Business Law - Negligence and Duty of Care - Coursework Example

Running Head: NEGLIGENCE & DUTY OF CARE Negligence & Duty of Care Insert Name Institution Date Negligence & Duty of Care 1.0 Introduction Law can be described as an entity that consists of rules and regulations which are put in pace by the governing bodies. Many people are never aware of the rules and procedures that are supposed to be followed in their countries. This is mainly because of ignorance and lack of interest on such matters. The law can be assumed to be something that exists everywhere. It is through the law that various aspects of people’s lives are defined. The law defines issues such as the economy, political aspect and social issues (Pentony, Graw, Lennard & Parker, 2009). The law can also be considered to be a tool through which people get to know their rights and the limitations to their actions and it is by the same law that judgment is drawn. There are various existing laws that regulate our actions these laws include: criminal law, property law, administrative law contract law, common law international law and constitutional law. It is through these laws that the actions towards each other and towards the state are regulated. Laws are usually created by legal systems based on the laws on responsibilities and rights of a society. It should be understood that legal systems vary from one country to the other though there exists some similarities in some laws. Governing bodies are mainly made by the law and are thereby bound by the law (Buswell, 1997). Among the most applicable laws are the criminal law and the civil law. The criminal law can also be considered as a body of common law which mainly deals with crime and its legal punishment. The criminal law mainly deals with crimes committed against the state. On the other hand civil law differs from the criminal law by virtue of the intensity of the punishments imposed in that the crimes under the criminal law are subjected to severe punishments unlike under the civil law. The other difference between criminal law and the civil law is that for the criminal law one will be charged based on the act and the intent while on the civil law an individual may be charged even without the intent. The civil law mainly governs wrongs committed against another person (Pentony, Graw, Lennard & Parker, 2009). The civil law thus looks at wrongs committed by a person against another person in relation to personal rights as per the law that governs the land. It can thereby be said that the civil law is the basic regulator of people’s actions and deeds towards each other. It is mainly base n codifications of laws passed in parliament or a constitution. Torts should also be recognized under the class of civil wrongs. Torts usually come up when one person breaches an obligation to another individual or the infringement of another person’s legal right (Henderson, 2002). 1.0 Background The law of negligence was mainly created for the reason of making people more responsible in their endeavors. It was as a measure to the exercise of safety so as to protect the public as a whole. Laws were therefore passed based on the various elements and concepts under the negligence law. The laws were therefore base on the reasonable person and level of care expected from the sensible being. 3.0 Duty of care On the element of duty, it is stated that a person is not liable for negligence if the person did not owe duty to the accusing even if the defendant did not act in a reasonable manner. Generally, an individual has a duty to all people to always apply reasonable care for the sake of their property and physical safety. The regulation set for the rationale of duty somehow comes out as unjust. This is because some duties seem to be at extremes. For instance the owner of fish pond owes the public reasonable duty he should thus fence around it and write warnings else he will be liable for negligence. The law specifies that the owner of a property owes no duty to a trespasser. This is quite reasonable because every law offender could be suing for negligence case of any harm during the law breaking. The aspect of duty is mainly used with an aim of limiting circumstances where the accused is liable for the plaintiff’s harm. The question of whether the accused owed duty to the plaintiff lies in the hands of the court, this thus makes the judgment subjective by the fact that duty is not clearly defined out. To handle issues concerning subjectivity courts have formulated rules and regulations to limit an individual’s duty to others. The association between the plaintiffs to that of the accused also determines whether the defendant owes the claimant any duty. There exists an affirmative duty in a case where there is an existing relationship. For instance a school owes duty to its students and a restaurant owes duty to its diners. It is also a person’s duty to restrain from activities that can cause harm to others. It should be noted that an individual has no duty to prevent injury to an individual from an autonomous cause. For instance a swimmer has no duty to a drowning person. Several governments have adopted ‘good samaritan’ statutes this is for the purpose of relieving persons who give emergency from being liable for negligence. The accused falls under the breach of duty for the plaintiff when his conduct does not meet the standard set on the reasonable person. For one not to breach the duty of care one is supposed to act in line with the ‘reasonable man’. This can be illustrated by the case between Blyth v Birmingham Waterworks (1856). 3.1 Historical Approach In the past ages the negligence law was not much addressed this was because such cases could be locally addressed. The law of tort addressed the issue of negligence by mainly using the contributory negligence approach. 