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BRY286- The Tort of Negligence Assignment Sample

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Introduction Of The Tort of Negligence 

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Task 1

The tort law has been an uncodified law adopted from the common law which has emerged as a result of various case laws and has been given by the judges in different cases. These cases are not written but judgments in such cases are given as per the judicial precedents set. A tort is a civil wrong that consists of various wrongdoing leading to injury to the claimant. One such wrongdoing is when a person negligently does any act and causes injury to another person. Hence, the law of negligence is a principle under the law of tort where one person causes injury to another by any act or omission.

It is important to note that there are certain essentials to be established before the court if the claimant wants a successful claim against the defendant. These essentials are the key elements for the law of negligence. The key elements are the duty of care of the defendants towards the plaintiff, the breach of that duty and the injury that occurred to the plaintiff due to the breach. Before discussing the elements in detail, it is important to discuss the meaning and definition of negligence. Reference of the case Alderson B in Blyth v. Birmingham Waterworks Co (1856) 11 Ex Ch 781 can be taken where the court provided for the definition of negligence as “Negligence is something which is not done by a reasonable man or the omission of something which a prudent and ordinary man shall consider doing. The defendant in some cases shall even be held liable if he has unintentionally done something which shall be avoided by a prudent man or omitted to do something which would have been done by a reasonable man.” Thus, it is clear that the defendant can even be held liable if he has done or omitted to do some act without intention (Ehrenzweig, 2020).

Discussing further the elements of negligence, the first one to be established before the court is the duty of care which is owed by the defendant towards the plaintiff. The liability of the defendant under law arises when the defendant fails to fulfil his responsibility under which the plaintiff was the intended beneficiary. Reference of the case Donoghue v. Stevenson [1932] AC 532, can be taken into account where the foundation of the term duty of care was kept by the court. The court, in this case, held the strict liability of the manufacturer. Another case to be considered in this respect is that of Sidaway v. Bethlem Royal Hosp Governors [1985] AC 871 where medical negligence was established by the court and held that the surgeon owes a duty of care towards the patient (Udemezue and Ojeih, 2021).

Discussing further, to get a successful negligence claim, the court has also led down the Caparo three-fold test which was given in the case of Caparo Industries PLC v. Dickman [1990] UKHL 2 where the court laid down the test to determine the duty of care of the defendant. The court opined that a duty of care exists towards the plaintiff from the side of defendant if the harm was reasonably foreseeable by the defendant and it was a direct result of the defendant’s act. Further, it also required the parties to be in proximity and it must be fair and just to incur liability on the defendant (Goldberg, et. al., 2021).

Discussing further in detail regarding the Caparo test, the first requirement is the foreseeability of harm by the defendant. It is clear that if the defendant could see the upcoming harm and continues his act or omission, he shall be held accountable for the wrong to the plaintiff. Reference of the case Fardon v. Harcourt-Rivington [(1932) 48 TLR 215] can be taken where a couple left their dog in the car and left for the market. The dog in excitement broke the window of the car and a glass piece injured a nearby person leading to blindness. But the court gave judgment that the foreseeability of the act was not seen by the defendants as they could only be held liable for the reasonable probabilities and hence, there was no liability established. Another case of Holt v. Edge [2007] EWCA CIV 602 where the plaintiff slipped in the shower and suffered a haemorrhage. She consulted a doctor and was operated on days later and got a brain stroke in the middle of the operation. The court did not establish liability of the doctor as the court held that the doctor could not see the upcoming harm as the condition of the patient was stable and there were no symptoms present of haemorrhage (Plunkett, 2018).

The next requirement in the Caparo test was that of proximity which requires the establishment of a relationship between the defendant and the plaintiff and also establishes there was a close connection between the defendant's wrong act or negligent omission with the injury of the plaintiff. For this requirement, reference of the case Jaensch v. Coffey [1984] HCA 52 can be taken where there were three types of proximity established by the court. The first one is the physical proximity where the court considered how close is the wrongdoing of the defendant and the injury of the plaintiff. The second is circumstantial proximity where the court considered the situation in which the defendant did the act or omission and the plaintiff sustained an injury, for example, the situation and the relation between the employer and the employee. And the last one is the casual proximity where the court considered the directness of the act that is how direct was the injury to the plaintiff (Kyriakakis, et. al., 2019).

The last requirement is that of the remoteness of damage which could be understood from the case of Bourhill v. Young [1943] AC 92. In this case, the defendant was driving negligently and had a car crash leading to fatal injuries to the plaintiff. There was a nearby tram where Mrs Bourhill was passing to catch the tram. She reached the accident site and saw the blood on the road and was eight months pregnant. She had a stillbirth and claimed that it was due to the nervous shock she had suffered seeing the accident site. But the court did not hold the defendant liable for any injury to the plaintiff as this was not foreseeable by the defendant. Also, the injury was very remote and hence, could not be seen by any reasonable man.

