Tort Law Case

Tort law is mostly formed over previous past case precedents. However it is quite a modernistic approach to law simply because of personal injury, medical claims and road traffic accidents. As a subject it is formed on the concept of Negligence. Negligence is seen as a civil law area, defined as ‘the breach of a legal duty to take care by an inadvertent act or omission that injured another[1]. Due to the injuries Jenny sustained, she could possibly claim compensation through negligence.

It could be argued that in fact both Northwood County Council and the NHS trust could be liable in failing to prevent the negligence that occurred, in this instance the attack from Sophie’s dad. To enable a person to be liable for negligence, they must; owe the defendant a duty of care, they must have breached that duty, and lastly the damaged cause by that person must not be too remote. Firstly in the case of Donoghue v Stevenson[2], Lord Atkin established that you owe a duty of care towards your neighbours.

However it was questioned, who was deemed as a ‘neighbour’? Lord Atkin replied; “the answer seems to be persons who are so closely and directly affected by my act that I ought to reasonably have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. ” In affect if the principle was Donoghue v Stevenson was to be taken alone then yes both Northwood County Council and the NHS trust would be liable, because Sophie is both of their neighbours and as she is an employee they owe her a duty of care.

Although the case of Donoghue v Stevenson alone is merely not enough, the principle towards duty of care was furthered in the care of Caparo Industries Plc v Dickman[3]. It was stated that in order for there to be a duty owed there must have been; foresight, proximity, and imposing it must be fair just and reasonable. If following the principle set out in Caparo Industries Plc v Dickman in that would a reasonable person have foreseen the actions carried out by the defendant, then the answer is yes of course they would.

If someone had stated that they was going to kill someone, mentally stable or not, their statement would be taken further, any reasonable person ought to have foreseen that damages that occurred to the claimant. In the case of Nettleship v Weston[4] it was established that when driving a motor car it is foreseeable that a passenger as well as other road users will directly affected if the driver is careless.

This is similar to the fact, in that if Sophie’s father threatened to kill Jenny, it would be reasonably foreseeable that an action could be carried out by the defendant and therefore it should be prevented by those that owe Jenny a duty of care. In the case of Sutherland Shire Council v Heyman[5] stated that proximity exists between employers and employees. The final test is whether it is fair, just and reasonable to impose that duty. In the case of Smith V Chief Constable of Sussex[6] it was found that it was not fair just and reasonable to impose a duty on the police to protect individuals from harm.

A duty of care for the actions of a third party may arise if the claimant and defendant have a relationship of proximity from a contract between the parties Stansbie v Troman[7] or by things said and done by the parties such as in Swinney v Chief Constable of Northumbria Police[8]. You may also owe a duty to a third party if you have created a risk of danger, such as in Haynes v Harwood[9]. In the case of Stansbie v Troman[10] it was established that if the claimant and defendant have a relationship of proximity from a contract between the parties then a duty of care for the actions of a third party may arise.

a duty to a third party may also be owed if there is a creation of a risk of danger, such as in Haynes v Harwood[11]. Further more a duty of care may be owed if assumed responsibility is given, as in Costello V Chief Constable of Northumbria Police[12] which found that a police inspector has an assumed responsibility to help fellow officers. It may be seen likely that the courts will find that Northwood CC owed Jenny a duty of care for Sophie’s dad’s actions because they have a relationship through a contract of employment, and they also in control over Jenny as she is their employee, therefore this duty is reinforced.

Jenny’s case is very similar to that of Selwood v Durham CC[13], therefore the precedent set in this case should be followed, thus finding that Northwood County Council owed a duty of care to Jenny in regards to the actions of Sophie’s dad. Although defence may try to distinguish this case from Selwood through the fact that in that case the third party had a history of violence, however the courts should most likely to find that both Northwood CC and the NHS Trusts owed a duty of care towards Jenny. When looking at whether the duty had been breached it must be found that defendants have in order for them to be liable.

The courts have said that you should look at the standard of care objectively by looking at what a ‘prudent and reasonable man would do’ Alderson in Blyth v Birmingham Waterworks[14], and then asses the conduct of the defendant against this set standard of care. The courts will take into account the practicality of the defendants required actions. For example in Al-Kandari v JR Brown & Co[15] the courts found the solicitor in breach of his duty as minimal time would have been needed to warn the claimant.

The courts will be more likely to find you in breach if the damage was foreseeable Bolton v Stone[16], and if the damage is likely to be of a serious nature, as in Paris v Stepney Borough Council[17]. In this case it must be decided whether a ‘reasonable person’ would have informed Jenny on Sophie’s fathers plan to kill her, because of the fact that it would have been done quickly and simply cost nothing to warn her then it should have been done. Due to this reasoning it is possible in that the courts would find the defendants in breach of their duty.