Tort Law and Negligence Overview

Introduction

Tort law has developed overtime to remedy situations that other branches of law seem silent on. Negligence generally involves failure to do that which ought to have been done. For negligence to be established, a duty must exist, which duty must be breached by one person and normally the result is undesired. There are three issues that must be satisfied for negligence to stand out: one must first owe the other a duty, normally a duty to care. Secondly, one must fail to observe the said duty and such a failure or breach occasions substantive loss to the other party. Generally, the damage caused should not be too trivial capable of raising defense to the other party’s action. The basic rule for establishing the availability of a duty to care was clearly set up in Donoghue’s case where Lord Atkins came up with the so-called the neighbor principle couched in the following words to wit: “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure or cause harm your neighbor. Who, then, is my neighbor in law? The answer or the correct position seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.” Impliedly, the above sentiments implies that one owes a duty to care and that duty never leaves the backyard of a person owing it to persons normally affected so closely by our actions. Simply put, a neighbor is one affected so closely by our actions.

Claims of negligence by Morgan and Sheen against Dr. Evans and Dr. Sandhu

Morgan decides to choose Dr. Evans to conduct for him an operation. The doctor does not object. From the onset, there exists a duty that should be observed to Morgan by Dr. Evans. Dr. Evans then delegates the duty to Dr. Sandhu to conduct pre-operation procedure. Dr. Sandhu fails to do what a reasonable doctor ought to have done that is not confirming whether Morgan has any allergy. Dr. Evans relies on Dr. Sandhu’s results to conduct an operation on Morgan thereby causing him to be ventilated resulting to slow recovery of 16 weeks. His mother, Sheen, collapses with shock resulting to her being signed off from work for 6 weeks. As discussed above, Lord Atkins’s sentiments lay the foundation of current law in negligence as stated with approval in Caparo Industries v Dickman (1990). This case brought forth three level test to confirm if a duty to take care existed and these are; whether it could be foreseen reasonably that anyone in the victim’s circumstance could be harmed or injured; whether there existed sufficient relationship as regards proximity between the victim and defendant. In addition, whether it was reasonable and just to level a duty to care in the underlying situation or circumstances. As far as foreseeability in the reasonable sense is concerned, the victim should be within a range that will be automatically be exposed to risks by the other party in circumstances that are reasonably foreseeable; in the instant case, Morgan falls in the category of persons put at risk by the doctors. In Bourhill v Young (1943), the court was of the idea that the defendant did not owe any duty to the victim since the defendant could not easily foresee that harm could be occasioned. Morgan’s mother is a case of sufficient proximity and this would involve a number of circumstances like harm caused that are reasonably foreseeable. The shock she suffers is because of negligence of the two doctors that is reasonably foreseeable since they ought to have known, which they in fact knew that Sheen would likely be affected by any mistake on her son.

For one to successfully claim negligence, the victim is expected to establish that the other party acted negligently. The following must be established; Duty - one must owe a duty to the victim legally recognized. Breach - one must breach that duty by not doing what he or she ought to have done with regards to the duty owed. There must be Causation that is to say, it was one’s action that led to injury or harm to the victim; and lastly Damages – in the sense that the victim got harmed because of the other party’s failures. In the instant scenario, there was a legally recognized duty owed to Morgan by Dr. Evans. The said duty was breached directly and as such, Morgan is justified to bring a claim in negligence against the doctors. When examining a claim involving negligence, it first must be established if the offender owed the victim a caring duty legally recognized. In this case, the two doctors, Dr. Evans and Sandhu owed Morgan a duty to provide him with competent medical attention. Circumstances may vary depending with the relationship between the victim and offender and such situations may infer a duty such as; a medical doctor normally will owe his or her patients the duty to accord them competent medical attention. Sometimes, the other party may owe the victim a duty to perform their roles with utmost care in some situations. Existence of a legally recognized duty is one thing that must be established breaching that duty is another. The offender must fail to adhere to and observe the basic requirements that a reasonable person ought to observe for the accomplishment of that duty. Standard of care in negligence claims is one thing and failure to adhere to the standard is another. Standard of care here majorly deals with one’s actions but not one’s mental state. In the instant case, the conduct of Dr. Evans and Sadhu clearly points to negligence since their actions were negligently executed. As such, negligence will not consider their mental state rather their action of negligently operating Morgan and by extension causing adverse effect to Sheen.

