy that is awarded in damages. Tort law rests upon two principles that state that an act or omission by the defendant interferes with the rights of the plaintiff, which in turn causes damages (Trindade, 2007). Secondly, the interference caused by the defendant gives rise to a cause of action for damages that are as near as possible to the plaintiff’s loss. Therefore, negligence can be defined as doing something that a reasonable man would not have done in similar circumstances or failure to do what a reasonable man would have done that amounts to infliction of harm. 2.0 Background The main idea of the law of negligence is to ensure that people exercise reasonable care when they act by measuring the potential harm that may foreseeably cause harm to other people. Negligence is the principal trigger for liability to ascend in matters that deal with the loss of property of personal injury. Therefore, a person cannot be liable for something unless they have been found negligent or have contributed to the loss of property or injury to the plaintiff (Stuhmcke, 2005). There is more to negligence than just careless conduct caused by the defendant to the plaintiff. Negligence involves a combination of three concepts that involve duty of care that the defendant owes the plaintiff, breach of the duty of care that amounts to a civil wrong and sufficient connection in law, which in other terms is referred to as damages (Australia, 2002). Therefore, for the defendant to be found guilty under the law of negligence all three conditions must be proved by the plaintiff on the balance of probabilities. 3.0 Duty of care 3.1 Reasonable foreseeability This is a duty that us recognized by law that requires compliance with a particular standard of conduct that is meant to protect other people against unreasonable risks. The duty of care in law is a legal obligation that is imposed every individual to avoid causing harm. A duty of care arises when the harm is reasonably foreseeable if care is not taken by a prudent person (Katter, 2002). However, for the duty to arise the must be sufficient proximity between to people for the duty of care to exist. In Australia, the Civil Liability Act 1936 gives qualifications on the duty of care that the defendant owes the plaintiff. 3.2Recognition of duties of care The duty of care is proven by the plaintiff on the balance of probabilities and when no duty is establish then the claim against the defendant fails. The test that is used to determine the existence of duty of care differs depending on whether the incident involves negligent advice or act (Trindade, 2007). 3.3 Neighbourhood factors In establishing the duty of care in negligent acts the test that is used is the neighbour’s test that evolved in the case of Donoghue v Stevenson (1932) AC 562. The case was based on whether or not the injury caused to the plaintiff was reasonably foreseeable, as well as, whether there was a closeness to the proximity of the plaintiff to the defendant. Lord Atkins established that people should take reasonable care to avoid omission which can be reasonably foreseen to be likely to injure one’s neighbours. The case raised the question as to who a neighbour is in law. Lord Atkins answered by stating that neighbours are all persons that are closely or directly affected by the omissions or acts of the defendant which he or she ought to have reasonably foreseen. The neighbour’s tests established the first principle of negligence which states that reasonably foreseeable harm must be compensated. Donoghue V Stevenson case was upheld in the case of Grant V Australian Knitting Mills (1933) 50 CLR 387. In determining the duty of care negligent advice, the courts used the Shaddock and Associates V Parramatta City Council (1981) 150 CLR 225. The case is based on whether the advice given on a serious matter, and the plaintiff relied on the advice that ended up causing him or her harm (Tomasic, Bottomley & McQueen, 2002). 3.4 Policy factors There are three departure points that are required to establish a duty of care in negligent advice, and they include first, negligent words cannot cause loss or harm on themselves unless a person relied upon them. Secondly, it is not uncommon for people to make statements on a social gathering carefully than when they are giving advice on a professional level (Clarke, 2008). Lastly, words may foreseeably receive coverage that the application of Donoghue V Stevenson may lead to many claims; hence, large amounts of damages. 4.0 Standard of care 4.1 Reasonable person standard In order to establish whether a person has breached a duty of care it is imperative to understand the reasonable person standard (Stuhmcke, 2005). In that, when the duty of care is established to be in existence then a reasonable standard of the duty is set for a reasonable person. It is expected that the defendant should take reasonable care or act as a reasonable person would in similar or same circumstances. To enable the courts to determine whether a person is reasonable the bench devised the following attributes. They include intelligence where there is a presumption of average intelligence, where a person cannot be judged with the same standard of intelligence as the others, because some people have above average intelligence while other have below average intelligence (Hodgson, 2008). The two will be judged according to the standard of a person with average intelligence. Secondly, there is skill and knowledge where there is a presumption of a definite level of skill and knowledge that is expected on person in the same position, qualifications, trade or profession of the defendant. The standards of knowledge and skill are objectively set by the community and not the prevailing standards of the profession. For example, a teacher’s conduct is gauged on how a reasonable teacher in the same circumstance or situation would have acted. 