Torts are legal wrongs suffered by a party. Negligence is one of the most significant modern torts. The conduct of the defendant is a unifying factor thus referred to “negligent.” Blyth v Birmingham Waterworks Co. (1856 ) defined what negligent conduct means; negligence is the failure to do something which a reasonable person would regulate how the human affairs are conducted, under the given set of circumstances. This may include doing something a prudent person would do.
The significance of some torts is in the protected interests of the claimant protect. ASuch interests include nuisance which protects the private use and enjoyment of land. Negligence also protects different interests of the claimant like, economic interests and property. Certain typesof harm create problems because economic loss and psychiatric damages are recovered differently. In Caparo Industries plc V Dickman (1990) Lord Bridge stated that asking whether A or B owes a duty of care does not suffice. However, it is important to ask the extent of the damage by determining the duty of B in preventing A from damage.
A claimant must proof four things to succeed in a tort action:-
For a long time, the courts have recognized many duty relationships like doctor and patient, one highway user and another, manufacture and user and employer and employee. In negligence, there was no generalized duty of care in 1932. The tort existed but was only applicable to certain situations. Such situations included road accidents, dangerous goods and bailments. In Donoghue vs. Stevenson (1932) AC 562 the courts laid down a principle which covered all circumstances where negligence could exist. Donoghue is a seminal case which establishes whether a duty of care exists. Mrs Donoghue visited a café and bought ginger beer in the company of a friend. The beer bottle was made of opaque glass, and when they were pouring the beer, a decomposed snail floated out. Consequently, because of the beer consumption, the plaintiff developed gastroenteritis. The plaintiff brought an action against the ginger beer manufacturer. In this case, The House of Lords had to determine whether there was a duty of care. The courts based their analysis on whether it was a matter of law. The court held then manufacturer ought to ensure that their products are free of foreign bodies. Therefore, a duty of care existed that a duty of care existed and the manufacturer owed the plaintiff a duty of care to ensure that the bottle of ginger did not have the snail (foreign bodies). In the case of Donoghue, it was also established in principle that manufacturers owe the consumers a duty of care.
Lord Atkin, in the case, stated that the rule that one should love their neighbour becomes law and one must not do something injurious to their neighbour. He then questions who is a neighbour? A strict answer is given that "a person must avoid wrongful, foreseeable actions or omissions which can be harmful to the neighbours." So, Lord Atkin poses a question on who a neighbour is. And he answers as; "when actions and omissions are foreseeable to closely affect other people, then those likely to be \affected are the neighbours.." This test was criticized for being wide, but it made it easier for lawyers to show harm and the existence of liability in new cases and scenarios, not initially covered.
The policy has played an important role in shaping duty the care in tort. Firstly, policy in common has a major role in making the judiciary consider the wider public interests and social interests of the public. Secondly, the policy is based on concepts which are value laden, and standard for certain moral values where the society is expected to abide by most of these rules. Thirdly, a policy is not a Pegasus which may soar momentarily between the needs of communities. Thus the judges are not reluctant to mount policies, as they are not unruly. Therefore, policies develop through values and the collective welfare and expectations. Consequently, yesterday's policies will not necessarily be the same ones today. Given this, it is important that public policies reflect relevance in regards to liability. Hence, a policy is a device used to ensure that law is relevant to modern times. Also, courts are not limited to the public policy considerations they need to take into account. Finally, courts are not to exercise their discretions without some guidance when evaluating relevant public considerations. Instead, courts need to act in the company and not alone as stated in Mount Isa Mines Ltd v Pusey by Windeyer J.
An assessment which is systematic requires standards which are defensible. Standards lie in the notions that law should be informed. Law is an instrument of the society, and it's not an end in itself, but a means to an end. In the recent years, laws would fall into disrepute if cases were determined with standards and concepts suited in the 1930's. At the individual tort level, we also seek to distinguish principle and policy, which are concepts applied in tort. Policy involves normative reasoning; includes the rights and obligations of the individuals involved.
Foreseeability means whether the damage in given circumstances would have been foreseen by a hypothetical ‘reasonable person.'
Foreseeability is necessary for duty of care to be recognised, although not sufficient. The test of foreseeability excludes liability to parties who were not able to foresee harm. In Graham Barclay Oysters Pty Ltd v Ryan, Kirby J states that the court is the ultimate decision maker regarding whether a duty of care exists and if it should be recognised.
The duty of care framework on the concept of foreseeability helps in linking the concerned parties with the facts and positioning of the plaintiff in a negligence action in relation to the defendant. In the policy inquiry, we see different points of view, whereby, the substantial factual features are looked onto. The factual features are indicative of pathways to harm between the defendant and the plaintiff. Tort demands that when pathways are identified, it is only logical that a duty of care arises. If such duty of care is not recognised, it implies that the likelihood of harm will increase on protected interests. Therefore, the onus on proofing duty of care, should not be imposed lies on the defendant or the court. To sum up, courts need to apply "the golden rule of negligence", whereby where pathways to harm are created, negligence ought to be recognised.
Because of the above, we see policy considerations are directed to legal relations ought to obtain from the parties. The perspective considers future implications of particular duty of care, on parties in similar situations as those of the present parties. Despite policy- based reasoning being unstable, there is need to make predictive assessments. The duty of care analysis framework is problematic because policy imperatives are not consistent in their demands. Some arguments of policy are against liability and give inconsistent demands to the courts. The issue then becomes one of choosing which the priority policy should be used. Such misplaced priorities neglect the impact of injury on the plaintiff. The court then has to choose between restoring their ability as possible to enable their enjoyment of autonomous existence or to preserve the ability of the defendant to act without being legally hindered. When autonomy is promoted, the policy – imperative can swing in favour of either the defendant or the plaintiff. Therefore, this example shows the importance of the duty of care in influencing policies.
However, this does not imply that court's reasoning should not be considered, rather, the impact of negligence on parties by considering the duty of care is what shapes negligence and what ought to be compensated. Negligence concerns itself with conduct, and when legal obligation and duty of care arises, will depend on a given set of circumstances.
It is conceded that law is policy's instrument. Therefore, the law of negligence serves purposes which are social. What the tort of negligence that policy serves is clear. Negligence rules encourage people to adhere to proper standards of conduct. This role of policy is cogent in some circumstances as opposed to others. An excellent example is where professional services are offered, planning of activities is crucial. When damage is caused the injured party ought to be compensated as the internal logic of negligence dictates.
This article continues to show the how courts continue to reason in reference to policy in many tort cases and in negligence particularly. From the review above, policy reasoning is inevitable. Different cases, however, show a change in emphasis from time to time. The High court has indicated that it does not want to create wide social policy, as seen in the case of Sullivan. Other difficult cases have led courts to stray from the strict preference and sometimes the reasoning was based on social policies which can be contested. Ultimately, we see duty of care considerations determining the outcomes of many cases.
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