The Law of Tort - Essay Example

The Law of Tort Introduction: A tort is a legal wrong, whereby a Plaintiff has suffered damages due to the negligence or wrongful conduct of anotherperson. Tort offers an option for the victims to shift at least some of the costs for the damages that they have to bear on to others who may be partly responsible for the fate of the victim. In order to establish a cause of action under tort, three aspects must be established: (a) The victim should have suffered serious harm (b) The harm must be the result of an act of omission or some direct wrongful action of the defendant (c) There must be a violation of some duty expected from the defendant. Liability under tort is generally determined along the lines of (a) strict liability or (b) no fault liability. Under the tort of strict liability, a defendant will be obliged to pay damages for a breach of duty of care and the Court will not question whether or not the defendant has acted in a justifiable manner. On the other hand in a case of no fault liability, it is possible that a victim may not receive damages for the harm caused if there has been a good justifiable reason for the wrong that has been perpetrated on the victim. Bearing these factors in mind, there are two avenues that Ron could consider in recovering damages in tort. On the one hand, he could bring a tort for negligence and breach of duty of care on the part of Nurse Emmanuel, and/or hold the owners of the property, i.e, Rapidbuild, responsible for his injuries under Occupier’s liability. Both the options are discussed in detail below, in order that Ron’s parents may opt for one or both the options. There is no doubt that Ron can indeed bring an action in tort, because for such an action to be actionable, some harm should have been suffered due to a wrongful act and Ron may be able to prove both of these. Occupier liability: The Occupiers Liability Act of 1957 imputes liability upon owners for premises that they may own, including fixed and immovable structures on it1. The fence on the land would therefore qualify as immovable property upon the land owned by Rapidbuild. The Company will be deemed to be the occupier in this case, because it is owns the property and is also in a position whereby it can exert a sufficient degree of control over the premises. Although Ron and Kevin would be deemed to be trespassers for purposes of this Act, there will be recourse available for the children. Prior to 1972, occupier liability was limited, for example in the case of Robert Addie and Sons v Dumbreck2, where a child died but Lord Hailsham limited the liability of the occupier, especially towards trespassers, when he stated that an occupier would be liable only “where the injury [was] due to some willful act involving something more than the absence of reasonable care” or when the occupier had demonstrated a “reckless disregard of the trespasser’s presence.” But in the case of Robert Addie, the defendant was able to prove that the child had received sufficient warning about the dangers on the property. Ron’s case however presents scope for relief. While it is true that the existence of the fence was in effect a warning to keep out, it has been established after 1972, that in the case of children, there is special provision that must be made because they are often unable to grasp the real dangers that may be inherent in a property and may end up getting into trouble.3 The Occupiers Liability Act states that an occupier owes “a duty of care” to all lawful visitors.4 The case of British Railways Board v Herrington5 was a landmark case because it established a precedent that occupiers owed trespassers a “duty of common humanity”. This would mean that the occupier has a responsibility to maintain his premises in a sufficiently safe condition so that no undue harm is caused, even to unlawful visitors. This is stated under Section 2(2) of the Occupier liability Act, wherein an occupier is required to take care to see that his property is reasonably safe at all times and under all possible circumstances so that even an unlawful visitor would be safe while using the premises. Section 1(3) however clarifies the extent of this responsibility, which is that the occupier will be liable for those kinds of risks that are reasonably foreseeable or can be estimated, but will not be responsible for those dangers which he cannot foresee or which occur as a result of deliberate risk taking on the part of the victims. Applying this in Ron’s case, there are some causes of action that provide for a strong action under the Occupier’s Liability Act of 1957. First of all, Ron and Kevin are not so young that it will be reasonable for an occupier to expect that they will be accompanied by an adult at all times. For example in the case of Phipps v Rochester Corporation6 the trespassers were aged 5 and 7 and the young boy fell into a ditch. The Court held the owners not responsible for damages he suffered because they held that such young children should not have been allowed onto dangerous property without adult supervision and it would not be possible for the occupier to maintain the necessary standards to ensure that very young children were properly supervised. But, as was established in the recent case of Jolley7 where children are concerned, the Courts generally expect that occupiers will take on a reasonable standard of responsibility to ensure their safety. The fact that the fence was rusted is a strong point in favor of Ron’s case. This shows that the property