3.2 Contemporary Approach In the past decades the law of tort’s approach to the treatment of negligence changed from the concept of contributory negligence to the aspect of comparative negligence. The shift from contributory to comparative aspect was mainly for the purpose of trying to give fair justice to the plaintiff. The comparative aspect of negligence then addressed the issue of unequal treatment of the plaintiff and the defendant. 4.0 Standard of Care Standard of care mainly refers to the level of care a normal or an ordinary, sensible person will exercise in a given situation. The standard of care is mainly based on the reasonable person. This level of care is also used as a detector of negligence. Thus when one fails to exercise some level of care then he or she can be accused of being negligent. It should be noted that the standard of care is not applied uniformly this is due to the fact that the degree of reasonableness may vary from one person to the other. For one not to breach the level of care expected from him he should thus act as a reasonable person would this is as in the case of Blyth v Birmingham Waterworks (1856). The standard of care is thus basically based on the elements and concepts addressed under the reasonable person. 4.1 The Reasonable Person Reasonable person is one of the concepts mainly considered by the negligence law. It is this concept that the basis for judging a person is laid. The reasonable person can also be described as ‘the man on the Clapham omnibus’ or as ‘commuters on the London Underground’ this is as per the cases :Hall v Brooklands Auto-Racing Club (1933)and McFarlane vs. Tayside Health Board (1999) The imaginary reasonable person gives a base by which the behavior of others is judged. Under the negligence law the reasonable person is not just a normal behaving person but a full composition of what the community judges or finds to be a typical society member acting in a situation that might harm the public. It therefore comes out that although a great number of the community members may conduct themselves in a certain way that is not considered to be the set standard of action for the reasonable person. The aspect of reasonable person mainly works at differentiating negligence from intended torts which include battery and assault. Under negligence the plaintiff seeks to prove that the defendant failed to act thus causing harm to the plaintiff while on the other hand on the intentional tort the plaintiff is supposed to ascertain that the accused acted with intent of harming the plaintiff. For instance in a case where a driver under a substance, injures a pedestrian he is liable for negligence based on the reason that a reasonable person would not drive while under a substance because this could be harmful to others. Based on the shallow facts on the negligence concept of reasonable person, some people may find it quite unfair but the law has put in place factors to determine the reasonable person concept. The law thus considers the following aspects: perception, knowledge and experience, special skills, physical characteristics, mental capacity, children, emergencies and the conduct of others. Starting off with the aspect of experience, knowledge and perception the law considers all the three in ascertaining whether a person has conducted himself as a reasonable person would in the same situation. The behavior is thereby judged based on the individual’s observations and actual knowledge because a reasonable person will take this into account. For instance a driver should not speed on a highway if he sees a person on the road. The law also considers a majority of the people to have similar experience, knowledge and perception ability as the imaginary reasonable person. On normal circumstance a person is thus expected to hear what can normally be considered to be audible and see what can be considered as normally visible. A person can thereby not deny basic facts acknowledged by the society. The law also considers an individual undertaking a particular activity to be knowledgeable on that activity as any reasonable person would be (Legal & Eagle, 2003). On the aspect of special skills an individual taking part in an action that needs education, special skills or even experience for instance on the case of pilots. The standard set to measure such a person’s action involves the behavior of a reasonably competent, experienced and skilled person who is qualified to take parting that activity. The hypothetical reasonable person is considered to be competent, skilled and experienced. For instance the case of Gibson v. Trant the attorney is the individual with the special skill hence he should have foreseen what befell the plaintiff. This aspect of special skills mainly applies to doctors, lawyers, barbers, architects, drivers and pilots. The following cases also apply for the aspect of special skills, Nettleship v Weston (1971), Wilsher v Essex Area Health Authority (1986) and Wells v Cooper (1958) It therefore comes out that any person who conducts a service that pertains to special skills whether qualified or not he can therefore be held to the code of conduct of as a qualified person could have been held. This is for the sole reason that the society depends on the special skills offered by the people qualified in them. For instance an unlicensed driver will be judged as per the standards of a licensed driver. The law goes ahead and groups the learners, beginners and the trainees all in the same class this by the fact that they are all considered to be experienced and having the required skills in the particular fields. This though it seems unfair, it works for the protection of the public (Pentony, Graw, Lennard & Parker, 2009). On the next aspect of physical characteristics the law considers an individual’s physical attributes to determine negligence. Physical