6 Pages
1613 Words
1. Introduction - The law of negligence treats acts and omissions differently
The law of negligence differently treats acts and omissions mainly due to the underlying principles of foreseeability, duty, and causation. Acts may involve some positive actions that can directly cause harm, while omissions refer to a failure to act when there is a duty to do so. This differentiation is related to the idea that individuals generally must refrain from causing any harm to others through their actions but may also have a duty to impose interventions to prevent harm when they have a legal obligation or special relationship.
The justifiability of these differences lies in foreseeability and control. Acts are often more direct and within the control of an individual, making it easier to establish a general link between the action and the harmful outcome. On the other hand, omissions may involve more complex considerations, such as whether the foreseeability of harm, a duty to act existed, and the practicality of intervention. Imposition of a legal duty to act in all circumstances could lead to an undue burden on potentially stifling personal autonomy and individuals.
However, critics argue that the differences between acts and omissions can be arbitrary and might not always show the moral defendant's culpability. Sometimes, the failure to act can be equally blameworthy to a harmful action. Therefore, while the law's differentiation between omissions and acts is generally justifiable, it is important to continually refine and evaluate these distinctions to ensure a coherent and fair legal framework.
2. Use of the Caparo test
“Robinson v. Chief Constable of West Yorkshire Police [2018] UKSC 4” and “Darnley v. Croydon Health Services NHS Trust [2018] UKSC 50” cases have immense significance in the context of negligence law in the United Kingdom, providing insights into the application of the Caparo test.
The Caparo test, established in “Caparo Industries plc v. Dickman [1990] UKHL 2”, outlines three elements for setting up a duty of care: proximity between the parties, foreseeability of harm, and that it is fair, just, and reasonable to impose a duty. Robinson emphasizes the significance of foreseeability and proximity. The Supreme Court held that the police owed a duty of care to the victim in certain situations, emphasizing the harm's foreseeability to the specific individual.
On the other hand, Darnley underscores the context-specific nature and flexibility of the Caparo test. The case involved a non-medical staff member who provided incorrect information related to waiting times in an emergency department. The Supreme Court found the existence of a duty of care, emphasizing the harm's foreseeability that the misleading information could cause.
Together, Robinson and Darnley highlight that the Caparo test application requires a case-specific and nuanced analysis. A central consideration remains foreseeability, but the cases emphasize that proximity and the broader context play crucial roles in ensuring whether a duty of care exists. These decisions reinforce the idea that the Caparo test is a tool that keeps balance among various factors and adapts to the specific circumstances of each case.
3. Advice to the parties
The complex scenario involving Debbie, Eric, and the events leading to Eric's death raises several potential rights and liabilities in tort. That study will analyze the situation step by step, considering the actions of each party involved.
Debbie:
Threats and Domestic Violence:
The threat of Debbie killing Eric could potentially give rise to criminal charges such as assault. In a civil context, Eric may also have grounds to claim for intentional infliction of emotional distress or seek a restraining order. In “R v Ireland [1997] 3 WLR 5304”, the silent phone calls causing severe psychological harm related assault, expanding the explanation to include non-physical harm inducing fear of immediate harm.
Debbie's previous caution for domestic violence can be introduced as evidence in the divorce and custody proceedings, affecting her potential and credibility and influencing the court's decision on custody.
Arson:
Debbie's act of destroying the marital home is a serious criminal offense and may lead to criminal liability. In tort law, this action could result in a claim for damages from Freda, Eric, and George for intentional infliction of harm, damage to property, and emotional distress.
The fact that Freda, Eric, and George suffered serious burns and smoke inhalation as a direct outcome of Debbie's actions strengthens their case for damages. In “Donoghue v Stevenson [1932] AC 562”, the House of Lords developed the "neighbour principle," explaining a manufacturer's duty of care towards customers, pivotal in modern negligence law.
Eric, Freda, and George:
Negligence by the Fire Service:
Mike, the fire officer, and the fire crew could face liability for negligence potentially. Their incapability to allow the neighbors to delay in extinguishing the fire and use a makeshift rescue device leading to serious harm might form the basis for a negligence claim. In “Bolton v Stone [1951] AC 850”, the House of Lords ruled on the standard of reasonable foreseeability in negligence cases, evluating that an unlikely incident might not establish liability if it's not reasonably foreseeable.