Discussing the establishment of liability over the plaintiff, it is also important to note the circumstances where the defendant could be exempted from liability. Hence, there are certain defences available to the defendant where the defendant shall not be held liable for any act or omission under negligence. The first defence available to the defendant is 'Volenti non-fit injuria’. This is a Latin term which means there is no liability and injury if the person wilfully takes it. In other words, this is a voluntary assumption of risk by the plaintiff. But to get defence under this, the defendant is required to prove two elements where he has to satisfy the court that the plaintiff was fully conscious of the danger involved in the act or omission and also had full knowledge of the circumstances and nature of the act or omission done by the defendant. Further, the defendant has to also satisfy the court that the plaintiff has waived all his rights to claim damages (Stoyanova, 2020).

Reference of the case Sidaway v. Board of Governors of the Bethlem Royal Hospital [1985] A.C. 871 can be taken into consideration where the court held that consent given in medical treatments and surgeries fall within the definition of this term and the patient cannot claim damages if he was informed about the aftereffects and risks of the operation and he consents to undergo it. But there has also been an unsuccessful claim of volenti non fit injuria where the defendants have been denied the defence by the court. For this, the case of Baker v. T.E. Hopkins & Son Ltd [1959] 3 All ER 225 (Court of Appeal) can be considered in which a doctor tried to rescue some people who were stuck in well with dangerous fumes. Though he was stopped as the fire brigade was about to arrive and he was asked to wait. Despite this, he went inside and all the workmen and the doctor died. In this claim, the action was unsuccessful and the defendant was held liable and the court gave the judgment that it shall be inappropriate to hold the doctor responsible to take the risk voluntarily merely because he was acting bravely. And hence, there was no defence to the defendants (Owen, 2018).

Apart from this defence, there is another defence available to the defendant which is contributory negligence. Under this term, the plaintiff has equal contribution in the risk and injury occurring to him and thus, the defendant is exempted from the liability. For example, if a pedestrian is negligent in crossing the road and is injured by a driver who is also negligent in driving, the driver shall not be held liable for the negligent act and no claim for damages shall be entertained. Another example of contributory negligence can be considered as that of diving without proper equipment and without assuring the depth of water. Hence, in such cases, the defendants have a defence of contributory negligence as the plaintiff is equally responsible for the injuries sustained by him. But it is also noted that the protection under contributory negligence is not given to the person who has acted beyond the level of ordinary negligence and has done any act or omission extremely malicious (Goudkamp and Nolan, 2019).

Task 2

As asked for, the following presented is a piece of advice to get a successful claim for vicarious liability against the company UC Building Supplies Ltd. As per the facts of the case, Mr Sohal was injured by the driving of his colleague. He was driving a truck that came backwards and injured Mr Sohal. From the act of the driver, the company shall also be responsible as per the application of vicarious liability.

The principle of vicarious liability is applied to hold the principal liable for the actions of the subordinate or hold the principal liable for the act of the servant. As per vicarious liability, employers are also liable for the act of the employees if done negligently in the course of business. But to hold the employer liable, there shall be a relation between the employer and employee and hence, it is important to differentiate between an employer and independent contractor (Gray, 2018). The court has determined three tests to hold the employer responsible for the actions of the employee. These three tests are the control test, the organisation test and the sufficient relation test. Reference of the case

Hence, the company UC Building Supplies Ltd is responsible for the actions of the driver who was driving negligently within the course of employment and injured Mr Sohal.

Thus, to conclude, it can be stated that the tort of negligence attracts liability if the court is satisfied that all the three elements of negligence have been fulfilled that is the defendant had a duty of care, he had breached the duty and the breach directly led to the injury of the plaintiff. Further, there are some defences available to defendants in such cases where they could get exempted from liability like the defence of contributory negligence and volenti non fit injuria. Apart from this, the second task is a piece of advice for Mr Sohal to hold the corporation responsible for the negligent act of employee under vicarious liability.

Bibliography

  • Ehrenzweig, A.A., 2020. Negligence without fault. University of California Press.
  • Goldberg, J.C., Sebok, A.J., Zipursky, B.C. and Kendrick, M., 2021. Tort law: Responsibilities and redress. Wolters Kluwer.
  • Goudkamp, J. and Nolan, D., 2019. Contributory Negligence in the Twenty-first Century. Oxford University Press.
  • Gray, A., 2018. Vicarious liability: critique and reform. Bloomsbury Publishing.
  • Kyriakakis, J., Popa, T., Rochford, F., Szablewska, N., Zhao, X., Taliadoros, J., O'Donovan, D. and Bautista, L., 2019. Contemporary Australian tort law. Cambridge University Press.
  • Owen, J., 2018. Tearing Up the Patchwork Quilt: An Examination of How, Why and When Liability for Psychiatric Injury in the Tort of Negligence.
  • Pal, M., 2019. Economic Analysis of Tort Law: The Negligence Determination. Taylor & Francis.
  • Plunkett, J., 2018. The Duty of Care in Negligence. Bloomsbury Publishing.
  • Stoyanova, V., 2020. Common law tort of negligence as a tool for deconstructing positive obligations under the European convention on human rights. The International Journal of Human Rights24(5), pp.632-655.
  • Udemezue, S. and Ojeih, C.A., 2021. A Critical Analysis of the Role of Courts in Determining Breach of Duty of Care in the Law of Torts. Available at SSRN 3840080.
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