4.2 Breach of standards- guidelines To help the courts determine breach in the standard of care there has been various guidelines that have been established to that effect and will be discussed as follows 4.2.1 The Probability of harm The probability of harm was established in the case of Bolton V Stone (1951) AC 850 the House of Lords established that a defendant is not negligent or does not breach the duty of care is the damage to the plaintiff is not a reasonably foreseeable consequence of his actions (Tomasic, Bottomley & McQueen, 2002). Therefore, where there is the probability of harm more or greater care should be taken because if greater standard of care is not taken by a reasonable person their probability of greater harm. 4.2.2 The seriousness of possible injury When it has been established that a person who engages in serious activities may cause consequences of injury greater degree of acre should be shown to avoid the likelihood of serious injury (McDonald, 2007). Therefore, the standard of care in this case is great, and it be shown by a reasonable person in their actions. 4.2.3 The cost and opportunities of reducing/avoiding In the guidelines provided by the court, they establish that when there is a risk great cost, and difficulty in avoiding risk and the actual risk is small then it means that there is less likelihood of a breach and vice versa. 4.2.4 The value of defendant conduct In this case, when there is less economic or social value of the defendants conduct the likelihood of a breach of conduct is great and when there is great economic or social value in the defendants conducts the likelihood of a breach of the standard of care is less. 4.2.5 Conformity with established standards When there is established standards in any trade then, the defendant involved in the trade has a great standard of duty of care compared to non-conformed standards. 5.0 Sufficient connection in law In the law of negligence, three elements must be established and after established a duty of care and the standard of care that was breached there is a need to make a sufficient connection in law (Davies, 2008). To fulfil the third essential in negligence, the two elements are established first to ensure that there are causation and remoteness. 5.1 Causation In order for any defendant to be held liable for their actions or omission, it has to be established that they cause loss or damage to the plaintiff (Madden, 2008). The courts use a different test to establish whether the defendant caused any harm, loss or damage to the plaintiff or damage of property. The tests include the ‘But for’ test, the “common sense” test and Novus actus interveniens 5. 1.1 The ‘But for test’ This test was formulated by Lord Denning in the case of Cork v Kirby Maclean (1952), 2 ALL ER 402. Lord Denning, established that if a person can state that the damage would not have happened but for the fault of the defendant then that fault is the cause of the damage. However, if a person states that the damage would have happened just the same way then the defendant is not at fault (McDonald, 2007). Therefore, the fault or the omission or act by the defendant is said to be the cause of the negligent act. However, there are some limitation to the, ‘But for test’ and they include where the tests supports irrelevant but for circumstances then it cannot be accepted in court. The test is sensitive to the right questions being answered, as well as, the causation chain that leads to many contributing factors. 5.1.2The common sense test The common sense tests were established because of the unreliability and limitations of the ‘but for test’ where it was established the questions should be asked on the balance of probabilities (Davies, 2008). Where it can be asked directly whether the defendants omissions or acts contributed to the plaintiff’s loss of damage. 5.1.3 Novus actus interveniens Novus actus interveniens is a Latin word meaning a new intervening act that may be responsible for the harm or damage to the plaintiff (Madden, 2008). These are actions that may break the causation chain; hence, making the defendant not liable for the losses or damages suffered by the plaintiff. 5.2 Remoteness 5.2.1 Test of reasonable foreseeability Remoteness is also referred to as legal causation and it is established to ensure that the defendant is not exposed to “liability in an indeterminate amount for an indeterminate time to an indeterminate class” as stated by Cardozo, J. Remoteness or legal causation seeks the amount of damages for which the defendant is liable (McGlone, 2009). The concept of remoteness was established in the case of Jaensch V Coffey (1984) 155 CLR 578. Remoteness was also established in the case of Wagon Mound No 1 where a defendant can only be liable for two kinds of damages that were reasonably foreseeable. 5.2.2 Eggshell skull rule as a qualification to remoteness The Eggshell Skull rule qualifies the issue of reasonable foreseeability in relation to personal injury. The rule establishes that a person must take their as they found them in that when one type of damage is reasonably foreseeable that amounts to personal injury, then the defendant is liable for all other injuries that are actually suffered by the plaintiff. 