Courts are very cautious when it comes to observing a legally recognized duty ought to be done by a reasonable person. A reasonably person means that standard equivalent to how an ordinary person responsibly would do or act in a given circumstance or situation. In more narrow perspective, the offender will be found to have acted negligently if an ordinary person, knowing what the offender ought to know at the time, would have known that one might be injured because of their actions and would have in the circumstances acted differently than the defendant did. In this case, the two doctors ought to have known that failure to include and ask Morgan of his allergy would have resulted into harm and as such remain negligent. Also another feature demands the victim to show that the offender’s negligence did cause their injury. One might have acted in a negligent manner, but the victim can only claim damages if such results injury. It would be unreasonable for example to sue another person for texting negligently while driving for an accident that happened across the road because the driver was negligent. In this case, it is the negligent act of the two doctors of breaching a legal duty of care that sees Morgan ventilated and his mother Sheen caught in Shock.

Negligence also considers if the offender could foresee that they could cause an injury through their actions. If the offender through unexpected act of nature or a random act somehow causes the injury to the plaintiff, then the offender will likely escape liability. Basically, the offender or the defendant must adhere to the standard of a reasonable person. In this case, any reasonable person would likely foresee that failure to consider other conditions like allergy before operation can cause harm. It is therefore true that the two doctors negligently failed to foresee something that a reasonable person would easily foresee. The skill, experience, and knowledge of the offender are normally considered. Therefore, it remains a task of foresee ability. Foreseeability is provable through actual knowledge, skill, and experience. In this instance, a jury would normally consider the defendant’s actual knowledge of the circumstance to determine whether the defendant acted reasonably under the circumstances. In this case, Dr. Evans and Sandhu are considered persons knowledgeable in their respective areas. As such, the two doctors acted negligently and should be treated as such. That negligence is that which results into undesired outcome due to omission or failure to do that which a prudent human being guided by considerations would under similar circumstances would not fail to do. Their Lordships In Glasgow Corporation v Muir, held that the degree of foresight of a prudent and reasonable person a remote check devoid of eccentricity of the exacting defendant. As such, the test remains objective. Dr. Evans and Sandhu failed to execute that which a reasonable doctor would do and as such, the two are individually and collectively responsible for wrongs done to both Morgan and the mother. Moreover, the connection between the victim and Defendant can also guide the court to modify or vary the normal requirement; in Goldman v Hargrave, a fire that was started by natural cause was not extinguished. Among other issues for consideration, the court looked at what reasonable thing he would do in his capacity. In this case, the relationship between Dr. Evans, Dr. Sandhu, and Morgan was purely doctor-patient relationship. A duty existed and such, the same ought to have been executed diligently.

The last issue involves damage. The courts while dealing with this issue are required to compensate the victim for damages caused negligently by a defendant often through money for special damages like hospital bills. Instantly, Morgan and Sheen suffered because of negligence of the doctors. Morgan taking 16 weeks off to recover while Sheen taking 6 months off because of negligent operation by the doctors. The two are thus entitled to damages.

Claim by Morgan and Sheen against the Hospital, Valley Mills Clinic.

For one to establish responsibility on the side of the owner or employer, various ingredients must be met. The offender must be member of staff of the employer as an employee not as someone contracted independently. He or she must have done a wrong and that wrong must have been done during active period of service. Negligence can arise by negligently permitting or allowing others to act on one’s behalf. This refers to vicarious responsibility or liability which involves circumstances whereby a person commits a wrongful act while representing others. This definition fits this situation. Valley Mills clinic, the Hospital herein, even though was not directly involved is liable for allowing its employees to negligently act. The basic circumstance under which the concept of vicarious liability arises is one whereby a person represents his or her master. Lord Nicholls in Dubai Aluminium Co Ltd v Salaam [2002] 3 WLR 1913 said that the fundamental lawful plan is premised on acknowledgement that conducting commerce of necessity entails peril to other people. It carries the menace to the effect that other people may be affected by wrongs done by the people carrying on trade on behalf of the principal and the assumption is that when such perils manifest to loses, it is the business that is liable to compensate persons injured. Relying on this, the Hospital should thus be responsible for negligently allowing it employees to operate on Morgan without exercising due care required of them and since the two were acting on its behalf, it should be vicariously liable.

This kind of liability thus is a way of bringing other wrongs including negligence so that they can be credited to an exact person, their direct involvement in the tort notwithstanding. One only needs to prove affiliation involving control, wrongful act, and the period during which the act was done normally in the course of active employment. The Doctors operated Morgan in the course of employment thus Valley Hill Clinic should be liable for their wrongful act done negligently.

The claimant had served an asset freezing order on Barclays bank in respect of one of its customers. The commissioners wanted the bank account of the said customer freezed. As per the law, a bank is normally mandated to obey requirements from courts in the form of a freeze order and is always compensated for the work. As soon as Barclays got the order, one of its workers reverted to the effect that the account had been frozen. The client went ahead and withdrew available cash from the bank account. The bank paid out on a cheque putting reliance on the order. Customs and Excise through its commissioner then sued Barclays bank for money lost in negligence. Barclays bank denied liability as to any duty of care.

