Advising On Torts Case Analysis

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Table of Contents

Abstract
Introduction
Duty of Care
Inevitable Accident
Standard of Care
Contributory Negligence
Vicarious liability
References

Abstract

This paper is in a position to discuss tort, which is defined as a civil wrong that is independent of a contract that is either contrary to law or an omission of a specific legal duty, or a violation of an absolute right. This will be done on the basis of the following case.

Amy, a newly qualified oil-tanker driver with Express Way, arrived late for work on her second day. The roads are icy, but Amy is anxious to make all her deliveries on time and drives above the speed limit (something her contract of employment expressly forbids her to do). As she approaches a set of traffic lights that are turning red, she is traveling so fast that she is unable to stop the tanker. Amy swerves and crashes into a car being driven carefully by Bob. Bob, who is not wearing a seatbelt, is thrown through the windscreen and suffers a serious injury. The tanker crashes into the playground of a local school and bursts into flames. Luckily, the school was closed, and no children were injured; Amy was able to escape unhurt. Chitra, who was out walking her dog at the time, just escaped injury by jumping out of the way as the tanker mounted the pavement. As a result, Chitra has developed claustrophobia and refuses to leave her house. Dalia, who is four months pregnant and lives opposite the school, was watching the scene from her bedroom window and suffered a miscarriage as she was traumatized by the events. Bob’s wife, Elsie, is informed of the accident and rushes to the hospital. She arrives two hours after the accident and sees Bob briefly in the accident and emergency department before he is taken to the theatre. Elsie is now suffering from post-traumatic stress disorder.

Introduction

According to the law of the land, an act that causes harm to a determinate person, whether intentionally or not, then this act is referred to as a tort; basically, it is a civil wrong that does not depend on contracts, and its remedy is normally unliquidated damages which are usually imposed by the court; therefore it comes the existence of a law of tort. Under this law of tort, we see that duties are imposed by law, such as we should not be negligent of others; therefore, this duty is owed to the community as a whole. Therefore, in this type of law, there must be an infringement on the civil right of an individual, through which the wrongdoer has to compensate the injured party in the community, this injured party is therefore supposed to obtain his compensation by taking action through which his legal rights are violated (Neuner and Carl, 1992).

In this case of Amy, who is a newly qualified tanker, we find that there existed a number of torts through which there existed an act of negligence which, according to the law, is defined as a breach of a duty caused by 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 which a prudent and reasonable man would not do. Therefore negligence embraces a number of elements that enables an individual to maintain an action for negligence; thus, the plaintiff must prove that the defendant owed him a duty of care, that there has been a breach of that legal duty, and that the plaintiff has suffered an injury to his person or property. (Keenan, 2007).

It follows that the actionable negligence consists in the neglect of the ordinary use of ordinary care and skill towards a person to whom the defendant owes such legal duty of care. This duty may arise from a legal relationship based on contracts. Therefore in mention case of Amy, we find that the following was adhered to;

Duty of Care

Under this law, it is said that if a man is near to another or near to a property of another, then there is a duty that lies on him not to do anything that may cause a personal injury to the other person or his properties. Therefore one should take reasonable care to avoid acts that he can reasonably foresee would injure the other person. In this case, we find that Amy being a qualified driver she was under an obligation to drive safely, putting in mind the welfare of other road users, but as a result of her anxiety of making early deliveries, she drove the tanker very fast that she could not be able to stop as the traffic lights turned red whereby she caused an accident and injured Bob who is reported to have been seriously injured as he was thrown out of the car through the windscreen. According to the law this accident could not have occurred only if Amy could taken reasonable care to avoid acts that she could reasonably have foreseen that could injure the other road users who were so closely and directly affected by her act of negligence. This case is also well described in the case of; Donoghue v Stevenson, 1923. Whereby, a man bought a bottle of ginger beer from a retail shop for his girlfriend. The manufacturer had bottled the substance in an opaque bottle so that its contents could not be seen. When the girl poured the contents in the glass, it contained the decomposed remains of a snail. The girl was ill in consequence and sued the manufacturer for damage in tort. It was held the defendant was liable as he owed her duty of care to ensure that the bottle should contain objectionable matter as it did (Keenan, 2007)

As a result of this, Bob is advised to sue Amy on the basis of Res Ipsa Loquitur, and this is where an individual or the defendant succeeds in proving that he has not been negligent or offers a reasonable explanation of how the accident could have happened without his negligence. This rule provides three conditions that should be adhered to, the first one is that there must be reasonable evidence of negligence on the part of the defendant, secondly that the operation was under the control of the defendant when the accident took place, and lastly that the accident is such as in the ordinary course of things does not happen if those who have the duty properly use it. In this case, we see that the traffic department carried an action of informing the drivers using the particular road to stop by setting the traffic lights to turn red whereby, due to her high speed, she was unable to stop, and she caused the accident, therefore, this shows that Bob was not negligent on the fact that he stopped following the traffic rules and in the process, he was hit by Amy’s truck. This can be used to show that Amy was negligent and that she is liable for her torts (Emanuel, 2004).

