Analysis of the Economic Torts - Essay Example

Critical Context Ans There is no specific definition that may be offered for what exactly constitutes tortious conduct1. However, in general, a tort is a legal wrong, whereby a Plaintiff has suffered damages due to the negligence or wrongful conduct of another person and must therefore be compensated for injuries2. What must be established is that the Plaintiff has suffered harm caused by the direct negligence or omission of the defendant and that there is a violation of a duty of care. Tort seeks to restore the Plaintiff to a position he would have been in if the alleged wrong had never taken place at all based on an assessment of economic and other losses and injuries that have been caused to the Plaintiff.3 Tort offers an option for the victims to shift at least some of the costs for the damages that they have to bear on to others who may be partly responsible for the fate of the victim. In order to establish a cause of action under tort, three aspects must be established: (a) The victim should have suffered serious harm (b) The harm must be the result of an act of omission or some direct wrongful action of the defendant (c) There must be a violation of some duty expected from the defendant. Liability under tort is generally determined along the lines of (a) strict liability or (b) no fault liability. Under the tort of strict liability, a defendant will be obliged to pay damages for a breach of duty of care and the Court will not question whether or not the defendant has acted in a justifiable manner. On the other hand in a case of no fault liability, it is possible that a victim may not receive damages for the harm caused if there has been a good justifiable reason for the wrong that has been perpetrated on the victim. Applying this to the case of the Marsh Down school children, the children and their parents could have had good cause to file a suit for tort on the basis of personal injuries at the disco, if they had suffered them. Firstly, the nature of the harm would have been serious enough to merit a cause of action, secondly, the cause of such injuries would have been the wrongful action of the school in giving publicity to the August camp in the local paper, especially in view of ethnic diversities among the school children. The School could have therefore been a party to the suit, with the supervising teachers – Clyde West, James, Dot and Duff being cited as respondents. It is the school that is most likely to be held liable, because the teachers are employed by the school and injuries that have occured to students at the dicso are the result of the failure of the teachers to protect them. As a result, vicarious liability will be imputed to the school, since an employer is expected to be responsible for the negative consequences resulting from wrongful actions of its employees. The case of Donaghue v Stevenson4 was one of the first cases to establish the fact that remedies could exist in tort on the basis that all owe “a duty of care” to “their neighbor” and Lord Tomlin stated that “…acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief.” On the basis of a moral principle that every person owes a duty to other people because they are neighbours, Lord Atkin refined this further by clarifying a duty of care that one owes to a neighbor as follows: “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour….you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”5 On this basis therefore, the action of the school to include a feature about the Farm, knowing the ethic diversity of the school and the possiiblity of damages being caused, is one where harm could reasonably have been foreseen and should therefore have been avoided. The neighbor principle of Donaghue may also be applied in the case of injured students, since a duty of care was owed by the school and its employees towards its students, in safeguarding their welfare. The Donoghue principle was built upon further in the case of Anns v Merton Borough London Council6, where a two fold test was set out to examine whether there was a sufficient element of the neighbor principle that would result in an economic damage caused to another through a dereliction in that duty of care. The case of Murphy v Brentwood DC7 overruled this two fold test laid out in Anns and the liability of a violater of a duty of care was assumed to go beyond merely monetary considerations. This is what finally led to the development of the duty of care owed by every person towards another as laid out in the case of Caparo v Dickman8, which is the foundation of most tort cases today, with some contractual breaches also falling under the tortious breach of duty of care. In the case of Caparo v Dickman, Lord Bridge commented; “It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of that duty by reference to the kind of damage…”9. In this case, it was held that in order to determine whether a duty of care exists in a specific case, “one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighborhood such that in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter- in which case, a prima facie duty of care exists.” Moreover, the case of Caparo had laid out the qualification that the scope of duty is to be assessed in reference to the kind of damage that has been done. Since the relationship between the teachers and students is one of proximity where the welfare of the students is in the hands of teachers, there are adequate grounds for filing a suit for injuries. Moreover, in view of the multi-ethnic nature of the students, the question of injuries resulting from fights and violence breaking out is reasonable foreseeable and should have therefore been prevented. Both students and parents can file for damages for breach of duty of care under tort. In the case of Sutherland Council v Heyman, Brennan J commented; “The question is always whether the defendant was under a duty to avoid or prevent that damage, but the actual nature of the damage suffered is relevant to the existence and the extent of any duty to prevent it.”10 On this basis, therefore, in assessing the extent of damages thta may be payable to the students, if the injuries that occurred were