attributes are taken into consideration mainly because of two main reasons: physical impairment and handicap situations. For instance a blind person is not expected to have seen a car approaching. On the aspect of mental capacity the law does not consider lack of intelligence, memory, judgment or emotional stability as an excuse for negligence. Also in case of voluntary intoxication one is not excused for a behavior or an action that falls under negligence. The two situations are never considered in excusing one for negligence based on the reason that a person’s behavior not their mental state that determines negligence. For the children the law is lenient on them in that some level of negligence is allowed. The under age are not judged by the same standard as the adults. A child’s behavior is judged based on the conduct expected of a child of the same age, experience and intelligence. Unlike for the case of the adults the children’s reasonable person goes ahead to consider subjective factors in determining the reasonable person. It is usually presumed in most states that children are not capable of negligence to a certain age. Once a person reaches a majority age, mostly eighteen he is thereby held by the same standard as the adults. The law applies an exception on children case of special skill aspect. Incase a child takes part in a n activity that requires a special skill then the child will be judged as per the standards set for the adults. The exception is mainly applied for the reason for protecting the public from any harm. For the part of emergencies the law acknowledges that in case of emergencies even a reasonable individual can make a mistake in judgment. A person’s behavior or action in an emergency situation is evaluated based on whether his action under the circumstances was reasonable. For instance the owner of a restaurant should anticipate a fire and thereby put measures in place case of a fire then the owner may be liable for negligence. Finally the law recommends that a reasonable person should consider the behavior of others and thereby adjust his action based on theirs. A reasonable person is thus expected to anticipate the negligence of others (Ben-Shahar, 2003). In case of a suit on negligence the plaintiff has a responsibility of proving that the accused did not conduct himself as a reasonable person could have in same situation. The court thereby gives the jury the required standard of conduct that was expected of the defendant. A plaintiff proves negligence by using the following: a violated statute, circumstantial evidence or even expert witness. In a case where the plaintiff tries to prove negligence by use of a statute, it must be proved that the statute was intended to protect the harm in question. Sometimes physical occurrences which are beyond an individual’s control may be used to excuse the violation of a statute. The accused therefore has a responsibility to ensure that his action was for a rational purpose (Henderson, 2002). 4.2 Guidelines for Breach Based on the reasonable person breach therefore comes up when an individual deviates from the normal expected manner of behavior. It can therefore be said that the standard of care and the elements of the reasonable person are the main base of breach. when an individual breaches a duty of care by the law it leads to negligence. Negligence therefore comes up when a person fails in a responsibility or a duty he or she is supposed to perform. Negligence first came up under the English law. The English law at the time referred to negligence as a legal accountability for failing to act (Legal & Eagle, 2003). Usually in any civil claim there are elements which the plaintiff has difficulty proving based on the predominance of evidence. In a case where the plaintiff can not successfully prove every element of the allegation then he or she can not win the claim. In a case that pertains to negligence the plaintiff has a duty of proving the following elements: breach, duty, causation and damages. In the case of common law, employees may decide to sue their employer for damages in case they suffer injuries or any harm during their term of employment. In the case of employer negligence, if the negligence is proved then the employees are rewarded for the damages but if there was any negligence from the part of the employees then the damages are reduced. 5.0 Sufficient connection in law Connection in law mainly comes up by the fact that all the needed evidence that an individual has breached his duty to another has been sufficiently proved. The plaintiff is thereby expected to prove that the defendant had a duty and failure to meet the duty was the proximate cause of the harm incurred. 5.1 Causation The factor of proximate cause is also a consideration before a defendant if found liable for negligence even though it has been ascertained that the accused owed the plaintiff duty to protect him and breached the duty. Proximate cause is used to refer to justice and fairness; the defendant should be fairly held for the aftermath of his negligence (Buswell, 1997). Proximate cause mainly works at limiting the accused’s liability for negligence by basing his negligence on the aftermath of his behavior. Though this may seem to be easier in a case where the accused has caused harm on the plaintiff it comes out that causation is hard t define and determine. This therefore leaves the plaintiff without the deserved justice. The proximate cause is mostly based on the anticipation of the negligence. It is the court’s responsibility to prove that accuser’s injury was as a ‘direct result’ of the negligence of the defendant. It thus clearly comes out that the whole protocol of the proximate cause disadvantages the plaintiff. It will therefore be necessary if the courts or the legal system in general considered an evaluation