Law of Torts

Minor case studies on TORTS law

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LEGAL ISSUES

Following legal issues can be established after taking into consideration the facts and circumstances of the given case scenario :

  • Whether Janelle would be liable for her negligence actions and what points are required to be proved by Peter for being successful in his suit ?
  • Whether Sully liable for the injuries caused to James and what are the defences available with her ?

LAW

English tort law is the law established to govern the implicit civil responsibilities that one individual owes to the other. Tort can be determined as civil wrong done by one party which caused injury, damage or loss to the other party (Moore, 2010). Tort is an intrusion into the health, safety, privacy and profits of another person. Law of tort seeks to provide remedies to the bonafide parties who have suffered loss or damage due to wrongful or negligent actions of others. It encompasses wide range of rights, remedies and obligations that are applied by courts in case of civil proceedings. The tortfeasor i.e. the person whose wrongful actions caused injury would be held liable under tort law even if acted unintentionally i.e. due to negligence.Tort of negligence was first established in the case of Donoghue v Stevenson, 1932, which held that the party would be liable if he acted negligently and caused harm to other where any other person of ordinary prudence have taken reasonable care in the same situation.

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Following points are required to be proved by the claimant to be successful in a claim of negligence :

Duty of care

The claimant needs to prove that the defendant owes a legal duty of care towards him

According to the case of Caparo Industries plc v Dickman, 1990, a three stage test is required to perform whether a duty of care exists or not :

  • There exists a relationship of proximity between the parties.
  • Injury or harm caused to the claimant caused due to conduct of defendant must be reasonably foreseeable as held in the case of Topp v London Country Bus, 1993.
  • It must be fair, just and reasonable to impose the liability.

Breach of duty of care

It is essential for the occurrence of tort of negligence that the legal duty imposed has been breached by the defendant. According to Vaughan v Menlove, 1837 case, the court would use reasonable man test or objective test i.e. whether the defendant have acted in the same manner as a person of ordinary prudence have acted in the similar situation and followed such standard of care (Goldberg, 2012). The main focus is to ascertain whether the party has taken reasonable and standard care that any other person would have taken in the like circumstances. If the defendant failed to meet such standard of care, then, he can be held liable for breach of duty of care.

Causation

Once it is established that there was a breach of duty of care, it is imperative to prove that such breach has caused loss, damage or injury to the claimant whether directly or indirectly as held in the case of Barnett v Chelsea & Kensington Hospital, 1969. The claimant needs to prove that he would not have suffered injury or loss, if it had not been the actions of defendant.

Damage to the claimant

Claimant must have suffered some form of loss, injury or damage which includes physical or mental injuries, damage to property or financial loss. The defendant would be held liable only when claimant has suffered actual loss or harm as a result of his actions or conduct (Deakin, Johnston and Markesinis, 2012). The onus to prove that there was a breach of duty of care and this caused damages which are not too remote lies on the claimant.

The law of tort provides two key remedies to the party

Damages

It was held in the case of British Transport Commission v Gourley [1956] that financial compensation can be provided to claimant for his loss.

The damages can be sub divided into different types :

  • Nominal : nominal damages are paid when the tort is being committed but the victim has not suffered any loss.
  • Contemptuous : very small amount is required to be paid in case where the claimant has been successful but the court considers that the case was without merit and should not have been bought.
  • General : these damages are awarded when there is no economic loss but to compensate emotional distress and suffering or pain. Special : to get entitled for special damages, claimant needs to prove that actual loss or damage is suffered (Varuhas, 2014). For example – medical expenses, damage to property.
  • Aggravated damages : such damages are awarded when the court opines that the tort was committed maliciously and caused harm to the reputation or character of the claimant.
  • Exemplary or punitive damages : This damages are awarded in serious cases where court deems that such cases are required to be set as an example.

Injunctions

In certain cases, if the court deems appropriate injunction can be applied. As per the case of Kennaway v Thompson, 1981, injunction can be determined as the order of court which either prohibits or requires that a certain course of action to be conducted.

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Tort law provides for defences to the defendant

Contributory negligence

Contributory negligence is a partial defence where the loss or damage incurred is apportioned between the parties. It was held in the case of Revill v Newbery, 1996 that the claimant is also held responsible for the carelessness and therefore, contributed to the loss or damage suffered by him (Winfield, 2013). Both the parties would be held liable for their part of action and the amount of loss or damages will be distributed among them. In case of contributory negligence, defendant is required to prove that proper care was not taken by the claimant in the circumstances for his own safety and such failure was contributory cause for the injuries suffered.

Volenti non fit injuria

It is a latin phrase which means consent. It states that claimant cannot complain about the tort when he acted voluntarily after assuming the risk involved in the action. It is must to prove that he had full knowledge of the extent and nature of risk involved in the action which he conducted voluntarily (The Law of Tort, 2014). There are three requirements of this defence – voluntary agreement as held in the case of Nettleship v Weston, 1971 which is made in full knowledge of the extent and nature of risk involved.

