The Tort of Negligence as Historical Development - Essay Example

Without a doubt police and other legal professionals owe a duty to isolated individuals and a restrictive group of individuals but they do not owe a private legal duty to the public as a whole. As such, the police are granted immunity from civil prosecution under the tort of negligence when they are acting in execution of their duty. The scope and ramifications of this immunity involves immunity from prosecution which arise as a means of negligent actions on the part of the police. First and foremost, negligence according to the English law of torts is defined as a perverse breach of duty by one person to another. There are four inherent elements to this negligence. These elements include the notion that there is a duty to exhibit a reasonable amount of care when dealing with another individual, the breach of that duty, the notion that the breach of that duty caused physical harm to another individual and finally, the breach did in fact cause harm from a legal standpoint. In order to examine the police immunity with regards to breach of duty within the realm of the tort of negligence, it is prudent that we examine the background of breach of duty and the charge of negligence resulting from it.1 Tort of Negligence—Historical Development The tort of negligence like all other legal causes in common law arose out of a necessity based on reason wherein many different actions were brought based on the fault of individuals with regards to inflicting harm on others as a direct result of carelessness. It dates back to the case of Heaven v Pender (1885). This was the first case wherein negligence was alleged wherein Pender who was a dock owner charged with the responsibility of putting up a staging outside of a ship owned by another party. He placed the staging up. An employee, who was subcontracted to paint the ship, mounted the staging and was hurt when one of the ropes supplied by the defendant broke and caused the plaintiff to sustain injuries. The plaintiff then brought a suit against Mr. Pender as Mr. Pender did supply the defective rope that eventually broke. Additionally, there was evidence that the rope had been scorched and there was prior knowledge that the rope was unfit for supporting the staging. The judge in this case ruled for the plaintiff and established a precedent with regards to negligence arising from a breach of duty.2 Yet another early case in establishing the tort of negligence is the case of Le Lievre v Gould [1893] which called to task the notion of professional negligence. Professional negligence according to common legal lexicon is the act of negligence perpetrated by an individual who represents him/herself as having above average skills or abilities. The facts in this case were such that the mortgagees of the interest in a building advanced money to the defendant, Mr. Gould who was the surveyor of the building. The money was advanced periodically with no predetermined consistency and there was no contract established between the mortgagees and the surveyor. It was determined that the certificates issued by the surveyor contained fallacious statements with regards to the progress of the work on the building. The surveyor was absorbed of all liability as it was determined that there was no fraud on the part of the surveyor. The question of law was whether the defendant owed some duty to the plaintiff. In this case, Lord Esher ruled that "A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them."3 The notion of breach of duty was solidified in the case of Donoghue v. Stevenson (1932) when Mrs. Donoghue who was a patron at a public bar located in Paisely, Great Britain consumed a drink of ginger beer containing a decomposed snail and subsequently got sick. This initiated a law suit under the precedent setting case of Donoghue v. Stevenson ([1932] All ER Rep 1; [1932] AC 562; House of Lords) and was tried in front of Justices Lords Buckmaster, Atkin, Tomlin, Thankerton and MacMillan. The facts of the case were such that in consuming the ginger beer, Mrs. Donoghue did not see the snail as it was not visible because the ginger beer was contained in an opaque bottle. The ginger beer was bought for Mrs. Donoghue by a friend and neither the friend who bought it nor the shopkeeper who sold it was aware of the presence of the snail. It was presumed under the tenets of tort law that the manufacturer, Mr. Stevenson was negligent in the preparation of the ginger beer which subsequently led to Mrs. Donoghue case of gastroenteritis. The members of the House of Lords agreed that Mrs. Donoghue did in fact have a valid claim, but they disagreed when it came to the rationale behind the validity of the claim. Lord MacMillan, thought that the case should be tried under the tenets of the product liability while Lord Atkin felt that it should be argued based on the fact that individuals owe a duty of reasonable care to their neighbors. Lord