serious, the students and parents would be eligible for a greater measure of relief in the form of more extensive damages to be paid and the school would be seriously liable. Ans 2: As per the preamble of the UN Convention of the Rights of the child, the period of childhood is “entitled to special care and assistance.”11 Moreover, the Convention also states that the parties in a State must take all appropriate measures to ensure that children are protected from all forms of discrimination or punishment that could result especially from the expressed opinions and beliefs of the child’s parents.12 In particular, Article 20 also focuses upon the need to ensure that when a child’s best interests cannot be protected in a particular environment, alternative care is arranged in suitable institutions, with due care and consideraiton being given to the child’s ethnic, cultural and religious background. Jah will certainly be eligible for the special protection extended to children, which is a mandatory requirement of the Convention. Moreover, any retribution that arises out of the political views of his father cannot be inflicted on him and the child must be saved any punishment resulting from the same. In Jah’s case, another question that assumes importance is that of him having to return to Nepal with his family and the possibility that the so called peace could be transitory with Jah being exposed to adverse conditions and punishment, possibly for the political views of his father. The Convention specifically address this issue of entering or leaving a State party and states that such entering or leaving for purposes of family reunification must be dealt with “by State parties in a positive, humane and expeditious manner.”13 As a result, there arises the possiiblity that Jah may be exposed to an environment that is dangerous for him, which will place a responsibility on the institution - in this case, the school, to ensure that alternative care is provided for the child. Since Marsh Down is a school where there are children of different ethnic backgrounds, the school authorities such as Calderwood have an obligaiton to ensure that children such as Jah are provided an environment where their varying cultural and ethnic backgrounds are respected rather than discriminated. Moreover, article 19(1) of Part 1 of the UN Convention has placed a duty upon the person/s caring for the child, such as parents or legal guardians to not only protect a child against discrimination but to also ensure that the child is protected from any kind of violence or abuse, neglect, maltreatment or exploitation. This duty of care is further extended to include the provision of social programs as and where necessary for the protection of the child, and such duties also include “identification, reporting, referral, investigation, treatment and follow up of instances of child maltreatment” with judicial intervention where necessary.14 Therefore applying these requirements spelt out in the Convention to the case of Jah, it may be noted that there may be a responsibility placed upon the school to provide special care and assistance for this child, who is afflicted with fears. In the essay, Jah has also pointed out that his father’s political views could prove to be a cause for persecution of the entire family in Nepal if the peace in that country proves to be transitory. Therefore, he is expressing his inner fears and terror as to what is likely to happen and such fears appear to be the fruit of past persecution the child may have already suffered. Therefore, in this instance, when a teacher has been made aware of the fear of punishment that Jah is suffering at the prospect of his family returning to Nepal, it is not enough to merely read the essay and give it a high mark. Rather, William’s knowledge of the fact that Jah’s family are asylum seekers and that Jah’s father’s political views could be a source of conflict and persecution for the child Jah in his home country, should impel him to take some direct action in the child’s behalf. William will be obliged to bring the matter to the notice of the school board which will have to bring it to the notice of the relevant authorities, so that Jah’s family’s asylum status can be examined in order to determine whether it is safe for the family to return to their home country. Moreover, the UN Convention mandates that the State authorities should examine such cases carefully and take action to ensure that the child is not exposed to harm. Therefore, there may also be an obligaiton on the school authorities ot provide an alternatiove environemnt where Jah can be safe and not be discriminated, while also ensuring that his cultural and ethnic roots are respected. Furthermore in specific context to the disco that was organized, it must be noted that this was a multiracial event and therefore, the status of Jah’s family as an asylum seeker could make him vulnerable to abuse and discriminatory conduct. Since Article 19 of the Convention specifically requires State authorities to protect vulnerable children from all forms of mental and physical abuse, therefore the school would be expected to take necessary precautionary measures to ensure that children such as Jah are protected from discriminatory conduct from others, due to his race and ethnicity. The school could also be held liable for organizing such an event where the welfare of children is placed at risk, especially vulnerable children such as Jah, who are in an indeterminate position in their status as refugees. Therefore, both the school and the State authorities would be required to take steps to look into Jah’s case and ensure that all protection is extended to him and other such children who could be discriminated against on the grounds that they are refugees. Especially in the organization of an event such as the disco, Calderwood would be expected to be aware of the above provisions of the Un Convention which have been cited and to take necessary steps to ensure that it is implemented effectively at marsh Down, where there are a large number of minority children, as well as refugees such as Jah who could be placed at risk. Ans 3: As an employee of Marsh Down, it is likely that James