Significance

Lord Mance states that analysis of precedents points to the fact that there exists no solitary familiar factor, including cases involving monetary loss whereby responsibility could be dogged. The significance of this statement is twofold. First, Lord Mance meant that the adoption of assumption or theory of responsibility as seen in Hedley Byrne on economic or monetary loss in English law of tort ensuing from a careless statement could not apply to the instant case before them. Prior to the decision, the idea that a person could be indebted to another in duty for proclamations or utterances said while relying on something had long been discarded. House of Lords refused earlier situation by recognizing liability or responsibility for pure economic or monetary loss by launching the proposal of theory or assumption of liability. It is this notion of assumption of responsibility that Lord Mance clearly distanced himself with by finding no liability on the side of the bank since there was no single authority by which liability could be determined.

Secondly, Lord Mance implies that the acknowledgment of a responsibility of concern or care in the instant scenario before them would not be strongly be premised on any existing obligation. That the bank is not charged with any responsibility by law or any other statute. According to him, the bank had only been informed of the the court order favoring the claimant. Further, the court had even warned that the bank would be answerable for disdain or disobedience if it intentionally helps, authorizes, and disobeys the order. Moreover, Lord Mance meant that the idea of assumption of responsibility where none existed was subsumed and largely indistinct into the law of negligence. It was direct according to him because Barclays bank was strictly needed to obey the orders freezing the account from the court and as such, it could not be said to have emerged any assumption of responsibility by on other cases. Simply put, there were no common cases and as such, each case ought to be treated as unique based on its own merits and circumstances. Accordingly, it could not be just, reasonable and fair to inflict responsibility on Barclays. The bank was consequently not obliged to compensate commissioners for the dispersed cash on an account of negligence. That each case ought to be looked on its own merit and fact. Lord Bingham posits that it is essential to focus concentration on the factual condition of meticulous and exact case and the exact affiliation amid the individuals in the perspective of their lawful and truthful condition entirely. What Lord Bingham is saying that each case should be considered based on its own circumstance. In the end, it was awkward that the Barclays ought to be befallen and exposed to responsibility after being notified of an order, which it had a duty to obey. For this kind of exposure, first it had not been in compensated in any way with its lone shield being an undertaking from the commissioner to compensate any loss that the order could occasion. According to Lord Bingham, the shield was inversely reliable with responsibility of concern purportedly indebted to the officials of customs and valueless in a situation such as the one at hand.

As regards the circumstance of this case according to Lord Bingham, three tests were available to determine if an offender sued or charged for occasioning wholesome economic or monetary loss to a claimant actually did owe him a responsibility of concern or care in negligence. First, was the idea of assumption of responsibility, whether or not the defendant did assume such a duty for his or her actions versus the claimant’s. The second is to determine if the loss occasioned to the victim was foreseeable in the eyes of the defendant. Whether the affiliation amid the parties was of adequate closeness; and if in the circumstances it was just and reasonable to infer an obligation of concern or care. Simply put, is essential to focus concentration on the factual condition of meticulous and exact case and the exact affiliation amid the individuals in the perspective of their lawful and truthful condition entirely.

First, Jill can maintain an action against Jack for trespass. Tort law has developed its own ways of dealing with claims against defendants or persons who act to infringe other peoples’ personal rights. Torts to persons include assault. In this instant case, Jill can institute tort of assault against Jack.

In tort, assault includes circumstances whereby a person makes other persons to infer a cause of instant, illegal use of power on their self. It normally goes hand-in-hand with battery. Jack, while inches away from Jill pulls out a sawn-off shotgun which he had been holding behind his back and brandish it wildly in the air before placing it to his own head. This act could easily and did cause Jill to infer the cause of instant, illegal use of power on her personal self. It must not entirely involve physical use of violence for it to amount to assault. Even threats and words will actually amount to assault, provided that they accomplish the pertinent and necessary criteria. Intent is an essential and a vital constituent as far as assault is concerned. Accordingly, someone who wittingly behaves in such a manner likely to cause another to infer aggression or assault is duly responsible. The panic of the casualty or the claimant ought to be logical. This rationality is decided premised on the factual issues that are existing at the moment of the attack but not the aim of the circumstance. It is thus a prerequisite of every assault or attack that the anticipated threat be caused by using force of an immediate nature. Since it involves what the casualty considers and thinks may occur in the instant or near prospect, a threat the victim knows cannot be executed falls out the ambit of assault. In this case, Jack and Jill have not been together for a while now and being that Jack is rowdy with high affinity for fighting, Jill could easily believe that Jack could carry out the threat of shooting. As such, tort of trespass in assault has got high chances of success.

