Tort of Negligence - Coursework Example

Tort of Negligence Duty deals with relationships. In tort cases, the claimant must show that the defendant was under a relationship with him, which obliged the former to provide him with proper care. In the legal context duty is referred to as proximity. Mere foresight is insufficient for establishing a claim for damages. There must be closer relationship between the parties for claiming compensation for certain types of damage. In cases of tort of negligence, a very important element is foresight of damage1. In order to prove that there is a tort of negligence had occurred, the claimant must prove that the defendant was under a duty of care. Therefore, duty is an essential element in to establish negligence. The claimant must prove that the defendant had failed to carry out the minimum standard of care in performing his duty. It is also important to prove that the claim for damages had arisen out of that failure to perform such duty. In addition, it has to be proved that the defendant was duty bound to exercise care towards the claimant2. In order, to establish a duty of care, three requirements have to be fulfilled. First, some foreseeable damage should have been caused to the claimant. Second, there should be a closer relationship between the claimant and the defendant that establishes a duty of care. Third, such relationship should be just and reasonable in imposing a duty on the defendant3. The doctrine of duty of care was first developed in Donoghue v Stevenson4. Since then this concept remained unchanged, until the 1970 case of Dorset Yacht v Home Office. In that case, it was held that a duty of care was present, if the damage was predictable5. In Donoghue v Stevenson, the plaintiff’s friend ordered a ginger beer. After she had consumed a portion of the drink, she noticed the remains of a rotten and decomposed snail in the beer. Donoghue fell ill on account of having consumed the contaminated beer, and brought a suit against the defendant, who was the manufacturer of the ginger beer6. Their Lordships opined that the plaintiff had legal grounds for her claim under the existing law. This decision was a landmark decision and became a legal principle in countries following common law. This decision constitutes the basis for the modern legal principles relating to product liability of manufacturers. This principle has been established as tort of negligence in tort law, and applies to all civil wrongs and claims7. In Capro v Dickman an economic loss transpired, on account of the negligent statement made by the defendant. Their Lordships clearly established in this case that although investors had made investments on the basis of financial statements, nevertheless, the accountants who had prepared such statements were not liable for the losses resulting from these statements. This outcome was on account of lack of adequate proximity between those who had prepared the financial statements and the persons who had relied upon them8. A tort can be defined as the perpetration of a wrong against another person. Negligence is also a tort and liability claims on account of negligence are the most numerous. There are four important elements in negligence, namely, duty, breach, cause and damages; and the courts examine each of these elements9. Negligence occurs, when there is carelessness coupled with a duty of care. In other words, the careless conduct of a person should have resulted in the breach of a duty to take care. In addition, if the element of causation is also present, then a tort of negligence is deemed to have occurred10. Medical negligence presents an intricate tort, for the courts to unravel. In cases of claims for medical negligence, the courts have to maintain a balance between the interests of the medical profession and the rights of the affected patients. The courts apply the Bolam test in such cases; which establishes the standards for quality of medical services. These standards are established by medical experts in the field of medicine. If the Bolam test is not applied, then it would become the responsibility of the legal profession to determine responsibility, which could prove to be inequitable, on account of the complexity of the issues involved11. In Bolam v Firern Hospital Management Committee, it was held by the court that doctors would be tried by their peers in the same profession. The medical professionals attending on the plaintiff had acted in compliance with the standards established by the medical profession; hence, they were absolved of any liability regarding medical negligence. This decision constitutes the Bolam test and applies to cases of medical negligence12. Similarly, solicitors can be held liable if they fail to exercise due care and skill, while discharging their professional duties, regarding their customers. Negligence, in this context, makes solicitors liable, in accordance with the principle established in Hedley Byrne v Heller. In this case, the House of Lords had established the principle of assumption of responsibility by a solicitor towards his client13. In Brooks v Commissioner of Police, the House of Lords held that the police was not under a duty of care towards victims and witnesses, while investigating crimes and suspects14. In Vicario v Commissioner of Police of the Metropolis, it was held that the police had no duty of care to victims and witnesses, while deciding whether or not to prosecute a person; even if the interests of the victims were involved. The duty of care in such situations would not be reasonable15. Liability for negligent conduct transpires only when a person has a duty of care towards the claimant. This principle was further extended by Lord Atkin in Donoghue, in which his Lordship proposed the neighbour principle. According to this concept, a person is expected to have reasonable foresight that failure in his duty of care towards another person could result in injury to that person. Thus, the test of foreseeability came into existence and courts applied it till the 1980s16. The House of Lords, developed a test based on three requirements, due to being dissatisfied with this test, especially in claims for economic loss. These requirements are, first, damage should have been caused to the claimant due to failure to take reasonable care, by the defendant. Second, there should be some sort of relationship or proximity between the parties to the case and third, it should be just and reasonable to impose a duty of care. In some cases, their Lordships had rejected this test, if it clashed with common law rules, albeit, all three requirements had been satisfied17. In general, there is liability for omissions in moral and tort law. A person’s attitude towards omissions within and without the law depends on several contributory reasons. Some of these are the status and situation of the party that fails to act with due care; the consequences of such omissions, the extent of the damage caused due to such omission, and the status of the person who suffers