Atkin’s argument was set forth using the Ten Commandments and specifically pointed to the notion that "thou shalt love thy neighbor." This was precedent setting in that Lord Atkin created a doctrine which delineated that we should not harm our neighbors and if harm is brought to our neighbors, the offending party owes a duty to monetarily compensate the party who was harmed by his/her actions4. General Principles of the Duty of Care Under the tenets of the tort of negligence, there are a number of component to be considered. The first component is the Neighbour principle as delineated by Lord Atkin in the case of Donoghue v. Stevenson. This principle is based on the notion of ‘proximity’ and the ability to reasonably foresee an impending danger. Under the Neighbour principle an individual must take reasonable care to avoid acts or omissions which he/she can reasonably foresee would be likely to injure his/her ‘neighbour’. In legal lexicon a ‘neighbour’ is defined as any person(s) who are so closely and directly affected by an individual’s act that one must reasonably see that his/her actions hold the potential to affect that individual. In so doing, an individual is precluded from taking an action which harms any individual in such close proximity.5 In attempting to ascertain whether the necessary proximity and foreseeablilty tenets have been met, the Anns Test (as established in the case of Anns v. Merton London Borough Council [1977]). The Anns Test is a dual stage test as delineated by Lord Wilberforce. The two stages of the test include the following: 1. First and foremost, there must be‘sufficient relationship of proximity based upon foreseeability’ 2. Considerations of reasons that there should not be a duty of care.6 The specifics in this case were such that the plaintiff bought an apartment only to discover at a later date that the foundation of the apartment was defective. The role of the defendant in this case was that the defendant supervised the compliance with Building Regulations when the apartment was being built. In supervising the building for compliance the defendant failed to notice the faults in the foundation. The ruling in this case was that by virtue of being a public body, the defendant was held to the precedents and statues of public law and not those of private law. In so doing, the defendant was not liable under the tenets of the tort of negligence.7 The ‘Just & Reasonable’ test is another general principle with regards to the Duty of Care. Under the ‘Just & Reasonable’ test, the ability to foresee damages along with the proximity between the parties and the notion that there is a relationship between the parties wherein one party holds duty to the other must be present. This notion was put to task in the case of Peabody v Parkinson [1984].8 The Tort of Negligence As It Relates Public Bodies in General and the Police in Particular Police, prosecutors and prison authorities may owe a duty owe a duty to isolated individuals and a restrictive group of individuals but they do not owe a private legal duty to the public as a whole. The case Hill v Chief Constable of West Yorkshire [1989] served to establish the law with regards to the immunity under the Tort of Negligence. The specifics of the case were such that an action was brought against the police for failing to pursue and adequately assure the incarceration of a serial killer. The case was brought in the name of the last victim of the serial killer. The case highlighted the fact that the police failed miserably in procuring the arrest of the serial killer earlier and thus were negligent in the death of the last victim, Mr. Hill.9 The ruling in this case was such that the police were absorbed of any negligence as a finding of negligence on the part of the police would impede the work done by the police and would establish a case for the possibility of compensation under the Criminal Injuries Compensation scheme.10 Despite the fact that the case of Hill v Chief Constable of West Yorkshire [1989] has been instrumental in setting the course for further litigation with regards to the Tort of Negligence and duty of the police, the scope of the police immunity has been found to be a breach of the European Convention on Human Rights – Osman v United Kingdom [1999]. The implications of this are such that the blanket immunity offered the police as a direct result of the Hill v. Chief Constable of West Yorkshire [1989] may be interpreted as facilitating unequal restriction to the litigant with regards to the right of access to a court. This breaches article 6.1 of the European Convention on Human Rights. The article states: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice (Council of Europe, 2005). It is prudent to note that the suit brought on behalf of Mr. Hill could have been borne out of an assumption that there was some responsibility on the part of the police especially in light of the fact that an individual may be