Responsibility for Violation of the Law of Negligence - Essay Example

IS WIRRAL LIABLE FOR TORT OF NEGLIGENCE? Introduction The negligence of tort is the most common form of negligence, and the duty of care owed to thestrangers is constantly being widened by the courts of law. The standard of duty to care has evolved to encompass almost all areas of life. Courts have long since recognized the liabilities arising out of breach of such duties or torts and the rights of persons suffering from such torts or being injured or suffering damages as a result of various sorts of tort. Courts have awarded damages to the injured and have also issued injunctions to prevent further repetitions of breaches. The Case at Hand Wirral Utilities has dug a trench along the pavement and so as to prevent anybody falling in the trench, placed at one end a long handed hammer and at the other some picks and shovels. One end of the hammer lay on the pavement, and the other was hooked on to some railings. These precautions would have been sufficient for the public at large who used the pavement, but the claimant was special, in that he was blind. While walking to his work along the pavement as usual, he had a fall because he tripped over the end of the hammer lying on the pavement. Normal people would have seen the danger, but the claimant did not. He was himself not negligent. His white stick had passed over the hammer. As a result of the fall, he banged his head against the pavement. In the resultant injury, he became deaf and had to retire early from the job. Questions to be addressed in the Essay The claimant has sued Wirral Utilities for the tort of negligence. The case is founded on four scenarios or likely turns of event. First is whether Wirral Utilities owed any duty of care to the public at large who utilized the pavement. The next question is whether Wirral utilities breached that duty owed to the claimant. It is the third point to be considered whether the damage to the claimant i.e. the injury caused to him arising from such negligence was foreseeable by a party in a position as Wirral utilities. Ultimately the essay will address the possible defences that Wirral utilities may have against the action brought by the claimant. Tort People have rights in law apart from those arising out of contract. These rights can be enforced by the injured party. When these rights are infringed by somebody out of which the person is injured, and a damage results out of that injury, the party whose act or omission led to the tort is liable to the person aggrieved. Law imposes a duty upon everybody to take care that no one suffers as a result of his act or omission. Thus, in law, a person is duty bound to keep his dog on a leash and if the dog is let loose inside the compound, to post a notice to that effect on the gate. The remedy for tort is a claim for damages. Injunctions can also be sought to prevent continuing torts. Thus a claimant may seek damages for the loss occasioned by the negligence of another to take care that his dog is put on a leash. Another may pray for an injunction from the court to stop nuisance being caused to him by the constant din of a workshop in a residential area. Concepts of torts have evolved over time. But it is in the area of negligence as tort that the courts have given a whole new dimension to the liability of persons from whom duty is owed to the person injured, whether statutory or arising out of common law. Tort of negligence can be defined as liability for a failure to take proper care to avoid inflicting foreseeable injury. In the historical times only acts constituted torts. Most torts are wrongful acts. But the courts have ruled that an omission can also give rise to liability. The law will grant relief to persons who have suffered because of omissions of parties whose omissions have led to injuries. In Donoghue v Stevenson1 [1932] AC 562 HL, the House of Lords per Lord Atkin, held that “ … You must take reasonable care to avoid acts or omissions which you can reasonable foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer 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…” There are two liabilities. One is contractual. In this sort of liability, the parties owe each other certain liabilities created by the contract between them. Both parties have reciprocal rights. In the other sort of liabilities, there is no contract between the parties, and the liability of one towards the other or others arises out of duty of the duty of care of the first party which he owes to others. Negligence Negligence is best defined by Charlesworth in his important book “On Negligence”. Negligence is a concept in common law. The concept of tort itself is taken from common law. In current forensic speech, negligence has three meanings. They are (1) a state of mind, in which it is opposed to intention; (2) careless conduct, and (3) the breach of a duty to take care imposed by common or statute law.2 Negligence as a state of mind is opposite of intention. Negligence can be a tort and a crime. Unless there is a statutory duty of which there is a breach, it can not be a crime. Duty of Care In The Nicholas H (Marc Rich & Co v Bishops Rock Marine) 1995, the Court of Appeal applied certain tests regarding the duty of care and foreseeability of the damage. The questions as formulated by the court of Appeal were, 1. Was the damage reasonably foreseeable by the defendant as damage to the claimant at the time of the negligent act or omission? 2. Is there sufficient proximity or neighbourhood between the parties? 