had not been maintained properly and that the rusting fence had not been taken care of according to normal maintenance standards. First of all, Rapid Build has not hired any caretaker for the property, who could have noticed the trespassers and warned them about the dangers of the fence. Secondly, no warning signs were posted either near the fence or anywhere around, warning that it could be dangerous. In this context, it would be reasonable for a Court to conclude that the dangers from a heavy fence that was already rusted would be something that an occupier could reasonably foresee and provide for. At the very least, there should have been a warning sign or board about the dangers associated with the fence. But in reality, none of this was done, which in fact could be construed to be a violation of Section 2(2) of the Occupier Liability Act of 1957, which requires occupiers to maintain their premises in such a condition that they are reasonably safe at all times. Not only did Rapid Build fail to replace a fence that was falling apart and was already rusted, they also failed to post any warning signs about the dangers posed, neither did they bother to employ any caretaker who could have warned trespassers of the dangers. As a result, the injury was caused to Ron and this injury could be directly attributed to a failure on the part of Rapid Build to maintain an adequate standard of care. As a result, there is a breach of his duty of care to maintain his premises and protect trespassers against dangers inherent on his property and Ron could bring a suit against Rapid Build for negligence and breach of duty of care under the Occupier Liability Act of 1957. Since Ron has suffered grievous personal damage as a result of the injury, due to which his leg has been amputated, it is likely that the Courts would hold Rapid Build at least partly responsible for the harm suffered by the young boy who had lost his leg at such a young age. Duty of care: In Ron’s case, it is not only rapid Build that would be held responsible for Ron’s fate. Nurse Emanuel would also be held liable under tort for negligence and a failure of duty of care. In establishing a cause of action against Nurse Emanuel, Ron as a Plaintiff, will have to establish that: (a) that nurse Emanuel owed him a duty of care (b) she breached this duty of care (c) As a result of this breach of duty, there was some damages caused.8 In this context, there are several interesting cases that may be considered, which could help to determine Ron’s status as a victim and the strength of his case. The tort system of compensation for medical injury is not enforced merely to provide compensation to the victims rather it is also intended to introduce accountability in medical personnel and to prevent substandard care.9 This system is mainly intended to improve clinical care in hospitals, however in view of the fact that medical personnel are professionals, there is a certain standard of care that is expected form them which may also apply in a non clinical setting. The case of Donaghue v Stevenson10 was one of the first cases to establish the fact that remedies could exist in tort on the basis that all owe “a duty of care” to “their neighbor”. In this case, Lord Tomlin stated: “…acts or omissions which any moral code would censure cannot in a practical world be treated so as to give a right to every person injured by them to demand relief.” However, he refined this further by clarifying a duty of care that one owes to a neighbor as follows: “The rule that you are to love your neighbour becomes in law, you must not injure your neighbour….you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”11 Therefore in Ron’s case, nurse Emanuel appeared like a good Samaritan to help him when he was injured and thereby fulfilled the first part of the condition that was laid out in the case of Donaghue that one must not injure one’s neighbour, however as far as the acts of omission are concerned, it may be noted that Nurse Emanuel has been woefully lacking. As a professional medical practitioner, she would have been aware that since Ron’s leg was so badly gashed, it would require special treatment and whatever temporary treatment she could give him at that time would not be adequate. She would have definitely been expected to be able to foresee that complications could develop, especially since she has not treated Ron’s wound with any antibiotic. The assumption of responsibility is one of the factors that will determine liability, in this case since Nurse Emanuel assumed responsibility for treating Ron, she should have at the very least gone so far as to warn him to follow up on the treatment. In the case of Caparo v Dickman, Lord Bridge commented; “It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of that duty by reference to the kind of damage…”12 In this case, it was held that in order to determine whether a duty of care exists in a specific case, “one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighborhood such that in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter- in which case, a prima facie duty of care exists.” Applying this qualification in the case of Nurse Emanuel, it may be argued that she did not share such a relationship of proximity with Ron. However, in her reasonable contemplation as a medical professional, it was certainly foreseeable on her part that carelessness on her part could cause harm to the young boy. By leaving the young boy outside his home without ensuring that she at the very least, met and