Inevitable Accident

In this case, we see that Chitra, who was out walking her dog at the time, just escaped injury by jumping out of the way as the tanker mounted the pavement. As a result, Chitra has developed claustrophobia and refuses to leave her house; in-law, we see that an inevitable accident is one that can not be prevented by the exercise of ordinary care, caution, or skill. In this case, we see that the mounting of the tanker on the pavement could not be prevented since Amy could not prevent the truck to from mounting the pavement; also she was not able to prevent the distress of and the suffering of Chitra since Amy was not aware that Chitra was on the pavement. This case is also presented in the case of Stanley v Powell, 1891, where P, who was a member of a shooting party, fired at a pheasant. A pallet hit a tree and rebounded into the eye of the plaintiff, who was engaged in carrying cartridges and game for the party. It was held that P was not liable as the incident was purely an inevitable accident incapable of being prevented by ordinary care, skill or diligence. Therefore in the case of Amy, she is not liable for Chitra s’ distress and claustrophobia since the incident was an inevitable accident (Murphy, 2007).

Standard of Care

The standard of care by which to determine whether a person has been negligent or not is the standard of care expected from an ordinarily prudent man in the particular situation a prudent man is one who has acquired the skill to do the act which he undertakes. The degree of care, skill, or diligence which a man is required to apply varies according to the particular case. Thus when a person has undertaken a duty that requires extraordinary care or skill, he is bound to use great care in order to avoid the foreseeable harm to a person or to his property. On the other hand, if the danger is slight. Only a slight amount of care is expected.

In this case of Amy who is regarded as a skilled driver, she is therefore expected to carry out her duties professionally which she never did thus she is liable for her torts (Neuner and Carl, 1992).

Contributory Negligence

The law takes into consideration any act or conduct of the party injured which may have contributed to the injuries he or she received could not maintain an action against another in respect of such injury. In this case of Amy we find that Dalia, who is reported to be four months pregnant and lives opposite the school, was watching the scene from her bedroom window and suffered a miscarriage as she was traumatized by the events, may also be blamed for the injury she caused to herself by watching the accident, that is she could not have suffered the injury if she avoided watching the event, in this case, we find that Express Way may use various defenses available in the law of tort to defend themselves, therefore Express Way is advised to use either of the following:

Volenti Non-Fit Injuria– this defense means that a person cannot claim for the damages that result from a risk that run voluntarily in this case it is provided that when a person engages himself in an event that he knows the dangers and risks involved in it but he undertakes the action like in this case it is obvious that Dalia knew that watching the accident will definitely lead to her being traumatized and lead to her miscarriage, so she has no right to claim action against the Express Way. The Express Way can defend itself by proving that, Dalia knew the dangers involved, appreciated it in all respects, and assumed it willingly. This is also well explained in the case of Smith v Baker, 1891.

In this case, S was employed by the defendant to drill holes in some rocks S knew that a crane swung heavy stones over him. One of the stones fell and injured him. It was held that although he knew of the danger, this was not of itself conclusive evidence that he had consented to run the risk of injury, and therefore the defense of Volenti non-fit Injuria did not apply (Emanuel, 2004).

Vicarious liability

In this, the Expressway is therefore advised to consider that the torts that Amy practiced can lead them to be held liable on the basis of vicarious liability which according to the contemporary law is the liability of one person for the torts committed by another person. The wrongdoer is of course liable to the injured person but another person may be jointly liable with him to compensate the injured party. Therefore where the injured party chooses to sue one of the tortfeasors, he is subsequently prevented from suing the other even if his claim for damages is not satisfied. So it is advisable for the injured party to sue the tortfeasors jointly. Thus where there is a relationship of master and servant, the former is always liable for the torts committed by the latter in the course and scope of his duties. The master or the employer can claim compensation from the negligent employee (Neuner and Carl, 1992).

In case Express Way is therefore advised to note that a master is liable for every wrongful act of the servant if committed in the course of employment even without any express approval by him. It is immaterial that the alleged act was not done for the benefit of the master. But the master is not liable for the torts committed beyond the scope of employment unless he has expressly authorized such acts or subsequently ratifies them; Express Way should know that it may not be held liable for the torts committed by Amy as an employee in the company.

This case is well explained in the case of Limpus v London General Omnibus Co, 1862.

A bus driver of the defendant company caused an accident by drawing his bus across the road, obstructing a bus of a rival company from collecting passengers. The bus driver had been given strict instructions against obstructing other buses. It was held that the defendants were liable, and it was immaterial that the driver’s wrongful act was prohibited by his employer (Murphy, 2007).

The Express Way is therefore advised to know that in tort, the duties are always imposed by law, i.e., we must not always be negligent of others, privity is not needed in tort to maintain an action in tort; in tort, the duty is owed to the community at large. They should also know that the act or omission may or may not cause actual damage to the plaintiff.

References

Emanuel, S (2004): Fundamental of Business Law, 4th Edition, New York, Educational Publisher
Gifford K (1980): Legal Profession Law & Practice in Victoria Law Book Co, Sydney
Hudson A. (2003), Equity & Trusts, third edition, Cavendish London
Jertz A. and Miller L. R, (2004): Fundamentals of Business Law, 3^rd Edition, New York, Macmillan Publisher
Keenan (2007), Smith and Keenan’s English Law, 15th Edition, Longman
Murphy, J. Street (2007) on Torts 12th Edition Oxford University Press Oxford; New York
Neuner, R & Carl O. (1992) Unpatentable Subject Matter, Law Journal. New York.
Penrose R (2005): Road to Reality: A Complete Guide to the Laws of the Universe, New York, Longman Publisher

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