TORT

NEGLIGENCE Negligence (Lat. negligentia) is a failure to exercise the appropriate and or ethical ruled care expected to be exercised amongst specified circumstances. The area of tort law known as negligence involves harm caused by failing to act as a form of carelessness possibly with extenuating circumstances. The core concept of negligence is that people should exercise reasonable care in their actions, by taking account of the potential harm that they might foreseeably cause to other people or property. Someone who suffers loss caused by another's negligence may be able to sue for damages to compensate for their harm. Such loss may include physical injury, harm to property, psychiatric illness, or economic loss. The law on negligence may be assessed in general terms according to a five-part model which includes the assessment of duty, breach, actual cause, proximate cause, and damages. ELEMENTS OF NEGLIGENCE Duty of care Breach of duty Causation Injury Damages Most jurisdictions say that there are four elements to a negligence action: Duty: the defendant has a duty to others, including the plaintiff, to exercise reasonable care, Breach: the defendant breaches that duty through an act or culpable omission, Damages: as a result of that act or omission, the plaintiff suffers an injury, and Causation: the injury to the plaintiff is a reasonably foreseeable consequence of the defendant's act or omission. Duty of care The legal liability of a defendant to a plaintiff is based on the defendant's failure to fulfill a responsibility, recognized by law, of which the plaintiff is the intended beneficiary. The first step in determining the existence of a legally recognized responsibility is the concept of an obligation or duty. In the tort of negligence the term used is duty of care The case of Donoghue v. Stevenson [1932] established the modern law of negligence, laying the foundations of the duty of care and the fault principle which, have been adopted throughout the Commonwealth. Donoghue and her friend were in a café in Paisley. The friend bought Mrs Donoghue a ginger beer float. She drank some of the beer and later paused the remainder over her ice-cream and was horrified to see the decomposed remains of a snail exit the bottle. Donoghue suffered nervous shock, but did not sue the cafe owner, instead suing the manufacturer, Stevenson. The case proceeded to the House of Lords, where Lord Atkin interpreted the biblical ordinance to 'love the neighbor' as a legal requirement to 'not harm your neighbor.' He then went on to define neighbor as "persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question." In England the more recent case of Caparo Industries Plc v. Dickman [1990] introduced a 'threefold test' for a duty of care. Harm must be (1) reasonably foreseeable (2) there must be a relationship of proximity between the plaintiff and defendant and (3) it must be 'fair, just and reasonable' to impose liability. However, these act as guidelines for the courts in establishing a duty of care; much of the principle is still at the discretion of judges. Breach of duty Once it is established that the defendant owed a duty to the plaintiff/claimant, the matter of whether or not that duty was breached must be settled. The test is both subjective and objective. The defendant who knowingly (subjective) exposes the plaintiff/claimant to a substantial risk of loss, breaches that duty. The defendant who fails to realize the substantial risk of loss to the plaintiff/claimant, which any reasonable person in the same situation would clearly have realized, also breaches that duty. However, whether the test is objective or subjective may depend upon the particular case involved. Causation In order for liability to result from a negligent act or omission, it is necessary to prove not only that the injury was caused by that negligence, but also that there is a legally sufficient connection between the act and the negligence. For a defendant to be held liable, it must be shown that the particular acts or omissions were the cause of the loss or damage sustained. Although the notion sounds simple, the causation between one's breach of duty and the harm that results to another can at times be very complicated. The basic test is to ask whether the injury would have occurred 'but for', or without, the accused (defendant) party's breach of the duty owed to the injured party. Injury Even though there is breach of duty, and the cause of some injury to the defendant, a plaintiff may not be recovered unless he can prove that the defendant's breach caused a pecuniary injury. This should not be mistaken with the requirements that a plaintiff prove harm to recover. As a general rule, a plaintiff can only rely on a legal remedy to the point that he proves that he suffered a loss; it was reasonably foreseeable. It means something more than pecuniary loss is a necessary element of the plaintiff's case in negligence. When damages are not a necessary element, a plaintiff can win his case without showing that he suffered any loss; he would be entitled to nominal damages and any other damages according to proof. Damages Damages place a monetary value on the harm done, following the principle of restitutio in integrum (Latin for "restoration to the original condition"). Thus, for