already has a contract of employment with his employer, with certain terms, rights and obligations spelt out therein. However, in the case of the new staffing arrangements that are proposed at Marsh Down and Eden Farm, it may be necessary for James to examine his existing contract of employment in order to safeguard his interests. The existing contract has been developed between the parties as a part of a teaching contract, however, there may be inadequate provision within the terms of that contract to cover all the far reaching changes in mind that are likely to be brought about by the Eden Farm project which may require extra time and effort to be expended by teachers. Teachers such as James generally have a national contract that covers normal hours of work under normal conditions of teaching employment. However, it must be noted that the arrangements proposed at Eden Farm are likely to demand a great deal more from the teachers, such as extra hours of work, an enhanced standard of duty of care and extra responsibility to take care of children in relatively tough and demanding situations in the open. Therefore, where extra hours of work are concerned, James’ contract of employment must extend to cover the new requirements of extra time and effort that will be required, so that adequate levels of compensation are set. As a result, James may have to renegotiate the terms of the contract and the levels of remuneration that are being provided to him, since a greater amount of work will be demanded from him, so he may be entitled to ask for more money. Moreover, in view of the grueling conditions under which teachers will be expected to work on the farm and be responsible for the safety of students, it would be in James’ interest to enter into an employment contract where he can also be entitled to some minimum days of leave in order to rest and recover. With an employment contract, working conditions can also be regulated such as the duration of hours of work, which will not be possible without such a contract, since overtime and non payment of wages may not be adequately compensated. Moreover, James must also ensure that there is adequate provision in the employment contract against unfair dismissal. In the case of St John of God v Brooks, a cut in employee pay was deemed to be reasonable because the employer was faced with declining profits. Since the proposal for Eden Farm appears to be one that is incompletely funded and where there is so guarantee that future funds will continue flowing, it would be in James’ interest to ensure that his contract of employment also clearly spells out the schedule of payments, to ensure that he received wages regularly for the hard work that he is expected to do. Moreover, it will also protect him from situations such as that in the St. John case, where the criterion of what is reasonable could be held by the Courts in the employer’s interest rather than the employee’s. Therefore James must protect himself against that by including a relevant provision in the contract.. Furthermore, it must be noted that the conditions under which Eden Farm is proposed to be set up and the activities that are to be conducted therein could place teachers at risk for being sued for negligence in the event of any inadvertent carelessness17. For example, in the case of The Wagon Mound 18, a large quantity of oil was spilt from the ship and resulted in losses and damages thereafter. Although this test required that the establishment of negligence must go hand in hand with foreseeability of such accidents19, nevertheless it must be noted that in the case of a project such as Eden Farm, there is a high likelihood of accidents occurring during the boot camp like conditions that will exist on the farm. There is a strong likelihood that the entire blame for such incidents could be placed upon the teachers while the employer – Marsh Down school – may also be partially responsible for such accidents through introducing such conditions. Therefore, a re-worked employment contract will help to limit the individual liability of James and to spell out the extent of vicarious liability that will accrue upon the employer - the school. A higher standard of duty of care will be expected from the teachers under conditions such as those in Eden Farm. Therefore, James’ employment contrat must include provisions to allow recoveries for injuries problems during the course of their employment. For example, in the case of McGhee v National Coal Board20 a workman found that he had contracted dermatitis as a result of working in conditions where there was brick dust. The issue raised in this case was whether the use of showers after work would have mitigated the claim he made against his employer, but the employee was able to succeed. The reason for this was that he was able to show that the employee had demonstrated that the employer has neglected an obvious safety precaution that should have been taken. Therefore, in conclusion it may be stated that the current contract James has may not apply in the case of Eden Farm. Instead, it may have to be reworked and new provisions added or existing provisions modified in order to provide adequately for his rights and protection, since the Eden Farm project is larger in scope than the ordinary teaching work that James is currently doing. Bibliography Books/Websites: * Carty, Hazel, 2001. An Analysis of the Economic Torts, Oxford University Press * http://www.lawontheweb.co.uk/basics/employment.htm * Murphy, J, 2003, “Street on torts” (11th edn) London: Butterworths * Rogers W,V.H. (edn), 2002. “Winfield and Jolowicz on tort”, London: Sweet and Maxwell * UN Convention on the Rights of the Child. [online] available at: http://www.ohchr.org/english/law/pdf/crc.pdf, * Working Time Regulations SI 1998/1833 Cases cited: Anns v Merton London (1978) AC 728 Barnett v Chelsea Hospital Management Committee (1969) 1 QB 428 Caparo Industries plc v Dickman and others [1990] 2 AC 605 Donoghue v Stevenson [1932] All ER Rep 1; [1932] AC 562 McGhee v National Coal Board (1956) 1 All ER 615 Murphy v Brentwood DC (1991) 1 AC 398 HL Sutherland Shire Council v Heyman (1985) 60 ALR 1 at 48 The Wagon Mound (1961) AC 388 Read More