6.0 Analysis of sufficient connection in law Establishing a connection between duty and breach of duty of care is important because it helps in realizing whether the defendant is guilty of his or her acts or omissions. There is a need to establish what caused the damage or injury to the plaintiff. 6.1 Causation Causation is a complex question that is assessed by purpose and only relatively simple questions are posed. In the case of Cork v Kirby Maclean (1952) 2 ALL ER 402 Lord denning formulated the ‘but for’ test that is useful in determining causation in the law of negligence. The ‘but for’ test is important because it establishes whether the defendant was at fault when the act or omission occurred to the plaintiff (Mendelson, 2007). According to Lord Denning, if the defendant states that a damage would not have occurred but for a particular fault then the fault is the cause of the damage. However, when a plaintiff claims that the damage would have happened the same way fault or no fault it means that the fault is not the cause of the damage. In the case of Barnett v Chelsea &Kensington Hospital Management Committee (1969) 1 QB 428 the ‘but for’ test was used to establish causation in tortious liability. Where Mr Barnett went to the hospital where he was complaining of having severe stomach pains and vomiting. The patient was seen by a nurse who called the doctor on duty and the doctor to the nurse to send Mr Barnet home and contact his general practitioner in the morning (McGlone, 2009). However, the patient died five hours later from arsenic poisoning and had the doctor attended to him and examined his condition he would have been able to save. The hospital was not held liable because the doctor’s failure to examine the patient did not amount or cause his death. However, if the results occurred that but for the doctors failure to examine the patient the death would have occurred the hospital would have been held liable. Therefore, the ‘but for’ test examines the cause or the fault defendant in causing the negligent act. However, there are various limitation to the ‘But for’ test that include the support of irrelevant but for circumstances (Australia. 2002). For example, in practice if two practice light up a fire independently and the fire ends up burning a house they would be held liable. However, when using the ‘but for’ test the two are not liable for the fire that burns a house (Forrester & Griffiths, 2010). Secondly, the test is sensitive to the questions that are being asked, for example, when a police car is damaged by a tree in the forest where the police are chasing a thief the thief cannot be held liable. This is because if the police was on patrol on the same area and a tree falls it would have amounted to the same results (Stephenson, 2012). Therefore, the greater the causation chain between the defendant and the plaintiff involving various contributing factors the greater the limitation in the ‘but for’ test. 6.2 Limitation of the ‘But for’ test The limitations that are established in the ‘but for test’ led to the emergence of the Common sense test in the 1990s where there was a preferred approach of asking whether the defendants actions contributed to the acts or omissions that led to the plaintiffs loss or injury (Hodgson, 2008). This is to say that common sense should be used to establish whether the defendants conduct caused plaintiffs harm this was established. In the case of Bonnington Castings Ltd V Wardlaw (1956), AC 613 the plaintiff contracted pneumoconiosis by inhaling air that contained small particles of silica during his course of employment. The defendant did not provide extractor fan, and he was in breach of a statutory duty because if the defendant had installed an extractor fan, it would have reduced the amount of silica particles that the plaintiff inhaled (Stewart, 2009). The court held that the burden of proof was left on the claimant to prove that the defendant was guilty of exposing him to the dust that contribute to his illness. In these case, although the burden of proof was left on the claimant solely it is common sense that the dust inhaled by the defendant was the main cause of the illness that the claimant illness. The last test that is used to establish causing is the Novus actus interveniens or a new intervening act. This means that when the chain of causation s broken then the defendant cannot be held liable for the losses that the defendant may suffer (Mendelson, 2007). Where one act follows another, the law considers the second act to be the true cause of the damage because that act has broken, the chain of causation extinguishing the effect of the first act. In the case of Scott v Shepherd (1773) 2 WM. BI. 892 it was held that neither the intervening act broke, the chain of connection nor both the defendants acted in and instinctive and natural way to avoid the damage themselves. 