The Liability for Negligence - Essay Example

Torts law Introduction Liability for negligence is founded on the principles of duty of care, breach of that duty and the resultant damage and loss. The defendant must have been implicated in all these circumstances to become liable. In the instant case, the service provider Family Friendly Fishing had a duty of care to their patrons Mickey and family in that the fishing vessel and accessories should have been kept free from defects especially as the ones involved in dangerous sports. Though the captain of the vessel Neil already warned the service provider of the defective condition of the fishing equipment, the service provider brushed it aside in a casual manner saying no untoward incident had happened in the past 25 years generally without paying attention to the particular boat and equipment. It is not the case of the service provider that even if the fishing equipment had been in good condition, the accident could not have been averted given the fact hooking of such a huge fish is capable of leading to such an eventuality as not a foreseeable risk and presence of tuna fish in that coastal area is a rare phenomenon. Hence the Family Friendly Vessel’s owner is clearly responsible for the injuries suffered by Mickey’s wife June and his daughter Gina. Lord Atkin in Donoghue v Stevenson1 (1932) laid down that in tortious liability due to negligence, the above requirements of duty of care, breach of that duty and loss and damage due to that breach should be met. In fact Donoghue case gives liberty to proceed against those who are not privy to the contract unlike in the present case wherein there was definitely a contract that existed between Family Friendly Fishing and the Mickey family. Hence it is all the more appropriate to hold the vessel owner directly liable to June and Gina for loss they have suffered. This principle laid down in Donohue v Stevenson was adopted in Australia in Grant v Australian Knitting Mills and Another.2, though both were from the House of Lords. The Family Friendly Fishing can not avoid the damages under the pretext of the inherent risk involved in such dangerous sports because, but for the defect this mishap would not have occurred. The res ipsa loquitur doctrine can not come to the rescue of Family Friendly Fishing. The doctrine is understood as “Control [by the defendant manufacturer] during the process of manufacture was sufficient, once the plaintiff has eliminated himself and other extraneous forces as likely causes of the injury”3 They had the duty of care to the patrons by foreseeing such an eventuality. Family Friendly Fishing can have however recourse to the fishing equipment manufacturer for any latent or apparent defect in it which was the cause for the mishap occurred while fishing provided the equipment manufacture’s warranty is still in force by virtue of maintenance contract or otherwise since it is assumed to be 25 years old, by placing the duty of care and others on the shoulders of the equipment manufacturer. Assuming there was no negligence on the part of the Family Friendly Fishing and the accident occurred due to inherent risks involved due to the huge size of the fish which could not have been foreseen, then the service provider can avoid liability as decided in Waterways Authority & Anor V Mathews (2003)4 where in New South Wales Court of Appeal overturned the decision by the New South Wales District Court which held defendant liable for $ 144,260 for the injury sustained by the 63 year old plaintiff for the reason that ‘obvious risks are obvious to all concerned’5 The duty owed by an occupier of land to an entrant is a high one; Persons who exercise a degree of control over premises must usually exercise that control for the safety of persons who are at some foreseeable risk on those premises; Negligence on the part of the plaintiff does not automatically negate a defendant’s duty of care; When a duty exists in relation to a risk, the fact that comparatively cheap means are available to cope with that risk usually compels a finding of negligence; and The absence of any prior accident is not necessarily conclusive of the absence of negligence in the defendant 6 In another decision concerning Cafest V Tombleson (2003)7, the roller skaterer had her right wrist broken. Although in the trial she was awarded $ 350,000 as damages payable by the skating company, she lost to the appellant on his appeal. The court of appeal observed that the trial judge failed to observe the skating company’s scope of duty and found that the “the defendant acted as a reasonably prudent person should, by exhibiting warnings of the risks of skating and by providing safety equipment and areas for beginners to skate. The defendant’s failure to eliminate all risks was not of itself demonstrative of a want of reasonable care.”8 This will help Family Friendly Fishing only if they had not neglected in their duty of care in maintaining the fishing equipment in good condition. As for Neil, the captain of the vessel on duty, he can not be held responsible for his master’s failure in his duty of care. Even otherwise, his master Family Friendly Fishing is vicariously liable for any contributory negligence on which he is proceeded against by the probable defendants because he was well within his rights to decline to take the vessel to the sea having the knowledge of defective condition of the fishing equipment. Regarding Mickey, he has undergone enormous trauma and mental agony because of the failure on the part of Family Friendly Fishing whom he can sue for damages. June and Gina who lost an eye and left hand respectively due to the consequences of the accident are entitled for damages from Family Friendly Fishing who had the primary duty of care to them which they neglected to observe. June can not claim damages from Gosford hospital for amputation of her leg due to blood poisoning as it was a not foreseeable risk over which no one had control. Saving her life was more crucial at the time of surgery and the blood poisoning could not be foreseen in spite of every care as any man of prudence would have taken. However Family Friendly Fishing is liable even though it was not the direct cause of the accident. In Chapman v Hearse,9 while the plaintiff was driving negligently, his