Secondly, Jill can bring an action against Jack in nuisance and particularly, private nuisance. Denning MR in Miller v Jackson [1977] QB 966 opined that the core foundation of claims involving private nuisance is the irrational usage by a person of his property to the disadvantage of their neighbour. Two basic features of private nuisance exist. First, it entails the safeguard of utilization of property. In this case, Jill had proprietary interest in the house. Therefore, private nuisance ensures that such rights to property are protected and safeguarded. Second, that safeguard must be as of irrational meddling. This covers a broad scope of neighbour affiliations. Interests in properties or assets and Nuisance, more so private nuisance, are closed linked and now that nuisance covers such rights in property, it is an essential requirement that anybody claiming nuisance must have interest in the land or property being interfered with by another person. One can have interests either as a lessee or even as a a tenant or occupier. In this case, Jill ran into her house and locked the door. The key point is that she was in her house and by that very virtue; she had a proprietary interest in the property in which another person, Jack, was interfering with.She then saw Jack, who had entered the house by the rear, standing in her kitchen. This was a case of interference by Jack as this act saw Jill terrified as Jack advanced towards her with one arm behind his back, seemingly concealing something. This amounted to interference in private residence and as such, Jill can mount claim against Jack for tort of private nuisance. Jill can finally mount a claim against Jack for harassment which is a tort and which now has a legislative meaning as per the Harassment Act, 1997. There are three major elements of harassment and section 1 of the said statute states that it is a way of behaviour that one person or the offender ought to know or knows results to aggravation, annoyance and irritation of the victim. In this case, Jack interferes with Jill in a manner not befitting. Jack, while inches away from Jill pulls out a sawn-off shotgun which he had been holding behind his back and brandish it wildly in the air before placing it to his own head. This is harassment as it easily irritates Jill and as such, Jill is advised to institute claim against Jack for such under the Tort of harassment.

Looking for further insights on Private Nuisance and Property Rights? Click here.

Books and Journals

Alford, R. P. (2010). Apportioning responsibility among joint tortfeasors for international law violations. Pepp. L. Rev., 38, 233.

Baker, J. (2019). Introduction to English Legal History. Oxford University Press.

Bellia Jr, A. J., & Clark, B. R. (2013). Two Myths About the Alien Tort Statute. Notre Dame L. Rev., 89, 1609.

Coleman, J. (2010). Theories of tort law. Stanford Encyclopedia of Philosophy.

Deakin, S. F., Johnston, A., & Markesinis, B. (2012). Markesinis and Deakin's Tort law. Oxford University Press.

Engel, D. M. (2010). Lumping as Default in Tort Cases: The Cultural Interpretation of Injury and Causation. Loy. LAL Rev., 44, 33.

Gardner, J. (2011). What is tort law for? Part 1. The place of corrective justice. Law and Philosophy, 30(1), 1-50.

Gardner, J. (2011). What is tort law for? Part 1. The place of corrective justice. Law and Philosophy, 30(1), 1-50.

Goldberg, J. C., Sebok, A. J., & Zipursky, B. C. (2016). Tort Law: Responsibilities and Redress. Aspen Publishers.

Koziol, H. (2012). Basic questions of tort law from a Germanic perspective (pp. 21-26). Vienna: Jan Sramek Verlag.

Luntz, H., Hambly, D., Burns, K., Dietrich, J., Foster, N., Grant, G., & Harder, S. (2017). Torts: cases and commentary. LexisNexis Butterworths.

Meeran, R. (2011). Tort litigation against multinational corporations for violation of human rights: an overview of the position outside the United States. City UHKL Rev., 3, 1.

Petrin, M. (2013). Assumption of Responsibility in Corporate Groups: C handler v C ape plc. The Modern Law Review, 76(3), 603-619.

Pitetsky, V. V. (2011). Differentiation of Levity and Criminal Negligence in Criminal Law, 4(2), 230-234.

Raz, J. (2010). Responsibility and the negligence standard. Oxford Journal of Legal Studies, 30(1), 1-18.

Sidhu, A., & Australia, W. (2014). A Critical Examination of the Betterment Predicament in the Assessment of Damages for Damage Or Destruction to Property in Tort and Contract Claims (Doctoral dissertation, University of Western Australia).

Steele, J. (2010). Tort law: Text, cases, and materials. Oxford University Press.

Weinrib, E. J. (2011). The Monsanto lectures: Understanding tort law. Valparaiso University Law Review, 23(3), 485-526.

Wright, J. (2017). Tort law and human rights. Bloomsbury Publishing.