injury on account of the omission18. In the legal context, omissions and acts are expressed in several ways. For instance, if a person is paid for providing protection to another person, then the former is under a duty of care to protect the latter; and failure to protect that person would attract liability. In the context of duty, a person who is paid to protect another is usually held to be liable only if he fails to do so. However, if a person intentionally causes harm to another then he will always be liable19. The law does not recognise carelessness theoretically. It deals with carelessness only when there is a failure in the duty to take care by the defendant, with consequent damage. Such carelessness is deemed to be negligence, and attracts the provisions of the law of negligence. The courts examine the circumstances that establish the duty to take care. In general, humans are compelled to enter into relationships with others, in the course of daily social life. Moreover, some relationships result from business life20. The courts examine these relations and determine the standard of reasonable relationship between humans. The law has to depend on such reasonable relationships, in determining whether a particular relationship gives rise to a duty to take care by one of the parties. Legal responsibility develops as a result of failure to follow established social customs and standards. This is because various actions and results depend on a wide range of omissions or negligence21. As such, the courts deliver their judgments, in accordance with the changing social standards and circumstances. The fundamental concept of liability is that the defendant must owe to the claimant a duty to take care. Furthermore, the claimant has to prove that the damage he suffered is the result of the failure of that duty by the defendant. The courts determine this liability by examining the circumstances and the type of relationship between the claimant and the defendant22. However, there will be no duty when the negative effects of liability imposed on the defendant exceed the actual social value of the liability. Some instances are over-deterrence and disruption of socially valuable activities. In addition, there is no duty of care, if the outcome is an excessive number of tort suits in the courts that entail enormous expenditure, on account of the litigation process23. As such, a duty is owed by a reasonable person, under those circumstances, if such a person failed to realise that he owed a duty to take care. in addition, breach of the duty or carelessness of that person should have adversely affected the other person24. In Thorne v University of London, the court rejected the claim of the plaintiff on the basis that the marking of examinations and the award of grades were policy matters of the university. Such decisions were deemed to be the internal affairs of the university and beyond the purview of the judiciary. Consequently, the claim for damages was not entertained25. In Bradford Corporation v Pickles, the court held that there was no duty of care on the defendant to prevent the diversion of water from his neighbour’s land26. In respect of desisting from interference with parental rights, such interference cannot be constituted as duty of care in negligence27. It was also held that the members of armed services do not owe any duty of care towards their colleagues during wartime and in battle zones28. In McFarlane v Tayside HB, the House of Lords held that doctors were not under a duty of care towards their patients, in the normal course of counselling and treatment for sterilization. Therefore, there is no duty of care to the nurture of a baby born on account of a sterilisation operation that had failed. In this case their Lordships did not impose any duty of care29. Public bodies could also be considered to owe a duty of care, if all the circumstances, lead to the conclusion that a duty of care had been assumed. For instance, in Thames Trains Ltd v Health and Safety Executive, it was held by the court that although, the defendants owed no general duty towards the passengers on their trains; all the same, it could be contended that as the safety regulatory authority for the railways, it had assumed a duty of care towards train passengers30. The courts, in general, examine the nature and scope of the supposed duty, and the extent to which the defendant can be expected to owe such duty to the claimant. In Wilson v Governors of the Sacred Heart Roman Catholic School, it was held that the school authorities owed a duty of care towards their pupils, while they were under their care. This duty of care was applicable even during the time the pupils were leaving the premises of the school31. In any action for negligence, the first and foremost consideration to be taken cognizance of is whether the defendant was under a lawful duty to safeguard the claimant from injury. Such determination of legal duty falls within the ambit of the court’s discretion. The assessment of the pros and cons of the various policy considerations, which establish that the claimant was entitled to protection; constitutes the judgment arrived at by the court, with regard to the negligence action. As such, the courts developed various tests to establish whether a duty of care was owed by the defendant towards the plaintiff. However, the courts have departed from their strict adherence to the concept of duty of care and now subscribe to rationalisation that is based on the principles of fairness, justice and reasonableness. Bibliography Barbara Dunn, Stop Liability Before It Starts, Religious Conference Manager, December 1, 2007 Bolam v Friern Hospital Management Committee (1957) 2 All ER 118 Bradford Corporation v Pickles (1895) AC 587 Brooks v Commissioner of Police of the Metropolis (2005) 1 WLR 1495 Caparo v Dickman (1990) 2 AC 605 Dr. F.S. Malhi, Take a look at other remedies, New Straits Times (Malaysia), January 18, 2007 Donoghue v Stevenson (1932) AC 562. House of Lords Dorset Yacht Co. Ltd v Home Office (1970) AC 1004 Ernest J. Weinrib, ‘Tort Law: Cases and Materials’, Emond Montgomery Publications Limited, 2003 F v Wirral Metropolitan Borough Council (1991) 2 All ER 648 Hedley Byrne v Heller & Partners Ltd (1964) AC 465 McFarlane v Tayside Health Board (1999) 3 WLR 1301 Mulcahy v Ministry of Defence (1996) 2 All ER 758 Negligence: The Basic Principles of Duty of Care, retrieved on 30 December 2008 from http://www.oup.com/uk/orc/bin/9780199287888/kidner_chap02.pdf Peter Cane & P.S. Atiyah, ‘Atiyah’s Accidents, Compensation and the Law’, Cambridge University Press, 2006 Peter Cane, ‘The Anatomy of Tort Law’, Hart Publishing, 1997 Pierre Widmer, ‘Unification of Tort Law’, W.H. van Boom Thames Trains Limited v Health and Safety Executive (2002) EWJC 1415 (QB) Thorne v London University (1966) 2 QB 237, (1966) 2 All ER 338 Vicario v The Commissioner of Police for the Metropolis (2007) EWCA Civ 1361 Wilson v Governors of Sacred Heart Roman Catholic School (1997) EWCA Civ 2644 Read More