Torte Law

Tort law appears to discriminate between different types of defendant’s such as public entities, rescuers, children, manufacturers, etc. when establishing a duty of care and to whom. This is because the law of torts is a specialized area of the law that seeks to account for damages in a civil setting that may occur because of a breach of that duty. Further, much of tort law has been developed randomly, many times to fill in gaps that exist in the law, and at other times, it is influenced by public policy.

Therefore, depending upon various factors, the duty of care can be high or non-existent depending upon the type of claimant and what type of duty of care a defendant breached. When a duty of care is involved, and that duty is breached, this usually results in negligence. Tort liability in negligence is when a party has a duty of due care with regard to others, breaches the duty and as a result foreseeable harm occurs and is proximately caused by the breach. Damages and/or injury must also exist for negligence to have occurred . The foreseeability of harm alone, however, does not establish a duty of care or a duty to act as held in Perl v.

Camden LBC (1983) . The first defining case for duty of care was Donaghue v. Stephenson (1932) , in which the Lord Atkin held that one owes due consideration to a neighbour, thereby holding that reasonable care and attention is due to those who are closely affected by one’s actions. Decades later in Home Office v. Dorset Yacht Co. (1970) , Lord Reid stated that Lord Atkin’s statement in Donoghue v. Stevenson should not be considered a statutory rule, yet agreed this rule should be applied unless some explanation or justification warrants its exclusion.

Just eight years later, Lord Wilberforce in Anns v. Merton London Borough Council (1978) further defined the concept of duty of care by stating: … the question has to be asked in two stages…. as between the alleged wrongdoer and the person who has suffered damage, is there a sufficient relationship of proximity or neighbourhood such that, in reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter – in which case a prima facie duty of care arises.

Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty or the class of person to whom it is owed or the damages to which a breach of it may give rise Therefore, Lord Wilberforce determined that some sort of proximity of relationship must be present for a duty of care to arise. Nevertheless, in the case of Smith v.

Littlewoods (1987) the judiciary held that a defendant may have a duty of care to a claimant by being liable for a third party’s actions under special circumstances as articulated by Lord Goff. He indicated that such a duty existed if there existed a special relationship between the parties; if there was a special relationship between the defendant and the third party; if the defendant created the danger; and/or if the defendant knew or should have known a third party was creating a danger.

Several more court decisions and tests emerged over the years regarding a duty of care in tort law, however, the most salient is the rule defined in Caparo Industries v. Dickman (1990) in which the “Neighbour Principle” was established. In this case, the judiciary created a three-pronged test to determine if a duty exists, asking: 1. Was the damage to the claimant reasonably foreseeable? 2. Was the relationship between the defendant and the claimant sufficiently proximate? 3. Is a duty of care reasonable and just to impose?

This rule appears to be the most relevant and applicable to nearly all circumstances of negligence, however, whether a duty of care exists also depends on the type of defendant accused of breaching an established duty of care. Obviously, there exists a special duty of care owed by a parent or guardian to a child . A parent or guardian is legally bound to care for the child in their charge, therefore, if such a duty is breached the parent or guardian may not only be civilly liable, but criminally liable as well.

When an individual accepts employment and enters a place of employment, an employer has a duty of care to that employee. This duty of care includes the need to provide a safe workplace with safe equipment or machinery; competent management and supervision and/or suitable training for employees; and to take care when employing fellow employees. This duty of care has been implemented according to statute under the Health and Safety at Work laws, Section 2(2) and has further been bolstered by the Management of Health and Safety at Work Regulations 1992 .

One who is considered a rescuer has no duty to engage in a rescue as indicated in the case of Baker v. Hopkins (1959) . However, if a victim is reasonably perceived to be in danger, Cutler v. United Dairies (1933) held that a rescuer has a duty of care to the victim. Nevertheless, the rescuer must not act with total disregard for his or her own safety and has no duty to do so. If the rescuer’s conduct prevents others from helping the victim or attempting a rescue, he or she may be held liable for breaching a duty of care as was held in Zelenko v.

Gimbel (1935) . Additionally, if the rescuer exacerbates the dire condition of the victim, the rescuer has created an omission and then becomes a liable defendant. Alternatively, if the rescuer suffers any type of psychiatric or psychological trauma due to the circumstances surrounding an incident, he or she may be able to recover damages in limited instances, as in the case of White v. Chief Constable of South Yorkshire Police (1998) . The business sector also has a duty of care to consumers and is held liable under the tort law of product liability .

This takes affect when a product is defective and the product itself has no warning displayed on it. This is especially relevant when the product cannot be rendered completely safe. The European Union implemented a statutory strict consumer protection law that holds manufacturers responsible for creating defective products that cause harm, thereby creating a strictly liable duty of care to consumers. The rationale for this type of duty is that a manufacturer should not release a product on the market without ensuring its safety and should guard against any defects that could possibly occur.

The Occupier’s Liability Act also creates a minimum duty of care for public safety by a shopkeeper who invites individuals onto his property or even trespassers that may enter the premises. In Cooke v. Midland Great Western Railway of Ireland (1909) , Lord MacNaughton held that curious children hurt during trespassing while looking for berries should be compensated for their “unfortunate curiosity”. Those in the public sector who offer professional services have a higher duty of care to the public than the average person . This was established in the case of E(A Minor) v. Dorset CC, sub nom X (Minors) v.