APPLICATION

According to the rule laid down in the case of Donoghue v Stevenson, 1932, a person would be held liable for the negligent actions when he fails to exercise reasonable care and that caused damage or injury to other party. In the given scenario, Janelle was going to a birthday party in Brian Bay from Farmidale in her car which she was driving. She was very excited about the party. Due to her reckless and careless driving she collided with the Peter's car. As a result, he suffered severe injuries that led to amputation of his legs. This developed extreme anxiety, depression and agarophobia i.e. fear of public spaces and thus, he is no longer to continue his profession and unable to find alternative employment. Thus, it is a case of tort of negligence where the action of Janelle caused severe physical and mental injuries and economic loss to Peter. All the elements of tort of negligence are present in the given case :

Duty of care

Peter can prove that Janelle has a legal duty of care as she is required to take reasonable care while driving and follow the traffic rules. Therefore, Janelle owed a duty of care to Peter. As per the case of Topp v London Country Bus, 1993, the injury caused to Peter was reasonably foreseeable and thus, it is just and fair to impose duty on Janelle.

Breach of duty of care

After establishing that Janelle owed a duty of care, Peter is required to prove that there was a breach of duty of care. According to Vaughan v Menlove, 1837 case, the court would use reasonable man test or objective test i.e. whether the defendant have acted in the same manner as a person of ordinary prudence have acted in the similar situation and followed such standard of care (Scanlon, 2011). Thus, in the given case it can be seen that Janelle has not acted in a reasonable manner and hence, there is a breach of duty.

Causation

It was held in the case of Barnett v Chelsea & Kensington Hospital, 1969 that the breach of duty of care has caused injury, damage or loss to the party. Peter needs to prove that he would not have suffered injury or loss, if it had not been the actions of Janelle.

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Damage to the claimant

In the present case, the accident caused severe injuries to Peter – it led to amputation of his legs, caused extreme depression, agarophobia and anxiety. Moreover, he was unable to continue his profession as a standing comedian and cannot find alternative job (Gifford, 2010). Thus, he suffered actual and severe injury and damage as a result of accident caused by Janelle.
Thus, Janelle would be held liable to pay compensation to Peter for causing physical, emotional and economic loss to him.

In this case, Sully arranged a pool party for his son Trevor at her house. There was alcohol at the party and one of Trevor's friend named James drank too much and dived into the pool which caused him severe injuries that he is chained to wheelchair for the rest of his life. As the injury caused to James was due to negligence of Sully who was the host of the party as well as due to his own carelessness so in the given case, contributory negligence is applicable. James dived into the pool as he was not aware of the depth of the pool and there was no notice mentioning the same, therefore, Sully can be held responsible for this negligence (Ronglin, 2010). Also, James had several alcoholic drinks before diving, therefore, he himself was liable as per the case of Revill v Newbery, 1996. Thus, in the given case, Sully can use contributory negligence as a partial defence as she was responsible for not providing notice and taking reasonable care of her guests and James is liable for his own injuries as he dived into the pool after he was drunk. Emma, Trevor's younger sister was also injured in his birthday party as she slipped and lacerated her leg on one of the broken beer bottles that were lying around the pool area. The law of tort is not applicable in the given case as it is a family matter where mother failed to take reasonable care of her daughter.

Conclusion

It can be concluded on the grounds of laid down principles of Tort law and facts of the case that Janelle would be liable for compensation to Peter as injury was caused due to her negligence. She owed a duty of care which she breached and this caused severe physical, mental and economic injury and loss to Peter. In the other case, Sully would be partly liable as per the principle of contributory negligence where if the injury is caused due to negligent actions of both the parties, then, loss is apportioned between them. Therefore, Sully can use the defence of contributory negligence as the injury caused to James was due to carelessness of Sully as well as James himself. In the last case, Sully failed to take reasonable care of her daughter, Emma.

References

  • Deakin, S. F., Johnston, A. and Markesinis, B., 2012.Markesinis and Deakin's tort law. Oxford University Press.
  • Gifford, D. G., 2010. Climate Change and the Public Law Model of Torts: Reinvigorating Judicial Restraint Doctrines.
  • Goldberg, J.C., 2012. Introduction: Pragmatism and private law.Harvard Law Review.
  • Hart, H. L. A., Raz, J., and Green, L., 2012.The concept of law. Oxford University Press.
  • Laposata, E., Barnes, R. and Glantz, S., 2012. Tobacco Industry Influence on the American Law Institute’s Restatements of Torts and Implications for Its Conflict of Interest Policies.Iowa law review..
  • Moore, M. S., 2010.Placing blame: A theory of the criminal law. Oxford University Press, USA.
  • Ronglin, G. A. O., 2010. Explore the Balance between the Interests of the Law of Torts [J].Journal of East China University of Science and Technology (Social Science Edition).
  • Scanlon, T. M., 2011. Punishment and the Rule of Law.Why Punish? How Much?: A Reader on Punishment.
  • Varuhas, J. N., 2014. The concept of ‘vindication’in the law of torts: Rights, interests and damages.Oxford Journal of Legal Studies.
  • Winfield, P. H., 2013.The Province of the Law of Tort. Cambridge University Press.
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