Duty of care – Tort law

If the defendant has duty of care to the plaintiff and breaches his duty of care, as long as it can be proved that the defendant’s careless conduct causes damage, injury or loss to the plaintiff while the damages are foreseeable, the defendant will be liable to negligence. The following shows why ABC ltd is negligent and therefore liable to Johnny and Kenneth. Negligence is behavior that falls below the standard of reasonable, prudent and competent people. The careless behavior alone of the waiter would not incur liability to ABC ltd.

Only when it leads to the damage by negligence, which is actionable, would incur liability. In Donoghue v Stevenson, friends of Mrs. Donoghue bought her a bottle of ginger beer, which contained a composed snail and caused Mrs. Donoghue to be ill. Since Mrs. Donoghue did not buy the beer, she could not sue under contract law but in tort. The Court held that manufacturer owed duty of care to Mrs. Donoghue and that duty was breached. The rationales behind were that Mrs. Donoghue should have had in their mind as being influenced by their careless behavior.

People owe duty of care to their neighbor, who is anyone whom they can reasonably foresee as being affected by their acts or omissions. The damages were easily foreseeable by the company when the waiter carried the hot water in a careless manner and of course it would definitely affect the customers or everyone in the restaurant. Therefore, ABC ltd owes duty to Johnny and Kenneth. As the duty of care exists, the question is whether the restaurant has breached the duty of care and therefore liable to Johnny and Kenneth.

Lord Reid held in Blyth v Birmingham Waterworks Co that negligence is the omission to do something, which a reasonable man, guided upon those considerations, which ordinarily regulate the conduct of human affairs, would do; or doing something that which a prudent and reasonable man would not do. In Glasgow Corporation v Muir, the court also held that the reasonable man is free from both over-apprehension and over-confidence. The following principles need to be looked into to determine the standard of reasonable man. One of the factors is the likelihood of occurrence of the event causing damages.

Even though injury might be forecasted, the defendant may not be liable. If the chance is exceptionally low, the defendant will not be liable or the vice versa. In this case, the employee was doing something that which a prudent and reasonable man would not do. Whether the restaurant has breached its duty of care, the manner or attitude of the waiter or waitress was needed to be measured when carrying teapot, for example, whether he paid attention to the surrounding environment, whether he carried too many teapots at the same time or whether he rushed or walk very carefully etc.

If the waiter carried the teapot very cautiously or had taken reasonable measurements to avoid the accident, ABC ltd will not be liable. If not, it will be liable. As in Bolton v Stone, a fence of 17 feet was built around the cricket club; a player hit a cricket ball and unfortunately hurt the plaintiff at the neighboring cricket ground. The court held that the probability of people outside the ground getting injury was low, so the defendants were not negligent.

In addition, the gravity of injury was also greater for children than adults because they are vulnerable. In normal circumstances, it was not difficult for the defendant to avoid the risk of damage led to Johnny unless there was someone pushing him and caused him to lose balance. If the defendant causing damages to others were for the purpose of saving of life and limb, then the defendant would not be negligent in taking such a risk as in Watt v Hertfordshire County Council. However, under normal circumstances, their jobs were to serve customers.

Supposing that there has been a breach of the legal duty of care, the damage suffered by Johnny was caused by the defendant’s breach of the duty of care and causation must also be established on the facts and in law. The rule of res ipsa loquitor provides that if an accident usually only happens if someone has been negligent and the state of affairs that produced the accident was under the control of the defendant, it may be presumed that the accident was caused by the negligence of the defendant.

As in Scott v London and St Katherine Docks, the plaintiff was passing the defendant’s warehouse and six bags of sugar fell and hurt the plaintiff. To escape from the liability, the defendant had to prove he is not negligent. In order to escape from the liability, the same thing needed to be done by ABC ltd. In this case, hot water was spilled over Johnny was caused by the negligence of the waiter and it caused Johnny got injury. Causation in fact is established by the “but for” test.

As in Cork v Kirby Maclean Ltd, the court held that if the damage would not have happened but for a particular fault, then that fault is the cause of the damage, if it would have happened just the same, fault or no fault, the fault is not the cause of the damage. But for the restaurant’s negligence, Johnny would not have suffered injury or damage. ABC ltd will not be liable if the injury caused by its breach was too remote. The damage must have been reasonable foreseeable by a reasonable person.

In this case, it was indisputable that the defendant should reasonably have foreseen the accident caused if the waiter or waitress carried hot water in imprudent manner. Thus, with the above three elements established, ABC ltd is liable to Johnny. On the other hand, Kenneth suffered psychiatric illness because of the accident. Nervous shock is a clinically diagnosable and recognized mental injury certified by doctor. It is different from mere depression, grief or anxiety, the some kind of suffering that often occur after passing away of a loved one, or witnessing any shocking event.

There are two kinds of victim, which are primary victim and secondary victim. In this case, Kenneth was the secondary victim as he suffered psychiatric injury in a condition where he was not afraid of his own safety but witnessed a terrible accident caused by the defendant’s negligence. In Hambrook v Strokes Bros, the court ruled in favor of a mother who suffered psychiatric illness with the knowledge that her children got injury. In Mcloughlin v O’Brian, the plaintiff was a mother and she arrived at the hospital just after the car accident in which her husband and her children suffered injury.

She arrived on the scene and find them suffering and one of her children even died. The court held that the defendant caused this negligence and her husband and children got hurt. Similar in Johnny case, Kenneth witnessed the horrible incident occurred on his son and the incident was caused by the waiter’s negligence. In addition, as in Page v Smith, Lord Lloyd said that since the defendant was under a duty of care not to cause the plaintiff foreseeable physical injury, it was unnecessary to ask whether he was under a separate duty of care not to cause foreseeable psychiatric injury.

Therefore, the psychiatric injury suffered by Kenneth was reasonable foreseeable. Another factor, which is policy consideration aims to place limits on the extent of duty of care. The proximity criteria are necessary for the establishment of duty of care such as the relationship between the victim and the plaintiff, the method of apprehension of the accident and the proximity of time and space. Since Kenneth who is Johnny’s father witnessed the accident through his own sense and was at the scene of the accident, Kenneth could sue ABC ltd under the principle of McLoughlin.

Although Elsie is Johnny’s mother, she cannot sue because she heard about the accident through telephone but not her sense of sight or hearing and was not at the scene of the accident. She just appeared in the hospital two days afterwards but not immediate aftermath. In Alcock v Chief Constable of South Torkshire, the court held the witnessing of a disturbing event via electronic media could never give rise to the necessary proximity and also psychiatric illness caused by the worry about the future after the death of a beloved one will not attract any duty.

Regarding to the grandfather’s nightmares and anxiety are not clinically diagnosable and recognized mental injury certified by doctor. In addition, the court only recognized spouses or parents witnessing the traumatic event happened on their lover or children can sue. The relationship of grandfather and grandson was not proximate enough. Also, the grandfather was not at the scene of the accident and only heard the incident from Johnny afterwards. Therefore, the grandfather could not sue. To conclude, ABC ltd is liable to Johnny and Kenneth but not to Elsie and the grandfather. Johnny and Kenneth should be awarded damages.