most purposes connected with the quantification of damages, the degree of culpability in the breach of the duty of care is irrelevant. Once the breach of the duty is established, the only requirement is to compensate the victim. One of the main tests that is posed when deliberating whether a claimant is entitled to compensation for a tort, is the "reasonable person". The test is self-explanatory: would a reasonable person (as determined by a judge or jury), under the given circumstances, have done what the defendant did to cause the injury in question; or, in other words, would a reasonable person, acting reasonably, have engaged in similar conduct when compared to the one whose actions caused the injury in question? Simple as the "reasonable person" test sounds, it is very complicated. It is a risky test because it involves the opinion of either the judge or the jury that can be based on limited facts. However, as vague as the "reasonable person" test seems, it is extremely important in deciding whether or not a plaintiff is entitled to compensation for a negligence tort. Damages are compensatory in nature. Compensatory damages addresses a plaintiff/claimant's losses (in cases involving physical or mental injury the amount awarded also compensates for pain and suffering). The award should make the plaintiff whole, sufficient to put the plaintiff back in the position he or she was before Defendant's negligent act. Anything more would unlawfully permit a plaintiff to profit from the tort. Types of damage Special damages - quantifiable dollar losses suffered from the date of defendant's negligent act (the tort) up to a specified time (proven at trial). Special damage examples include lost wages, medical bills, and damage to property such as one's car. General damages - these are damages that are not quantified in monetary terms (e.g., there's no invoice or receipt as there would be to prove special damages). A general damage example is an amount for the pain and suffering one experiences from a car collision. Lastly, where the plaintiff proves only minimal loss or damage, or the court or jury is unable to quantify the losses, the court or jury may award nominal damages. Punitive damages - Punitive damages are to punish a defendant, rather than to compensate plaintiffs, in negligence cases. In most jurisdictions punitive damages are recoverable in a negligence action, but only if the plaintiff shows that the defendant’s conduct was more than ordinary negligence (i.e., wanton and willful or reckless). Aggravated damages - In contrast to exemplary damages, compensation are given to the plaintiff when the harm is aggravated by the defendant's conduct. For example, the manner of this wrongful act increased the injury by subjecting the plaintiff to humiliation, insult. MENTAL HARM NERVOR SHOCK In English law, a nervous shock is a psychiatric illness or injury inflicted upon a person by intentional or negligent actions or omissions of another. Often it is a psychiatric disorder triggered (cause) by witnessing an accident, for example an injury caused to one's parents or spouse. Although the term "nervous shock" has been described as "inaccurate" and "misleading",[ambiguous] it continues to be applied as a useful abbreviation for a complex concept. The possibility of recovering damages for nervous shock, particularly caused by negligence, is strongly limited in English law. Definition = To amount in law to "nervous shock", the psychiatric damage suffered by the claimant must extend beyond grief or emotional distress to a recognized mental illness, such as reactive depression. Damages for bereavement (sorrow) suffered as a result of the wrongful death of a close one (friend, sister e.t.c) courts can also award damages for "pain and suffering" as a result of physical injury. Main article: Intentional infliction of emotional distress It is well established in English law that a person who has intentionally and without good reason caused another emotional distress will be liable for any psychiatric injury that follows. An example of this is a bad practical joke played on someone which triggered (caused) serious depression in that person. The joker intended to cause the other person emotional distress and will be liable for the medical consequences. Main article: Negligent infliction of emotional distress Before a claimant can recover damages for the nervous shock which he suffered as a result of the defendant's negligence, he must prove all of the elements of the tort of negligence: The existence of a duty of care, i.e. the duty on the part of the defendant not to inflict nervous shock upon the claimant; A breach of that duty, i.e. the defendant's actions or omissions in the circumstances fell below what would be expected from a reasonable person in the circumstances. A causal link between the breach and the psychiatric illness, i.e. the nervous shock was the direct consequence of the defendant's breach of duty; The nervous shock was not too remote a consequence of the breach. For fear of spurious actions and unlimited liability of the defendant to all those who may suffer nervous shock in one form or other, the English courts have developed a number of "control mechanisms" or limitations of liability for nervous shock. These control mechanisms usually aim