Home » Blog » my best essay » Tort of negligence; how the law of negligence might be applied COURSE WORK ASSESSMENT

Case: Stella’s claim against the leisure company;
Negligence is the lack of exercising skill and care (omission of the act) towards others that results in avoidable/foreseeable injury; a care of which is expected of a reasonable person. From this definition, three things that need to be satisfied for negligence to amount stand in the clear: there must be a duty which the defendant failed to observe in the degree of care required of him (duty, breach of that duty, and/or standard of care on exercising the duty and penultimately, the failure to observe that standard of care resulted to the harm suffered by the plaintiff.) The test of the reasonable person is an objective one and not subjective.

An objective test means that the court would consider what someone of the callibre of the defendant (doctor or personal trainer) ought to have done in such a circumstance. The courts derive a hypothetical person in the community who exercises skill and judgment in his conduct; for instance, if a guard threw back stones to a bunch of cheeky teenagers who taunted and jeered at me, the action would be considered one not befitting a guard who should have acted differently. (Lexis Nexis) Another example is that of a lifeguard who is expected to dive in in rescue of a drowning/distressed
swimmer, failure to which amounts to negligence and/or any other chargeable offence.

Nevertheless, a by stander or passer by to an incident where a swimmer in distress calls out for help and they ignore it may (rarely) be held negligently liable for the standard norm expects a reasonable person to attempt to save them or call for help from somewhere else exercising all the
reasonable skill and care expected of them. This opinion is based on the good samaritan policy. (Steele, 2007, 110) Accordingly, in Donoghue v Stevenson [1932], the plaintiff while enjoying a refreshment drink she had ordered in a public house noticed a decomposed snail inside the
bottom of the bottle when going for the second refill. She later had stomach problem and after a visit to her physician, she was informed that it was a case of gastroenteritis, a possible cause being the terminated drink. The plaintiff also averred that she suffered emotional stress at sighting the decomposed snail in a drink she had already drank part of. She sued the defendant who was the manufacturer of the drink for failling to package the drink in a manner of reasonable skill and care. The House of Lords in a 3:2 decision held that, a person ought to exercise reasonable care in order to avoid any foreseeable harm to a neighbour. (Holbrook, 2007, 7)

A similarity between the Donoghue case and the case study scenario is that the plaintiffs (Donoghue and Stella) did not spend their money on the instrument that occasioned harm on them. It was donoghue’s friend who had paid for the drink; Tort law allows someone who is not party to a contract to sue for any civil wrong suffered (no room for privity of contract doctrine). Therefore, relying on the Donoghue case law as authority, Stella has a locus standi to sue the leisure centre for negligence notwithstanding that she was using their services for free, the leisure centre still owed a duty of care to avoid any foreseeable injuries.

In Spowart v Nottingham County Council [2006], the plaintiff, a school child, was hurt while playing on the school playground. A jostling at the slide was likely to cause harm and it indeed occassioned the harm on the school girl. The teacher on supervision had warned the children to be careful with the slide and moved on to attend to another student when the plaintiff got injuredd. The court in interpreting section 2 of the Occupier’s Liability Act, 1957 (an occupier has the responsibility of ensuring safety to his visitors except pre-empted in a valid agreement or otherwise), held that the supervision was insufficient thus the school had been negligent a decision that was quickly appealed by the school owners, the Nottingham County Council, that the standard of care imposed by the court was of the highest degree. On appeal, the judge reiterated that the teacher on supervision should have taken more steps in ensuring the children safety rather than just telling them to be careful. The standard of care imposed by the
first instance court was reasonable because the standard of care on children differed from that expected of adults. (Rowley, 2006, 4).

Conclusively, the occupiers in the case scenario, leisure center, owed a duty of care to their visitor, Stella, a duty they failed to observe with reasonable care that led to her injuries thus liable for negligence claims. Furthermore, in the case of Tomlinson v Congleton [2003], a teenager dived into a shallow pool of water and ended up breaking his neck, the doctors pronounced him tetraplegic. His act was considered a careless one
thus the occupiers were not liable. The House of Lords stressed that an occupier became liable for failing to take reasonable care that ensures a visitor’s safety. Lord Hoffmann reiterated that the court’s decision is not influenced by the state and degree of injuries suffered by the plaintiff
rather by the duty of care owed to the palintiff by the defendant and the standard of care exercised by the defendant in avoiding foreseeable risks. (Steele, 2007, 114)

