Discuss about the Tort of Negligence for Markesinis and Deakin’s Tort Law.
Whether the parties to the case have committed the tort of negligence
The concept of negligence is well described in the landmark case of Donoghue v Stevenson [1932] AC 562, in this case the House of Lords held that one person has a duty of care towards another person who is related to him through his course of actions (Chamallas, 2013).
By duty of care, we mean that a person is responsible for any act committed by him, which could possibly cause harm to other persons. The care in this respect should be reasonable to such an extent that reasonable person finds it appropriate. In order to successfully claim against a tort of negligence a person has to prove before the court the the alleged individual had a duty of care towards him. For a duty of care to exist between two individuals, it is not essential for them to be bound to contractual relationship for instance in this case the manufactures had no contractual relationship with the consumer who had become sick with the intake of the drink, but still he was held liable by the court. The duty of care can be better describe through the theory of social contract according to which the individuals of the society have responsibility towards the safety of each other.
In the case of Home Office v Dorset Yacht Co Ltd [1970] UKHL 2 the court further widened the scope of negligence and the duty of care for individuals. In the case of Anns v Merton London Borough Council [1978] A.C. 728 the House of Lords provided with a broad test towards the concept of negligence and duty of care. This test was known as the Anns Test or the two-stage test. This test is used by most of the countries to appropriately apply the tort of negligence. The two conditions, which are considered by this test, are whether there is a duty of care between the defendant and claimant with respect to the proximity of foresees ability existed and taking into account the reason why there should have been a duty of care between them.
There are four main elements, which constitute the law of tort, these elements are:
The duty of care (determined through the Caparo test from Caparo Industries pIc v Dickman [1990] 2 AC 605 House of Lords in case of physical injury and through the “Alcock test” in Behrens & ors v Bertram Mills Circus Ltd. [1957] 2 QB 1 in case of physiological injury) (Eggen, 2015).
By duty of care means the responsibility of a person to ensure the wellbeing and safety of others, which might be threatened through his actions. In the case of Caparo Industries pIc v Dickman [1990] 2 AC 605 House of Lords it was held by the court that duty of care only exists between those person who might suffer unfair damages due to the actions of each other (Robbennolt & Hans, 2016).
For example if the actions committed by A causes harm to B than there is a duty of care on the part of A with respect to B. However, if C, who by no means is affected through the act, claims that there is a duty of care on the part of A with respect to C, than such duty does not exist (Eades, 2015).
The breach of duty of care (determined through an objective test provided in Vaughan v Menlove (1837) 3 Bing. N.C. 467)
Breach of duty of care only occurs if the defendant is not able to take proper care, with respect to his duties. Here proper care means the care, which a reasonable man would consider just or proper. A defendant cannot claim that he has taken care to the best of his knowledge as a defense against the breach of duty of care. This concept was brought up by the court in the landmark case of Vaughan v Menlove (1837) 3 Bing. N.C. 467 (Deakin, Johnston & Markesinis, 2012).
The injury caused due to the breach of duty of care (determined through ‘but for’ test from Barnett v Chelsea & Kensington Hospital [1969] 1 QB 428) (Mendelson, 2014).
The remoteness of the injury (determined by test of remoteness in The Wagon Mound no 1 [1961] AC 388 House of Lords)
If these elements are present in a course of action, the tort of negligence is deemed to have been committed.
With respect to Zarine it was her duty to take care of her daughter. She had been busy taking to another young parent and as a result, she lost her watch over her daughter. This negligence on her part laid the foundation of all accidents, which occurred in this case. In order to analyze to what extent she is liable in this case, the elements constituting the tort of negligence and the various tests specified in the RULE have to be applied in this particular situation (Gifford & Robinette, 2014).
Jack had jumped in to protect Sara, from a major car accident and as a result had suffered serious injuries himself through the van which was been driven cautiously by Bob
Applying the test Caparo test it can be analyzed that Zarine had a duty of care towards her daughter and Jack. Duty of care can only originate against a person who suffers any harm due to the action committed by the defendant.
Zarine had a duty of care towards her daughter, as she was very young to take care of herself.
Applying the objective test to determine the breach of duty with respect to Zarine in this case it can be concluded that the defendant had a duty of care towards her daughter, which she had breached through negligence. This breach of duty of care also extended to the injury caused to Jack
The injury caused to Jack was a direct result of the breach of duty of care committed by Zarine towards him
Applying the “but for” test to determine the injury caused due to negligence on part of Zarine it can be concluded that Jack would not have suffered the injuries due if negligence was not committed on the part of Zarine.
If the test of remoteness is applied in this situation, it can be determined that the damages caused to Jack were not too remote, and a reasonable man could foresee such damages. Moreover, all the accidents, which have taken place, were a result of the negligence caused by Zarine.
In the case of Zarine and Bob it can be determined that, the former had a duty of care with respect to Bob as the injury suffered by him is an indirect result of her negligence. Although the injury caused to Bob was little remote to the negligence committed by Zarine it she is liable for a breach of duty of care if the principles of the case The Wagon Mound no 1 [1961] AC 388 House of Lords) are applied (Chamallas, 2015).
In the case of Zarine and Laura it can be concluded that although Zarine had a duty of care with respect to Laura, the damages, which were, suffer by her were a result of her own mistake as she also had a duty of care to drive the vehicle within a reasonable speed limit. Thus, she cannot claim any damages against Zarine for the breach of her duty (Iacobucci, & Trebilcock, 2016).