at limiting the scope of the defendant's duty of care not to cause nervous shock, as well as at causation and remoteness. Primary victims A "primary victim" is a person who was physically injured or could foreseeably have been physically injured as a result of another person's negligence. An example of this is a claimant who is involved in a car accident caused by the defendant's careless driving and gets mildly (slightly) injured (or even remains unharmed) as a consequence, but the fright from the crash triggers caused a serious mental condition. Such a claimant can recover damages for his car, his minor injuries and the nervous shock he had suffered. Rescuers (such as firemen, policemen or volunteers) who put themselves in the way of danger and suffer psychiatric shock as a result used to be "primary victims”, the decision in White v Chief Constable of the South Yorkshire Police explained that rescuers had no special position in the law and had to prove reasonable fear as a consequence of exposure to danger. Secondary victims A "secondary victim" is a person who suffers nervous shock without himself being exposed to danger. An example of this is a spectator at a car race, who witnesses a terrible crash caused by negligence on the part of the car manufacturers and develops a nervous illness as a result of his experience. It is in these cases where the courts have been particularly reluctant to award damages for nervous shock. In several decisions, the courts have identified several strict requirements for the recognition of a duty of care not to cause nervous shock, as well as causation and remoteness: The claimant must perceive a "shocking event" with his own unaided senses, as an eye-witness to the event, or hearing the event in person, or viewing its "immediate aftermath (outcome)". This requires close physical proximity to the event, and would usually exclude events witnessed by television or informed of by a third party. The shock must be a "sudden" and not a "gradual" (slow or continuous) assault on the claimant's nervous system. So a claimant who develops a depression from living with a relative debilitated by the accident will not be able to recover damages. If the nervous shock is caused by witnessing the death or injury of another person the claimant must show a "sufficiently proximate" relationship to that person, usually described as a "close tie of love and affection". Such ties are presumed to exist only between parents and children, as well as spouses and fiancés. In other relations, including siblings, ties of love and affection must be proved. It must be reasonably foreseeable that a person of "normal fortitude" in the claimant’s position would suffer psychiatric damage. The closer the tie between the claimant and the victim, the more likely it is that he would succeed in this element. However, once it is shown that some psychiatric damage was foreseeable, it does not matter that the claimant was particularly susceptible (subject) to psychiatric illness - the defendant must "take his victim as he finds him" and pay for all the consequences of nervous shock. STANDARD OF CARE In tort law, the standard of care is the only degree of prudence and caution required of an individual who is under a duty of care. The requirements of the standard are closely dependent on circumstances. Whether the standard of care has been breached is determined by the trier of fact, and is usually phrased in terms of the reasonable person. It was famously described in Vaughn v. Menlove (1837) as whether the individual "proceed with such reasonable caution as a prudent man would have exercised under such circumstances". =Professional standard of care In certain industries and professions, the standard of care is determined by the standard that would be exercised by the reasonably prudent manufacturer of a product, or the reasonably prudent professional in that line of work. Such a test (known as the "Bolam Test") is used to determine whether a doctor is liable for medical malpractice. The standard of care is important because it determines the level of negligence required to state a valid cause of action. In the business world the standard of care taken can be described as Due Diligence or performing a Channel Check. =Medical standard of care A standard of care is of a medical or psychological treatment guideline, and can be general or specific. It specifies appropriate treatment based on scientific evidence and collaboration between medical and/or psychological professionals involved in the treatment of a given condition. Some common examples: Treatment standards applied within public hospitals to ensure that all patients receive appropriate care regardless of financial means. Standards of Care for the Health of Transsexual, Transgender, and Gender Nonconforming People 1. Diagnostic (analytical) and treatment process that a clinician should follow for a certain type of patient, illness, or clinical circumstance. Adjuvant chemotherapy for lung cancer is "a new standard of care, but not necessarily the only standard of care". (New England Journal of Medicine, 2004) 2. In legal terms, the level at which an ordinary, prudent professional with the same training and experience in good standing in a same or similar community would practice under the same or similar circumstances. An "average" standard would not apply because in that case at least half of any group of practitioners would not qualify. The medical malpractice plaintiff must establish the appropriate standard of care and demonstrate that the standard of care has been breached, with expert testimony. 