Consequently, in Poppleton v Trustees of Portsmouth Youth Activities Committee [2008],the plaintiff was declared tetraplegic after an injury acquired from participation in a sport that involved an indoor free climbing without the aid of ropes. The court defined a duty of care that is necessary for an occupier to exercise so as to avoid any neglegence claim. In this case, the plaintiff and his companion had brushed aside supervision on the ground that they knew and understood the sport well, however, the court added that the duty to warn which was necessary to avoid negligence had not been dispensed with in the scenario. An occupier is expected to inform the visitor of any ‘hidden’ dangers that loom in participation in the sport. (Lines & Heshka, 2008, 1)

Stella’s claim against skillful & Co.
Skillful & Co. must first and foremost owe Stella a duty of care to present to her a truthful financial facts of the company without any fault or misrepresention be it innocent or not. In the case of Hedley & Byrne Co. v Heller & Partners [1964], the claimants, Hedley were advertising agents who offered their services on credit to a company named Easipower. The claimants therefore sought from Easipower’s banker, Heller on the financial position of Easipower to gauge their credit worthiness. The financial report made the claimants comfortable with the transactions with Easipower although the report had been delivered with the wordings that the bankers would not be responsible for any liability. Unfortunately, Easipower failed to honour their end of the bargain due to insufficiency of funds prompting the claimants to sue the defendants (http://faculty.law.ubc.ca/biukovic/supplements/Hedley.htm) The House of Lords held that a defendant can be held liable for a negligent misrepresentation whether innocent or not that leads to a financial injury to a claimant notwithstanding that there is no contract between the
two parties. The court expounded on this by stating that a professional is expected to exercise due care when expending his services as his advise is relied upon on the grounds of his expertise and profession. Thus the only thing that stood in the way of compensation for the claimants in
this case was the wording on the report that warned that the defendants would not be held liable for any loss.

The court revisited the reasonable man concept and reiterated that a reasonable man who knowingly foresees the impact of his advise on a subject should either refrain from making such a statement, or do it with utmost care or indicate a disclaimer of no responsibility to the statement.( Keenan, 2007) Skillful & Co. being the appointed accountants of leisure company are deemed to understand the impact of their professional service to leisure centre and thus owe a duty of care to anyone who relies upon the financial statement they make of leisure company to transact/buy shares of the company. In regard to this case law as authority, Stella has a course of action against Skillful & Co. Furthermore, the case of Caparo Industries v Dickman, [1990], the court held that wherever a duty of care was evident, the party upon which the duty rests ought not to rely on possibility of risk occurrence but also on good neighbourhood and proximity. The court should also be able to rule that the duty of care expected on the responsible party is a ‘fair, just and reasonable’. (sic) (Norris, 2009, 7)

Remarkably, it is a tradition that accountants are held responsible for the services they offer their clients who usually shares the report/financial statement of the company with those who need to rely on them to make a decision, for instance, banks, suppliers, (prospective) investors. thus the duty of care is extended to these third parties. Reference is to the case of Candler v Crane Christmas & Co. [1951], Denning LJ dissented that professionals became liable for their reports even where there was no contract between them and the claimant since when they made the report, they ought to have relied on the usual ‘ordinary course of business’ . (http://www.swarb.co.uk/lisc/ProNe19301959.php) Contrast is to the case of Hercules
Management Ltd v Ernst & Young [1997], the case involved the case of auditors who misrepresented the financial position of the company. The harm that such a statement could cause was a foreseeable one. The Canadian Supreme Court held that in order to create boundaries in the list of possible claimants, the duty of care was owed to a specific class of people among them being current shareholders of the subject company. The decision of the court also deviated from the previous norm and held that the liability of auditors did not cover personal investment rather the management of the company and accountability. (pmlaw, 2004, 1-5)

James claim against Skilful & Co.
Relying on Candler v Crane Christmas & Co. [1951], James has no course of action against skilful & Co. Denning LJ dissented that an accountant only owed a duty of care to their clients and those people he was certain the client would share the report with excluding strangers. This is in satisfaction of the test of proximity in a negligence claim. A stranger is expected to carry out his or her own independent survey of a company before investing in. In this aspect, James has no course of action against Skilful & Co. as he was a stranger at the time of the release of the information that enticed him to invest with the subject company. Asquith LJ voiced a back up for Denning’s LJ remarks and noted that if all professionals owed a duty of care to strangers, then no one would be willing to pen down their professional thoughts on the area of expertise lest someone (stranger) relying on them suffered a loss and successfully seek compensation.