spoke to a responsible elder on the necessity to continue the treatment and follow it up promptly at a hospital, Nurse Emmanuel was guilty of a serious shirking of her responsibility. Through an application of the precedent set in the case of Caparo v Dickman, Nurse Emanuel owed a prima facie duty of care to Ron and this duty of care has been breached through her carelessness. Moreover, the case of Caparo had laid out the qualification that the scope of duty is to be assessed in reference to the kind of damage that has been done. In Ron’s case, it can be easily seen that Nurse Emanuel’s negligence and carelessness has had very serious consequences. Since Ron was not promptly treated with a tetanus shot, this was why the infection set in and his leg had to be amputated. If Ron’s injury had been treated in a hospital, it would have been a mandatory question that would have been asked of him, as to whether or not he had received his tetanus shots since he was the victim of an injury. But Nurse Emmanuel, inspite of being aware of the general aspects of an injury and the possible complications that could result, did not so much as bother to enquire whether or not Ron had received his tetanus shots yet, neither did she advise him to go the hospital to receive some antibiotic treatment, inspite of being aware that the possibility of infection always exists in the case of a wound. In fact, because Nurse Emanuel is a medical professional, this makes her particularly liable for breach of duty of care. In the case of Hedley Byrne13 there was no formal contract in place between the Plaintiff and the defendant, yet the defendant was deemed to be liable for the economic losses suffered by Plaintiff by virtue of being in a situation where a special relationship existed - of a professional provider of services, which implies a duty of care, and the Courts recognized that concurrent liabilities in tort could exist although a remedy does not exist in contract. The case of Hedley is therefore a notable case in that the Court imputed liability for negligence and misstatements.14 In this case, the House of Lords considered the matter of duty of care that is owed by a professional provider of services, upon whom a duty of care will be imputed because it is likely that the professional’s advice will be relied upon by the person in question. There is an issue here of trust that a lay person would repose upon a professional provider of services, since they will be assumed to possess the specialized knowledge that will make their advice valuable. Since Gladys Emanuel is a nurse, it is quite natural for Ron to have trusted implicitly in her judgment. She took care of his leg for him and because she is a professional nurse, Ron would have had to reason to doubt or question her abilities in this matter. Therefore, if she did not advise him to go to a hospital, it is quite likely that Ron’s parents would have also concluded that it was perhaps not necessary, since a professional nurse had already attended to Ron’s wound and had certainly not recommended that he immediately follow up the care with a visit to the doctor. Two alternative situations may be considered here. (a) If Nurse Emanuel had warned Ron to follow up the preliminary care she had administered with a visit to the hospital, and Ron and his family had not bothered to heed her advice, she would have had no further liability under her prima facie duty of care that she owed to Ron. (b) If Gladis Emanuel had not been a professional nurse, she would not be held to be liable for any deterioration in Ron’s condition, since she could at best get him home and give him some preliminary treatment form her limited fund of knowledge as a non medical professional. In both these cases Ron would have had no recourse to any damages under tort from Gladis Emmanuel. However, in the present instance, Nurse Emmanuel undertook to treat Ron, therefore in effect, she was accepting responsibility for his treatment of her own accord and her duty of care went far beyond merely leaving him at home. The acceptance of responsibility by a professional provider of services was clearly laid out in the case of Hedley Byrne as follows: A reasonable man, knowing that he was being trusted or that his skill and judgment were being relied upon, would I think, have three courses open to him. He could keep silent or decline to give the information or advice sought, or he could give an answer with a clear qualification that he accepted no responsibility for it….or he could simply answer without any such qualification. If he chooses to adopt the last course, he must, I think, be held to have accepted some responsibility….”15 In this case therefore, it may be noted that Nurse Emanuel appears to have settled for the last option and given her professional assistance without any qualification, therefore she has chosen to accept responsibility. Although the case of Hedley Byrne was in specific reference to financial advice, the principle established in this case was later extended to all professionals in the case of White v Jones.16 Therefore, from the foregoing, it may be noted that there are several factors which present a good case for Ron. Firstly, Nurse Emanuel was a medical practitioner and therefore her advice was being relied upon more than an ordinary person’s recommendation might have been. Although she did not know Ron personally, by virtue of her professional relationship with him in her capacity as a provider of medical services, a prima facie duty of care rested upon her