vulnerable to harm as a direct result of police action or inaction. This effectively and efficiently establishes a ‘special’ relationship wherein the notion of ‘proximity’ as delineated by Lord Atkin in the case of Donoghue v. Stevenson (1932). Essentially, it could be argued that by virtue of the circumstances a greater proximity was created between the police and the individual victim when compared to that of the members of the public at large. In establishing the notion that the neighbour rule may be applicable, foreseeable harm may also prove to be applicable. In so doing, a basis for duty of care may be attached to the police. In that it may be deemed fair, just and equitable to impose a duty of care on the police.11 The case of Elguzouli Daf v Commissioner of Police of the Metropolis [1995] proved to be instrumental in delineating the scope and ramifications of the immunity afforded to the police under the tenets of Crown immunity. Crown immunity is an established common law principle by which Crown bodies are afforded general and widespread immunity from criminal liability. This immunity is afforded in both criminal and regulatory offences. Essentially, this immunity precludes prosecution in cases of gross negligence as in manslaughter as well as regulatory offences as in the case of a breach in the health and safety legislation. In the case of Elguzouli Daf v Commissioner of Police of the Metropolis [1995] two young men, Mr. Elguzouli and Mr. Daf were arrested and held in police custody for 25 and 85 days respectively. They were subsequently released when the Crown Prosecution Service decided to discontinue proceedings against them. In response to being detained a claim was brought on the grounds that the men felt that they were maliciously prosecuted and falsely imprisoned12. The findings of the case were such that the Crown Prosecution Service owed no duty of care to a defendant in its conduct of a prosecution. It is prudent that a distinction be made between the immunity rule which also covers witnesses and whether duty of care is owed by the prosecution. In so doing, it is necessary to make salient the notion that the police may not be sued for negligence in respect of their activities in the investigation and suppression of crime.13 Another case which called to task the notion of duty of care under the tenets of the tort of negligence is the case of Home Office v Dorset Yacht Co. Ltd. In this case, ten juvenile detention centre trainees trainees were working on an island in the harbour. The island was controlled by three officers. One night several of the trainees escaped after the officers had gone to bed. The trainees took a yacht. The yacht subsequently collided with another yacht causing property damage. A case was brought in order to determine whether the officers owed a duty of care to the individuals whose yacht was damaged as a result of the accident caused by the trainees. The findings of the case indicated that there was vicarious liability against the Home Office since the trainees were taken to an island, the detention center officers should have foresaw the likelihood of escape in the event that they failed to exercise proper supervision. The officers were free from liability, however, the tenets of prima facie held the governing body responsible for the actions of the officer. The significance of this case are such that it served to clarify the scope and ramifications of the ‘neighbour rule’ as well as establishing the framework on which further delineation can be made with regards to the duty of care.14 The law of negligence is especially prone to influence by moral, social, economic and political values. As society becomes more complex and technologically advanced, novel circumstances giving rise to negligence claims arise. Policy then becomes determinative. It is this influence of policy that explains the uncertainty and changes to the law of negligence since 1932. However, judges are reluctant to confront the effect of policy on their decisions and to explain their reasons by reference to its influence. It is important that judicial reliance on policy be fully and transparently reasoned. There are two vexed questions inherent in the judicial application of policy; when are community values to be applied and how are they to be determined? This article discusses these issues, the changes that have been made and the capacity of the law to satisfy community needs as regards negligence and whether legislative change is appropriate. The Ramifications of the Tort of Negligence After having examined the scope of the tort of negligence as it relates to both common citizens as well as individuals who are immune under the tenets of Crown immunity, it is prudent that we understand that some of the principles of the tort of negligence still remain law remain binding to date. We cannot doubt the fact that it has undergone a radical evolution which transcended from the establishment of the ‘neighbour rule’ to notion of blanket immunity as established in the case of Hill v Chief Constable of West Yorkshire [1989]. This course, however, has been erratic to a great degree. This erratic nature is evident in the case of Home Office v Dorset Yacht Co. Ltd [1970]. This is extemporary of need to return to a time of consistency under the law as well as the notion that precedents serve as the foundation on which equitable treatment under the law is established. Despite the lack of consistency in the law of negligence, this speciality proves to be one of great interest to the masses. Much of this interest can be attributed to the fact that the tort of negligence is one that is fairly easy to comprehend. It does not require an understanding of esoteric rules in order to understand the specifics of a given case as well as the ruling. This area of law is one which does not require any predefined knowledge and as such, Lay persons can be reasonably assured that they are qualified to express opinions in the area. Additionally, cases of negligence tend to garner great interest in the media—be it print or television. The fascination with these cases is the fact that they originate during the normal course of our daily activities and their assessment can be attained by the use of common sense. While the case law with regards to negligence is fairly straightforward, they fail to explain and account for the changes in case law over the course of the evolution of the tort of negligence. In so doing, it does not explain the principles involved along with the judicial approaches utilized to remedy cases when it is clear that duty has been breached when one has been established. Much of this can be traced by to the establishment of the ‘neighbour rule’ in the case of Donoghue v Stevenson. Since the determination in this case, it is virtually impossible to litigate a case involving the tort of negligence without referring to the decision made by Lord Atkin when he resorted to the establishment of negligence based on the ‘proximity’ of the parties. In resorting to the bible, Lord Atkin set a standard which implied social and financial responsibility for those we come into contact with. The scope and ramification of this contact essentially translates to liability which has a monetary figure attached to it. On a much wider scale, we have seen that the law of the tort of negligence is one that has blatantly violated the Human Rights Act 1998 with no recourse. The fact that no remedy has been sought as a means of facilitating congruence between the law and the rights afforded to individuals by virtue of being human speaks volumes to me. It indicates that individual rights are sometimes superseded when examined within the context of the rights of all. In the case of police immunity, it is imperative for the police to have immunity as it serves to prevent a chaotic society. When examined in those terms, it makes perfect sense. What in the onset seemed to be a blatant human rights violation proves to be necessary in maintain law and order. This is a trade-off which many of us are willing to make. References Bar, C. V. (1998). The Common European Law of Torts: The Core Areas of Tort Law, Its Approximation in Europe, and Its Accommodation in the Legal System (Vol. 1). Oxford: Clarendon Press. Council of Europe. (2005) The European Convention on Human Rights and its Five Protocols, Retrieved January 2, 2007, from http://www.hri.org/docs/ECHR50.html#C.Art6 Deakin, S.F. & Markesinis, B.S. (1999). Tort Law. Oxford: Clarendon Press. Lawindexpro (2006). Lawindexpro Cases, Retrieved January 2, 2007, from http://www.lawindexpro.co.uk/clip.shtml. Lawrence University (2001). Heaven v. Pender, trading as West India Graving Dock Company. 11 Q. B. D. 503 (1883); [pp. 503-17]—Vol: XI. Queens’s Bench Division. [In the Court of Appeal.] July 30, 1883, Retrieved January 2, 2007, from http://www.lawrence.edu/fast/boardmaw/Hvn_v_Pndr.html Leeds University (1998). Donoghue v Stevenson—Legal Citation:Donoghue (or McAlister) v Stevenson, [1932] All ER Rep 1; [1932] AC 562; House of Lords, Retrieved January 2, 2007, from http://www.leeds.ac.uk/law/hamlyn/donoghue.htm Major, J. (2001). Anns and the law of negligence, Retrieved January 2, 2007, from http://www.cle.bc.ca/CLE/Analysis/Collection/01-5123601-anns?practiceAreaMessage=true&practiceArea=Personal%20Injury#_Toc511728802 Markesinis, B. S., & Deakin, S. F. (1999). Tort Law (4th ed.). Oxford: Clarendon Press. Robertson, D. (1998). Judicial Discretion in the House of Lords. Oxford: Clarendon Press. Supreme Court: Lawlink NSW (n.d.). Policy and the Swing of the Negligence Pendulum: D A IPP[2]—Précis, Retrieved January 2, 2007, from http://www.lawlink.nsw.gov.au/lawlink/supreme_court/ll_sc.nsf/vwPrint1/SCO_speech_ipp_150903 Wordpress (2006). Precedent—The New Rules of Law and Style—The Neighbour Principle: In animation. Retrieved January 2, 2007, from http://www.lawandstyle.ca/?p=42 Read More