vehicle collided with another one and as a result he was thrown out. While he was being attended upon by doctor Dr Cherry who had happened to be at the scene of accident, Hearse ran over his vehicle negligently on the doctor who got killed in the impact. Dr Cherry’s widow claimed successfully from Hearse for his negligence. In a subsequent action by Hearse against Chapman, it was held that Chapman was liable due to his contributory negligence leading to the death of the doctor. Hence applying the same analogy, though the Gosford Hospital is not liable, Family Friendly Fishing who contributed to the ultimate amputation of the June’s left hand should be held liable for her loss. It was observed in Chapman V Hearse as follows Perhaps, some confirmation for the proposition that the risk was substantial may be found in the fact that within a minute or two, or even less, Dr. Cherry was run down by a driver whose vision of the roadway must have been impeded to a great extent by the prevailing conditions. In these circumstances, we have no doubt that Chapmans negligence must be regarded as a cause of Dr. Cherrys death and since, for the reasons which we have given, some casualty of that character was within the realm of reasonable foreseeability the judgment against Chapman should stand.10 The learned judges drew support from the decision in Ferroggiaro v Bowline and observed follows to arrive at the above conclusion. Perhaps, much the same thing was said in Ferroggiaro v Bowline 11 when it was observed that "the fact that the intervening act of a third person is a negligent one will not make it a superseding cause of harm to another for an injury which the original actor helped to bring about if the original actor at the time of his negligent conduct should have realized that a third person might so act".12 Even though it is not similar to the situation Gosford hospital is placed in, it is worthwhile to mention another case of the USA, Palsgraf V Long Island RR Co13 in which the train guard pushed a passenger without knowing what he was carrying resulting in explosion of crackers he was carrying and killing Palsgraf who had been standing there on the opposite side of the platform. It was held that the Railway Company was not liable as it had no duty of care since there was no sign of crackers inside the passenger’s package and hence it could not be foreseen. Hence unless an event is foreseeable, one can not be expected to exercise duty of care. Yet Gosford hospital in spite of exercising duty of care to save the patient June, they could not foresee blood poisoning and hence can not be held liable but at the same time Family Friendly Fishing should be held liable for contributory negligence as held in Ferroggiaro v Bowline stated above. In the case of the mentally deranged Vietnam War veteran Jack who suffered deep nervous shock due to crash-landing of the Helicopter of the Gosford hospital, the claim on Gosford on the hospital is farfetched. But he is advised to claim from Family Friendly Fishing along with Mickey and family as per the decision in Chapman v Hearse mentioned above. In sum, the liabilities arising out of negligence as in the instant case are a part of Torts law known as civil wrong. When misfortune strikes, the victim suffers loss of money, property and even life. The costs of misfortune except those falling under torts are borne by the community. “Tort law is one of the institutions political communities develop in order to allow victims the opportunity to shift the costs that befall them to others”14 There are three basic elements of civil wrong. There must be a wrong, harm must be caused by it, and there must be a connection between the wrong doer and the victim. However it can not be a tort if some one beats another in sports or competition because of which the loser suffers loss. Similarly in business, there is no tort if some body loses in the competition. The reason behind Tort liability therefore is committing a wrong and breaching a duty of care to the victim. Duty of care is the concept based on which courts have to treat cases in abstract as could be observed in Hill v Chief Constable of West Yorkshire (1989)15. In this case when the duty of police was discussed, it was observed that there was no duty of care existed on the part of the police. A woman was murdered by a criminal and it was argued by her estate that the Chief constable should have nabbed the murderer. It was held that there was no duty as such to nab the criminal on the part of the police unless there was a situation police finding the murderer. Besides, there has to be proximity between the litigating parties without which it is not possible to hold a person liable. In the case of Caparo Industries Plc V Dickman (1990)16, investors sued auditors for having negligently prepared the accounts of the company and even though it was held that there was no proximity between the litigants and hence the accountant was held not liable, House Lords reversed it saying that a duty will be found under an authority and “new duties should be developed with reference to forseeabilty of damage, proximity between parties and what is fair, just and reasonable.”17 Conclusion As the torts are now governed by Civil Liability Act 2002, much is not left to the interpretation of the courts under common law. As one judge observed, blame culture should be stopped at some point to enable unjust enrichment by the claimants. Bibliography Cases Cafest v Tombleson (2003) NSWCA 210 Caparo Industries plc v Dickman 1990 2 AC 605 Chapman v. Hearse106 CLR 112 1961 - 0808A - HCA Donoghue v Stevenson (1932) AC 562 Ferroggiaro v Bowline, (1957) 64 Am.L.R., 2d. 1355 Grant V Australian Knitting Mills and Another (1936) AC 85 (PC) Hill v Chief Constable of West Yorkshire (1989) AC 53 Waterways Authority & Anor v Mathews (2003) NSWCA 330  Articles Boas Gideon 1994 at page 12 “Part VA of the Trade Practices Act: A Failure to adequately Reform Product Liability law in Australia” Bond Law Review Volume 6, Issue 2 1994 Article 2 Introduction to Tort Law < http://www.powerapple.com/modules> accessed 8 Oct 2007 Parker David of Moray & Agnew Find Law Australia ‘ Obvious risks are obvious to all concerned’ Theories of Tort Law, Stanford Encyclopedia of Philosophy Oct 20, 2003 Read More