to provide adequate and proper care for Ron. She could have chosen to reject care or have offered her care with the qualification that she would not be responsible for any consequences that may result from the wound, however she did not bother to do any of these things. Moreover, in spite of being aware that her professional advice was being relied upon, she did not bother to provide Ron and his parents with the right advice about what to do, but acted in a distinctly careless manner in her professional capacity by offering incomplete care and not qualifying it either. Therefore, she will be liable in a Court of law for negligence, careless and breach of duty of care towards Ron. In some cases, a lack of professional responsibility has also been deemed to be criminal. For example, in the case of R v Dytham17, a police officer who was off duty, stood by and watched passively as a man was beaten to death outside a nightclub. He was convicted of willful misconduct in public office and as Widgery, CJ put it, “The allegation was not one of mere non feasance but of deliberate failure and willful neglect.”18 In this case also, the conduct of Nurse Emanuel could very well be comparable since she has also been guilty of negligence, deliberate failure and wilful neglect. Although her carelessness did not cause death in this instance, nevertheless it is definitely a dereliction of her professional duty. There are some people such as medical professionals who never go off duty, in the sense that when an emergency occurs they are expected to put their skills to use in the service of the community and in helping people who are in a crisis, so that emergency help is provided to them until they can receive the right assistance. Nurse Emanuel had an obligation to provide the right kind of help for Ron or at least clarify that she would not be responsible for any further problems and that the service she had given was the end of her professional obligation. In this way, the onus of responsibility would have been upon Ron’s parents to ensure that he was adequately treated. In that case, if anything further had happened to Ron due to the parents lack in taking the child to the hospital, it would have been deemed to be the fault of the parents and Nurse Emanuel would have been absolved of responsibility. As the case stands however, there is a good cause of action against her on the issue of tort, failure in her duty of care and breach of the same that has been the direct cause for the amputation of Ron’s leg. In cases involving medical personnel Vincent argues that an optimal compensation system for victims of medical errors would reduce injuries but they should also be used as a basis to reduce errors, since the tort exercised in these cases is based upon the principle of individual fault.17 In practice however, tort in this area has proved to be slow, costly and blame oriented. The fear of having to face liability for any damages may cause physicians or medical personnel to refuse care to patients and may also penalize those who genuinely make a mistake or when an unforeseen medical emergency could be the cause of unanticipated damages. No fault compensation systems are being increasingly mooted in the case of medical accidents as opposed to tort. The law of tort requires that a claimant for damages must prove the harm that has been done and also prove that the harm has been caused through a breach of the duty of care. Alternative measures that have been suggested include alternative dispute resolution, structured payouts instead of large lump sum payments as well as receiving long term care for the damages that have been caused.18 This could also be a good option for Ron to consider in this case, since he will have to prove that the amputation of his leg was the direct result of the error perpetrated by Gladis Emanuel and this could present problems in terms of actual execution, while the use of an alternative dispute resolution process sin this case may be able to bring faster relief to Ron and his claim would be investigated rapidly without having to resort to an adversarial process. The hospital or clinic that Gladis is affiliated with will be able to assist in a speedy resolution of the case and some settlement of damages for Ron. Conclusion: Therefore, in conclusion, there are three courses of action open for Ron’s parents to consider, which are: (a) Bring an action in tort against Rapid Build under Section 2(2) of the Occupiers Liability Act (b) Bring an action in tort for breach of duty of care against Nurse Gladis Emanuel (c) Try to work out an arbitration settlement through an intermediate forum such as Nurse Emanuel’s employers, for recovery of damages for personal injury. References: * British Railways Board v Herrington (1972) AC 877 * Breach of duty of care [Online] Available at: http://www.davidevans-law.co.uk/ clinical_negligence.htm; accessed 2/2/2006. * Department of Health, 2001. Clinical negligencewhat are the issues and options for reform? London: Stationery Office * Donaghue v Stevenson (1932) AC 562 * Dorset Yatch Co Ltd v Home Office (1970) AC 1004 * Fenn P, 1993. Compensation for medical injury: a review of policy options. In: Vincent CA, Ennis M, Audley RJ, eds. Medical accidents. Oxford: Oxford University Press, pp 198–208. * Hedley Byrne v Heller (1963) 2 All ER 575 * Jolly v Sutton LBC (2000) 3 All ER 409 * Occupiers Liability Act of 1957 * Phipps v Rochester Corporation (1955) 1 All ER 129 * Robert Addie and Sons (Collieries) v Dumbreck (1929) AC 35 Read More