3. Is it fair, just and reasonable that the law should impose a duty on the defendant on the facts of the case? 4. Is there a matter of public policy that requires that no duty of care should exist? The best description of law with regard to remoteness Because of the confusing and oft en difficult questions posed by the many cases before courts arising out of negligence, there is no simple way to describe the one principle on which the notion of remoteness of likely injury turns. However, it is probably best described by Lord Denning in Roe v Minister of Health3 “In all these cases you will find that the three questions, duty, causation and remoteness, run continually against each other. It seems to me that they are simply three different ways of looking at one and the same problem. Starting with a proposition that a negligent person should be liable, within reason, for the consequences of his conduct, the extent of his liability is to be found by asking the one question: ‘Is the consequence fairly to be regarded as within the risk created by the negligence?’ If so, the negligent person is liable for it; but otherwise not. Application of law according to definitions Let us now see whether the tests laid down apply to the facts at hand. It is necessary for the claimant to prove in order to succeed that the claimant has acted in good faith and without carelessness, which is true in this case. The claimant, a blind man was carrying a white stick with him with which he could navigate and walk along the road. The second essential thing for the claimant to prove is that there was a sufficient relationship of proximity between defendant and claimant. In the instant case, the claimant is one of the passers by on a public street and he is perfectly entitled to walk on the pavement. Even otherwise he takes that route regularly. Thus according to established principles of law, there is a sufficiently proximate relationship between the claimant and the defendant. Applying the principles in Donoghue v Stevenson, the claimant being a neighbour in that he was a user of the street beside which the defendant had dug a trench, it ought to been contemplated by the defendant to consider the fact of the defendant passing upon the road and to have provided for that. The next thing to be proved is that it was reasonable that the defendant should foresee that damage might arise from his carelessness. Here, the question of foreseeability of the damage that might occur is so remote that the defendant can not be said to have been negligent in not having taken more precaution than the placing of warning signs on either side of the trench. According to the principle laid down in Bolton v Stone4 by Lord Porter, “It is not enough that the event should be such as can be reasonably foreseen; the further result that injury is likely to follow must also be such as a reasonable man would contemplate, before he can be convicted of actionable negligence. Nor is the remote possibility of injury occurring enough, there must be sufficient probability to lead a reasonable man to anticipate it.” In that case, Lord Radcliffe observed as follows “The law of negligence is concerned less with what is fair than with what is culpable”. In this case, the most important issue is whether the accident such as the claimant had was foreseeable and whether it was the duty of the defendant to take adequate steps to guard against the possible risk of a blind man taking a walk during the night along the pavement. The question provides the statistics that in the place where Wirral utilities was carrying out its work, one in every five hundred persons were blind. It can not be said that the defendant owed any duty of care to the claimant as they could not have foreseen the accident. Lastly, it must be just and reasonable for the law to impose liability on the defendant for being negligent. We have seen that though the defendant was bound by a duty to care for the claimant, he was not in any manner negligent, as there was no breach of the duty to care. Breach of duty to care will come in to play only when the defendant does not take sufficient steps to see to it that the duty of care is fulfilled, that the persons to whom he owes the duty of care are protected against by any risks his acts or omissions may result in. In the instant case, the defendants act is one of omission in that it has been alleged by the claimant that the defendant omitted to take care of the possibility that the claimant may get injured and suffer damages because of his negligence. It is also a remote possibility that the claimant would have suffered as he did. Defences available to Wirral Utilities To what defences is Wirral Utilities entitled is the last question to be addressed; assuming that there was a duty of care, that it was breached and that the damage was foreseeable. The first defence that the defendant can take is that of causation. Was the fall caused by the alleged negligence? The second defence is that the accident was inevitable. In The Marsepia, (1872) citing The Virgil (1843) it was observed, “An inevitable accident in point of law is this: viz that which the party was charged with the offence could not possibly prevent by the exercise of ordinary care, caution and … skill” Bibliography Ying Hui Tan, Law Report, The Independent, London Dated 3rd February 1994 http://www.independent.co.uk/arts-entertainment/law-report-no-duty-owed-to-cargo-owner-marc-rich--co-ag-v-bishop-rock-marine-co-ltd-and-others-the-nicholas-h-court-of-appeal-lord-justice-balcombe-lord-justice-mann-and-lord-justice-saville-3-february-1994-1426487.html accessed 10 April 2010 Read More