If the principles of The Wagon Mound no 1 [1961] AC 388 House of Lords) are applied it can be concluded that Zarine had a duty of care with respect to Leonard as the case provides that duty of care exists if damages are caused due to negligence however remote be the circumstances. If the test of objective test is applied, in this case it can be concluded that Zarine has breached her duty of care with respect to Leonard. Thus, she is liable for the tort of negligence with respect to Leonard (Martin, 2016).
Jack had seriously been injured by Bob’s van in the course of saving Sara from an accident. Jack has sued Bob for negligence.
Applying the Caparo test to assess the duty of care in this case it can be made out that Bob had a duty of care towards the pedestrians, as he was a driver.
Applying the objective test in this case it can be determined that Bob had breached his duty of care towards Jack even if he was driving within the speed limit it is his responsibility to protect the pedestrians.
Appling the “but for” test in this case it can be determined that the breach of duty of Bob had actually caused injuries to Jack.
Applying the test of remoteness in this case, it can further be determined that the injury caused to Jack because of the actions of Bob was not too remote to Foresee.
Thus, Bob has committed the tort of negligence with respect to Jack.
In the case of Bob, he is entitled to sue Zarine for the damages caused to him were a result of the negligence committed by Zarine. She indirectly had a duty of care, which was breach and resulted in injury, towards Bob.
Jack in this case also had a duty of care towards Bob, as it is the duty of pedestrians also to ensure the safe passage of vehicles on the road. Although the actions committed by Jack can be considered to be justified by a reasonable man, if the carop test it applied in this case it can be held that Jack had a duty of care towards Bob.
Jack had also breached this duty of care as he failed to ensure the safe passage of Bob through the road.
With respect to remoteness, it can be concluded that the event could have easily been foreseeable by Jack that his action could cause damages to Bob.
In the case of Leonard and Laura, the former had lost his livelihood. The four elements needed to constitute a tort of negligence can be determined by applying the following tests in this case.
If the Alcock test is applied in this case it can be determined that Laura as a driver had a duty of care towards Leonard as he was a pedestrian. Laura should not have been driving in speed, which made her car to skid and eventually caused psychiatric injury to Leonard. This was better explained in the case of White & Ors v Chief Constable of South Yorkshire [1998] 3 WLR 1509, which is related to the person suffering physiological injuries in, am area where he could have suffered physical injury.
If the objective test is applied in this case, it can be determined that Laura had breached her duty of care towards Leonard.
If the “But for” test is applied in this case it can be concluded that the injury caused to Leonard is a result of the breach of duty committed by Laura.
If the test of remoteness is applied, in this case it can be made out that the injury caused to Leonard due to the breach of duty by Laura was not too remote.
According to the eggshell skull rule (or thin skull rule), the weakness of a person who has been injured cannot be treated as a defense in the court of law. In this case Laura cannot use the psychological disorder, which was being suffered by Leonard, as a defense against his claim (Goudkamp & Ihuoma, 2016).
Conclusion:
By the application of the tests, which determine the elements of the tort of negligence in these circumstances it, can be concluded that Zarine is liable to pay damages to Bob and leopard. It can also be concluded that Laura is liable to pay damages to Leonard. The application of the test also provide us that Jack is entitled to claim compensation for the tort of negligence against Bob.
References:
Chamallas, M. (2013). Exceptional Case of Parental Negligence, The. Jotwell: J. Things We Like, 413.
Chamallas, M. (2015). Theorizing Damage Through Reproductive Torts. Jotwell: J. Things We Like, 88.
Deakin, S. F., Johnston, A., & Markesinis, B. S. (2012). Markesinis and Deakin’s tort law. Oxford University Press.
Eades, R. W. (2015). Torts Involving Personal Property (Vol. 1). Jury Instructions on Damages in Tort Actions.
Eggen, J. M. (2015). Mental Disabilities and Duty in Negligence Law: Will Neuroscience Reform Tort Doctrine?. Indiana Health Law Review, 12, 591.
Gifford, D. G., & Robinette, C. J. (2014). Apportioning liability in Maryland tort cases: Time to end contributory negligence and joint and several liability. Maryland Law Review, 73, 2013-61.
Goudkamp, J., & Ihuoma, M. (2016). A Tour of the Tort of Negligence.
Graham, J. C. (2015). General Principles of Liability. Florida Torts, 2.
Graham, J. C. (2015). Proof of Negligence. Florida Torts, 1.
Guay III, G. E., & Cummins, R. (2013). Tort Law for Paralegals. Pearson Higher Ed.
Iacobucci, E. M., & Trebilcock, M. J. (2016). An economic analysis of waiver of tort in negligence actions. University of Toronto Law Journal, 66(2), 173-196.
Keating, G. (2015). Is Negligence Law Less Objective than We Think. Jotwell: J. Things We Like, 137.
Little, J. W., Lidsky, L. B., O’Connell, S. C., & Lande, R. H. (2014). Torts: Theory and Practice. LexisNexis.
Martin, K. (2016). Topical matters pertaining to the tort of negligence-the attribution of blame. Brief, 43(7), 38.
Mendelson, D. (2014). The new law of torts. Oxford University Press.
Robbennolt, J. K., & Hans, V. P. (2016). The psychology of tort law. In Advances in Psychology and Law (pp. 249-274). Springer International Publishing.
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