6.3 Remoteness of damage The case of Wagon Mound No 1(1961), set the proper test of the remoteness of damage. The established that whether the defendant could have reasonably foreseen the type of damage the defendants were being sued for they could have been more cautious (Forrester & Griffiths, 2010). On the hand, foreseeability of the way damage was caused by the plaintiff was established in the case of Hughes V Lord Advocate (1963) A.C 837 where it was held that the precise manner in which damages were caused did not leave to be foreseen. In that, so long the defendant could reasonably foresee damage it could not be remote. Therefore, the question arises as to how remote their consequences is to cause harm to another person. A person’s negligence can be too remote of another’s harm if one would not have reasonably foreseen it coming (Stephenson, 2012). The major idea of establishing remoteness is to establish whether a person foresaw something bad was happening and ensure that they avoid it. For example, in the case of Palsgraf V Long Island Rail Road Co the plaintiff was hit by the scales that feel on her while she was waiting for a train in the platform. The reason the scales fell was because of a far-away commotion as the conductor was running to help a man who was departing from the train. In the ruling, the judge decided that the defendant a railway company was not liable for an injury that was suffered by a bystander. The concept of remoteness was also established in the case of Jaensch v Coffey (1984) 155 CLR 578. Mrs Coffey, the wife of a policeman, suffered from a nervous shock injury from a motor after of a motor vehicle that was involved in a collision. The wife was not in the actual accident scene at the time of the collision. In its ruling, the court held that there was sufficient proximity between the plaintiff and the defendant who caused the collision, and it was reasonably foreseeable (Stewart, 2009). Additionally, the Eggshell Skull rule that takes the maxim “the defendant must take his victim as he finds him” the rule qualifies on the issue of reasonable/ remoteness foreseeability in relation to personal injury (Clarke, 2008). Therefore, when the injury of the plaintiff is foreseeable then the defendant must leave the patient as he finds him as he or she will be liable for all injuries suffered. 7.0 Conclusion Negligence is said to be the failure to exercise due care that a prudent person would exercise in a similar circumstance. The main idea of negligence and having the law of negligence is to ensure that people exercise reasonable care, when they act at the same time taking care of the potential harm that may foreseeably cause harm to other people. Additionally, the law of negligence give people the notion of being good neighbours because anything that a person does that affects the other negatively can amount in a civil suit in the law of negligence. Negligence is established through civil litigation where if an injured person proves that the defendant caused or acted negligently. Thus, causing harm or injury to the defendant the plaintiff can recover damages to compensate the harm caused by the plaintiff. Compensation that is given to the plaintiff can be for causing harm to the body, financial status, property, mental well-being and intimate relationships. However, in order for the plaintiff to get damages or compensated for the harm or loss that has occurred to him, or her facts must be proven to show that the defendant acts or omissions caused harm to the plaintiff. As discussed earlier, there are three basic elements that are used to establish whether the defendants has acted or omitted to act the way a reasonable man should act in a similar situation or circumstance. First, the plaintiff must prove on the balance of probabilities that a duty of care existed between the defendant and the plaintiff. Secondly, the standard of care must be proved to establish whether there was a breach in the duty of care. Lastly, the plaintiff must prove a sufficient connection in law in relation to the injuries suffered and whether they were caused by the defendant. By establishing the three elements, the courts, can establish liability in the law of negligence where damages are awarded to the plaintiff. 8.0 References Australia. (2002). Review of the Law of Negligence report. Parkes, A.C.T: Department of Treasury. Clarke, A. (2008). Torts: A practical learning approach. Chatswood, NSW: LexisNexis Butterworths. Davies, M. (2008). Torts (5th ed.). Chatswood, NSW: LexisNexis Butterworths. Forrester, K., & Griffiths, D. (2010). Essentials of law for health professionals. Chatswood, N.S.W: Mosby/Elsevier. Hodgson, D. (2008). The law of intervening causation. Aldershot, England: Ashgate Pub. Katter, N. A. (2002). Duty of care in Australia. Sydney: LBC Information Services. Madden, B. (2008). Australian medical liability. Chatswood, NSW: LexisNexis Butterworths. McDonald, B. (2007). Cases on torts (4th ed.). Annandale, NSW: The Federation Press. McGlone, F. (2009). Australian torts law (2nd ed.). Chatswood, NSW: LexisNexis Butterworths. Mendelson, D. (2007). The new law of torts. Melbourne, Vic: Oxford University Press. Stephenson, G. (2012). Sourcebook on tort law. Hoboken: Taylor and Francis. Stewart, P. (2009). Australian principles of tort law (2nd ed.). Annandale, NSW: The Federation Press. Stuhmcke, A. (2005). Essential tort law (3rd ed.). Coogee, NSW: Cavendish Publishing (Australia). Tomasic, R., Bottomley, S., & McQueen, R. (2002). Corporations law in Australia. Sydney: Federation Press. Trindade, F. A. (2007). The law of torts in Australia (4th ed.). Melbourne, Vic: Oxford University Press. 8.1List of cases Barnett v Chelsea &Kensington Hospital Management Committee (1969) 1 QB 428 Bolton V Stone (1951) AC 850 Bonnington Castings Ltd V Wardlaw (1956) AC 613 Cork v Kirby Maclean (1952) 2 ALL ER 402 Donoghue v Stevenson (1932) AC 562 Grant V Australian Knitting Mills (1933) 50 CLR 387 Hughes V Lord Advocate (1963) A.C 837 Jaensch V Coffey (1984) 155 CLR 578 Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (1961) UKPC 1, (1961) AC 388, (1961) 1 All WR 404 Palsgraf V Long Island Rail Road Co 248 N.Y. 339; 162 N.E.99: 1928. N.Y. LEXIS 1269;59 ALR.1253 Scott v Shepherd (1773) 2 WM. BI. 892 Shaddock and Associates V Parramatta City Council (1981) 150 CLR 225 Read More