However, their actions will be assessed based on the standard of care expected from fire services in similar conditions. If they followed standard procedures and the faulty equipment was unforeseeable, their liability may be limited.
Delayed Ambulance Response:
The delayed response of the ambulance, caused by Owen's unfamiliarity with local roads, could expose Owen and the ambulance service to be liable for negligence. The extended wait time might be reviewed as a breach of the duty of care owed to Eric, leading to his death.
Eric's death could prompt a claim for negligence or wrongful death brought by Freda and George as dependents, seeking compensation for the loss of their father. In “Kent v Griffiths [2000] 2 WLR 1153”, the duty of care owed by emergency services was addressed by the court, emphasizing the importance of reasonable actions and prompt response in emergency situations, establishing liability for delays causing harm.
Owen and Paula (Paramedics):
Negligence:
Owen's unfamiliarity with the subsequent delay for local roads in reaching the scene may constitute negligence. If this delay contributed to Eric's death, the ambulance service and Owen could be held liable for negligence.
The delay of 45 minutes in medical assistance may also result in a negligence claim, particularly if it worsened the extent of injuries suffered by Eric, Freda, and George.
Potential Defenses:
Contributory Negligence:
The decision of Eric to confront Debbie at the family home, despite the acrimonious divorce and prior threats, might be seen as contributory negligence. This could impact any damages awarded to Eric or his dependents.
It may be argued by the fire service that the faulty equipment was unforeseeable, and they acted reasonably given the circumstances.
Assumption of Risk:
If Freda, Eric, or George knowingly placed themselves in a dangerous position, the defendants might argue they assumed the risk, limiting the parties' liability responsible for their injuries.
References
- Agarwal, P., 2021. Caparo test. Indian JL & Legal Rsch., 2, p.1.
- Anderson, T., Torreggiani, W.C., Munk, P.L. and Mallinson, P.I., 2020. The impact of the introduction of artificial intelligence in radiology and its potential legal implications in the UK and Ireland. BJR| Open, 2, p.20200030.
- Cornford, T., 2019. The negligence liability of public authorities for omissions. The Cambridge Law Journal, 78(3), pp.545-569.
- Green, S. and Gardner, J., 2021. Tort Law. UK: Bloomsbury Publishing.
- Gruši?, U., 2021. Tort Law and State Accountability for Overseas Violations of International Human Rights Law and International Humanitarian Law: The UK Perspective. Utrecht Journal of International and European Law, 36(2).
- Lawprof. (2019). Bolton v Stone [1951] AC 850. Available at: https://lawprof.co/tort/negligence-cases/bolton-v-stone-1951-ac-850/ [Accessed on 18th November 2023]
- Murphy, J., 2019. The Heterogeneity of Tort Law. Oxford Journal of Legal Studies, 39(3), pp.455-482.
- Parliament. (2023). Judgments - Regina v. Burstow Regina v. Ireland. Available at: https://publications.parliament.uk/pa/ld199798/ldjudgmt/jd970724/irland01.htm [Accessed on 18th November 2023]
- Professional negligence claims solicitors. (2018). Donoghue v Stevenson [1932]: Case Analysis. Available at: https://professionalnegligenceclaimsolicitors.co.uk/duty-of-care-key-tort-law-judgment-donoghue/ [Accessed on 18th November 2023]
- Professionalnegligenceclaimsolicitors. (2019). Caparo Industries Plc v Dickman: Case Summary. Available at: https://professionalnegligenceclaimsolicitors.co.uk/breach-of-duty-key-tort-law-judgment-caparo-dickman/ [Accessed on 12th November 2023]
- 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 Rights, 24(5), pp.632-655.
- Supremecourt. (2018). Darnley (Appellant) v Croydon Health Services NHS Trust (Respondent). (2018). Available at: https://www.supremecourt.uk/cases/uksc-2017-0070.html [Accessed on 12th November 2023]
- Supremecourt. (2018). Robinson (Appellant) v Chief Constable of West Yorkshire Police (Respondent). Available at: https://www.supremecourt.uk/cases/uksc-2016-0082.html [Accessed on 12th November 2023]
- Vlex. (2020). Kent v Griffiths (No.2). Available at: https://vlex.co.uk/vid/kent-v-griffiths-no-79305 mnbvx1 [Accessed on 18th November 2023]