Bedfordshire CC (1995) , which held that such professionals, including doctors, psychologists, and the like hold themselves out as having special skills, therefore, they are bound to possess the skills they tout and to exercise them with care. When such a professional has a duty of care to act responsibly and/or reasonably and breaches that duty, an omission occurs. This is distinguished in two ways: through misfeasance by inflicting harm through a positive action; or nonfeasance by permitting harm to occur by failing to act. For the latter, liability usually does not exist.

Public authorities, such as police, emergency services, social services, fire departments, etc. have had a limited duty of care to the public with inherent protections built in to protect such agencies . For instance, if an individual is injured and an ambulance is called, but does not show up in a timely manner, this emergency services agency may be held liable as a defendant. However, under the law, the emergency services have no common law duty to act upon an emergency situation when called. Further, after arrival, the agency is only liable for the damage that may arise as a result of any positive action they have taken.

This is because many such agencies within the realm of public authority are often given power as well as duties of care and if a suit is brought, it may be encroaching on public law. Because of the limited duty of care placed upon public authorities, the Human Rights Act of 1998 became effective October 2000, and has incorporated the European Convention on Human Rights into the laws of the United Kingdom . Sections six through eight provide that public authorities’ actions must be compatible with the European Convention on Human Rights.

Osman v. United Kingdom (1999) interpreted the Human Rights Act of 1998 as imposing a positive duty to act, rather than allowing their powers of discretion to be a reason for apathy. Such public authorities include the police, social services, the firehouse, etc. The courts took this stance because such public authorities have a duty to the citizenry. Although over the years the courts have contributed to the evolution of the establishment of the duty of care, the duties that do exist are predominantly logical and reasonable.

It has been established that doctors and mental health professionals have an extremely high duty of care to their patients, because of their unique level of skill and expertise. Therefore, in a case of negligence, a defendant of this caliber is scrutinized much more harshly than most other such defendants. However, there may be another established duty of care that even has a higher expectation when it comes to responsibility. A parent or guardian taking care of a child has a duty to take care to ensure the safety, health, and welfare of that child solely due to the relationship.

This not only includes family caretakers, but also the caregivers in daycare centers and the staff at schools, who are in charge of making sure each child is safe. Therefore, if a parent or guardian breaches this duty of care, this type of defendant is usually given no mercy due to the nature of the negligence. Further, a rescuer may as a defendant may be treated much more harshly by the court system if he or she is a lifeguard or someone who may have had a high duty of care as a rescuer, but breached their duty and injury occurred to a plaintiff due to their omission.

Other logical duties exist, such as an employer to employee and a manufacturer’s duty of care to consumers; however, other duties of care are a bit less reasonable and understandable. This would include the rule established in Smith v. Littlewoods (1987) in which it was held that a defendant could vicariously have a duty of care a victim who is affected by the actions of a third party. Establishing such a duty for a defendant in this situation may be much harder to do, than when clear proximity, cause, and a definite relationship exist between parties. Therefore, a legal tort case may not be successful against this type of defendant.

Nevertheless, the fact that public authorities have a questionable duty of care to the citizens they serve is quite disturbing. The fact that there are certain exceptions to their liability as a defendant makes it difficult for a claimant to bring a solid action against one of these public entities that may have caused them damage and/or harm due to an omission or pure apathy. One can only hope that as the Human Rights Act of 1998 becomes a driving force in the citizenry of the United Kingdom, public authorities’ exceptions to established duties of care will become lessened and disappear.

Further, the incorporation of the European Convention on Human Rights into the laws of the United Kingdom should also assist in creating a viable defendant of a public authority when they breach their duty to the public. Overall, the laws of tort are necessary in the legal system as tort law seeks to establish duties of care to protect those who depend on others for care, public and professional assistance, medical and psychological advice, emergency services, etc.

Although each defendant may be treated differently depending on the duty of care established for them for the reasons discussed, this is a rational, reasonable method to remedy wrongs that have caused damage to claimants who have experienced damage and seek reparations. References Barak, Aharon (1964). Trespassers Will Be Protected. The Modern Law Review, 27(1), 88-97. Brannen, Julia, and O’Brien, Margaret (1996). Children in Families: Research and Policy. Oxon, England: RoutledgeFalmer. Cartwright, Peter (1999). Consumer Protection and the Criminal Law: Law, Theory, and Policy in the UK.

Cambridge, England: Cambridge University Press. Cases. (2001). Journal of Social Welfare and Family Law, 23(3), 329-339. Forman, F. N. (2002). Constitutional Change in the United Kingdom. London: Routledge. Hart, H. L. A. , and Honore, Tony (1959). Causation in the Law. Oxford: Clarendon Press. Hervey, Tom (1981). Winner Takes All. The Modern Law Review, 44(5), 575-580. Markesinis, B. S. , and Deakin, S. F. (1999). Tort Law. Oxford: Clarendon Press. Romohr, Phillip W. (2006). A Right/duty Perspective on the Legal and Philosophical Foundations of the No-Duty-to-Rescue Rule.

Duke Law Journal, 55(5), 1025-1041. Shipway, Lyn (2004). Domestic Violence: A Handbook for Health Professionals. New York: Routledge. Teff, Harvey (1998). The Standard of Care in Medical Negligence—Moving on from Bolam? Oxford Journal of Legal Studies, 18(3), 473-484. Von Bar, Christian (1998). The Common European Law of Torts: The Core Areas of Tort Law, Its Approximation in Europe, and Its Accommodation in the Legal System Vol. 1. Oxford: Clarendon Press. Wilkinson, Carol (2001). Fundamentals of Health at Work: The Social Dimensions. London: Taylor & Francis.