of the factor of proximate cause. For instance the case of Gibson v Trant (1991) is a good example of the proximate cause, this is because firstly the lawyer breached a duty, the accuser suffered damages and thereby the breach caused the plaintiff’s harm. It therefore clearly comes out that the lawyer’s negligence was the main cause of the plaintiff’s injury. The cases of Lazy Seven Coal Sales, Inc. v. Stone & Hinds and Horton v. Hughes (1998) also apply under the proximate cause and negligence .The case of an intervening cause comes up when the accuser’s injury comes from more than one cause. An intervening cause usually is the harm caused after the defendant’s negligent action. The existence of the intervening cause does not imply that defendant’s negligence is the proximate cause of the accuser’s injury. The defendant remains liable if he had foreseen the intervening cause. This aspect of intervening cause somehow disadvantages the defendant in that the proximate cause might have been brought about by the intervening cause (Ben-Shahar, 2003). There also comes up the issue of superseding cause, this involves an unanticipated event or result that occurs after the defendant’s negligence. The superseding cause usually works at relieving the defendant from liability while at the same time disadvantaging the plaintiff. It is quite unfortunate that the proximate cause is mainly determined by the people’s sense of wrong and right. This makes it quite hard for a plaintiff to win a case since it is hard to determine causation. On the other hand aspects such as assumption of risk, contributory and comparative negligence disadvantage the plaintiff by pinning him down as part of the cause of what befell him. Starting with the aspect of contributory negligence, as per the common law, an accuser whose act of negligence contributed to the cause of his injury has no claim on the defendant. The concept of contributory negligence works at defending the defendant in a case where the plaintiff was on the wrong. This concept however disadvantages the plaintiff by the mere fact that a very minor negligence from the part of the plaintiff hinders him from any recovery (Buswell, 1997). This concept can also be creating harm to the general public in cases that relate to corporate entities that have a duty to the public this is by the fact that it reduces their feeling of obligation to consider safety. The aspect of comparative negligence comes up to counter the contributory negligence this is by the fact that if the plaintiff played some role in contributing to the injury incurred he has a claim against the defendant only that the compensation is reduced by the percentage of the fault. The aspect of assumption of risk occurs when the defendant is in a position of proving that the plaintiff willingly accepted to venture into the danger that led to the injury caused. 6.0 Remoteness As per the English law, remoteness describes a set of regulations in tort law creating a limit on how much compensation a plaintiff can receive for any harm caused by a defendant. Remoteness is therefore a regulator to the amount of compensation a plaintiff can receive. Remoteness is thereby based on the reasonable person, standard of care, duty of care and causation. Remoteness ensures that the damages are fairly charged on the defendant. 6.1 Analysis From the whole study of negligence it clearly comes out that, somehow the law works against the plaintiff. This is seen from the part of causation and contributory negligence. For instance for the part of causation, the plaintiff is supposed to prove that the proximate cause of his injury was caused by the defendant. While in the case of contributory negligence the plaintiff does not receive any compensation case the defendant proves that the plaintiff was part of the cause of his harm. This therefore comes out that the plaintiff is left helpless by the law that is supposed to protect and give justice. 7.0 Conclusion It can thereby be concluded based on section 5B of the civil liability act that the courts should be in a position to establish that the precautions that the reasonable person could have taken the precautions required if placed in the position of the defendant. For the aspect of duty, it should be defined as taking of reasonable procedure to avoid harm rather than the prevention of an occurrence that will cause harm. The main function of the law of negligence is to help individuals to take responsibility for their action thereby people are considerate in their actions. It should be noted that the awarding of damages based on contributory negligence is a harsh treatment of the plaintiff; it also acts as a form of injustice. The law of negligence thereby comes out as quite stern on the plaintiff hence injustice. The legal systems should thereby consider reforms so that there is fairness on the plaintiff. 8.0 Reference and Table of Cases 8.1 References Pentony, B., Graw S., Lennard J. & Parker, D. (2009). Understanding Business Law, 4th Ed. Australia: LexisNexis Butterworths. Ben-Shahar, O. (2003). The Uneasy Case for Comparative Negligence. American Law and Economics Review 5 (spring). Buswell, F. (1997). The Civil accountability for Personal Injuries Due to Negligence. Littleton, Colo.: F.B. Rothman. Henderson, J. A. (2002) Why Negligence Dominates Tort. UCLA Law Review 50 (December). Legal, A., & Eagle, B. (2003). Bizarre Negligence (2nd ed.). Foggy Bog, Wisconsin, NY: Wearegreat Publishers. 8.2 Table of cases Hall v Brooklands Auto-Racing Club (1933). McFarlane vs. Tayside Health Board (1999). Gibson v Trant (1991). Blyth v Birmingham Waterworks (1856). Blyth v Birmingham Waterworks (1856). Nettleship v Weston (1971). Wilsher v Essex Area Health Authority (1986). Wells v Cooper (1958). Lazy Seven Coal Sales, Inc. v. Stone & Hinds and Horton v. Hughes (1998). Read More