The Judge reiterated that strangers would fail to exercise the due diligence care respected of them and get compensated at the detriment of the professionals. (swab.co.uk) There must be a limit to the responsibility bestowed upon a party; the injury suffered by the plaintiff must be a direct cause of the defendants action. In definition of the proximity test in the definition of negligence, the injuries sustained by the claimant must be a ‘natural and probable’ consequence of the defendant’s negligent course of action. Thus where a claimant like James relies on Skillful & Co. financial statement of leisure center to enter into contract with leisure, there is no proximity between the injury and the defendant’s negligent action. It is not
foreseeable that a stranger would rely on information provided by the defendant because a prospective investor is expected to carry out an independent inquiry. (Larson 2003 1). The Donoghue case also illustrates proximity; the emotional stress and the gastroenteritis were all a
direct cause of the rotting residue. (Kidner, 2008, 11)

A maxim that also comes to the rescue of Skillful & Co. after establishing that they owed no duty of care towards James; the maxim-the law shall only help the vigilante and not the indolent who slept on their rights without coercion or duress. James was not restricted in pursuing his own investigations on the true worthiness of its shares, a right as well as duty he held but failed to exercise it and now cannot turn to the law for his indolence, ignorance and laziness. (Duhaime.org)

In conclusion, the prospective plaintiff need to ensure that the prospective defendant failed to observe the duty he owed him or her. If the duty was carried out, it was substandard. He or she also need to be sure (have evidence) that the loss suffered is as a direct cause of the defendant’s breach of that duty of care. (Buckley & Okrent 2004 28)

Bibliography

● Lines, Kris & Heshka, Jon. ‘Falling in line with the law’ New Law Journal, Vol. 158,
Issue 7330, July 17, 2008. Retrieved on March 14, 2011 from
http://www.newlawjournal.co.uk/nlj/content/falling-line-law
● Steel Jenny, ‘Tort Law: Text, Cases & Materials.’ Great Clarendon Street: Oxford
University Press, 2007.
● Rowley, Jason. ‘the View’ Vizard Wyeth Solicitors, October 2006. Retrieved on March
14, 2011 from http://www.vizardswyeth.com/ecg…/The_View_-__October_2006.pdf

● Holbrook, Jon. ‘The Sliding Snail’ New law Journal, 157 NLJ 168, February 2, 2007.
Retrieved on March 14, 2011 from http://www.donoghuev.info/?p=7
● Lexis Nexis, ‘NEGLIGENCE’ Retrieved on March 14, 2011 from
http://www.lexisnexis.com/lawschool/study/outlines/html/torts/torts03.htm
● Norris, William. ‘The duty to care to prevent personal injury.’ J.P.I.L journal March 28,

  1. Retrieved on March 14, 2011 from http://www.39essex.co.uk/…/WN_Article_-
    Duty_of_Care-_JPIL_version_revised_28_03_09.pdf
    ● pmlaw. ‘Duty of care: the professional duty of care’. 2004. Retrieved on March 14, 2011
    from http://www.pmlaw.com/pmlaw_pdfs/DutyCare.pdf
    ● swab.co.uk. ‘Professional negligence’ Retrieved on March 14, 2011 from
    http://www.swarb.co.uk/lisc/ProNe19301959.php
    ● ubc. ‘Hedley Byrne v Heller & Partner’ Retrieved on March 14, 2011 from
    http://faculty.law.ubc.ca/biukovic/supplements/Hedley.htm
    ● Keenan, Denis J. ‘Smith & Keenan’s English Law: texts and cases. Longman, 2007.
    ● Larson Aaron, ‘Negligence and Tort Law’ Expert Law, October 2003. Retrieved on
    March 15, 2011 from http://www.expertlaw.com/library/personal_injury/negligence.html
    ● Kidner ‘The basic principles of the duty of care.’ May 19, 2008, Chapter 2. Retrieved on
    March 15, 2011 from http://www.oup.com/uk/orc/bin/9780199232284/kidner_ch02.pdf
    ● Durhame.org. ‘Legal dictionary’ Retrieved on March 15, 2011 from
    http://www.duhaime.org/LegalDictionary/V/VigilantibusEtNonDormientibusJuraSubveniunt.
    aspx
    ● Buckley, William & Okrent, Cathy. ‘Torts and Personal Injury Law.’ New York: Delmar
    Lerning, 2004

Why us

Free features

get started