3. A physician (doctor) also has a "duty to inform" a patient of any material risks or fiduciary interests of the physician that might cause the patient to reconsider a procedure, and may be liable if injury occurs due to the undisclosed risk, and the patient can prove that if he had been informed he would not have gone through with the procedure, without benefit of hindsight (perceptions). Full disclosure of all material risks incident to treatment must be fully disclosed, unless doing so would impair urgent (crucial) treatment. As it relates to mental health professionals standard of care, the California Supreme Court, held that these professionals have "duty to protect" individuals who are specifically threatened by a patient. [Tarasoff v. Regents of the University of California, 17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (Cal. 1976)]. 4. A recipient of pro bono (free) services (either legal or medical) is entitled to expect the same standard of care as a person who pays for the same services, to prevent an indigent person from being entitled to only substandard care. Medical standards of care exist for many conditions, including diabetes, some cancers, and sexual abuse. =Children A special standard of care also applies to children, who, in a majority of jurisdictions, are held to the behavior that is reasonable for a child of similar age, experience, and intelligence under like circumstances. What constitutes an "adult standard" may depend on local statute, and some have arbitrary age distinctions. Another exception is if the child is engaged in an "inherently dangerous activity." It is up to the trier of fact to decide if the activity is inherently dangerous. If they find that it is, the child must be held to an adult standard of care. Robinson v. Lindsay, 92 Wash.2d 410, 598 P.2d 2392 (1979) (snowmobile); Attorney An attorney is held to the standard that any reasonable attorney in possession of the same knowledge and skill that an ordinary member of his or her profession possesses, as long as he is acting with reasonable care and diligence, in good faith and honest belief that his advice and acts are well founded at the time. Here, mere errors in judgment are excusable (Best Judgment Rule) and cannot be judged solely with the gift of hindsight without substantial injustice. He or she is required to exercise ordinary care and caution (diligence) in the use of that skill (Due Care Rule), and procedural and technical failures are held to be the most common breaches. (Hodges v. Carter, 239 N.C. 517, 80 S.E.2d 144 (1954). =Person subjected to unexpected danger In Cordas v. Peerless Taxi Company, 27 N.Y.S.2d 198 (1941), Justice Carlin rainbowly held that a taxicab driver in New York City may be excused from negligence for jumping out of the moving taxicab to save his own life, leaving the cab (tax) on an unguided trajectory (movement) towards bystanders (passersby). While some persons might choose to be singularly heroic, that standard is not one that is required for an ordinary prudent person. Such a person is held excused from liability, even if such failure might endanger others. An ordinary prudent person is not under any obligation to undertake a heroic (brave) duty at the risk of his own life. "The first duty in an emergency is to one's own self, as long as that person did not contribute to or cause the emergency." (Emergency Doctrine.) =Negligence per se When a state criminal statute (Act) is violated in the course of performing an certainly negligent act, under certain circumstances a court may adopt the statute as establishing a standard of care for tortious liability as well. This is negligence per se. =Reasonable person/ordinary care In balancing risks to establish a reasonable person's standard of ordinary care, the calculus of negligence establishes that the probability of the harm potentially caused (P) must be balanced along with the gravity of the harm which could result (G), against the burden of conforming to a new and less dangerous course of action (B) along with the utility of maintaining the same course of action as it was (U). This is sometimes noted in shorthand as P+G v. B+U, deriving from a formulation expressed by Judge Learned Hand. (United States v. Carroll Towing Co., 159 F.2d 169 (1947).) THANK YOU Nonfeasance is the failure to act where action is required — willfully or in neglect. Misfeasance is the willful inappropriate action or intentional incorrect action or advice. Malfeasance is the willful and intentional action that injures a party. Example: A company hires a catering company to provide drinks and food for a retirement party. If the catering company fails to show up, it is considered nonfeasance. If the catering company shows up but only provides drinks (and not the food, which was also paid for), it is considered misfeasance. If the catering company accepts a bribe from its client's competitor to undercook the meat, thereby giving those present food poisoning, it is considered malfeasance.