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Published: Fri, 02 Feb 2018
Negligence is the omission
Negligence is 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. Until 1930 the British Courts did not recognize the general duty in tort for a careless behavior and its liability, when Donoghue v Stevens  AC 562 established the tort of negligence and the duty of care. The elements which confirm the existence for the tort of negligence are the ‘breach of duty’ and the ‘causation of damage’. The breach of duty imposes that the defendant acted carelessly failing to stand in the appropriate level of care he owned to the plaintiff and subsequently the court will examine the degree of risk, the seriousness of harm, the precautions which practically should be taken and the risk of the activity to the social. A number of tests were created in order to indicate whether a tort of negligence existed. One of them is the ‘neighbor principle’, obviously this principle does not refer to our neighbor but legally as Lord Atkin stated, means that ‘persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected..’ as being ‘ my neighbors’. However in Anns v Merton London BC  AC 728 the principle of the neighbors was redefined in ‘three-stage test’ by Lord Wilberforce.
In order to understand the legal issues which arise and for the full comprehension of our case we should first refer to the material facts of the case. In our case Torch a young and liberal man with unstable disposition, wrote a letter explaining his own plan to stage a ‘protest’ about the conflict which existed between the British government and the Middle East, which subsequently delivered it to Daily Sun. Two days had passed and a large crowd and sightseers went to see the State opening of Parliament while Torch doused his body in petrol and set fire on his clothes. A policeman, named Albert, was on duty outside the Parliament, obviously he tried and attempted to smother the flames but he was badly burned. The father of Torch, named Brian is the executor of his property. Brian blames the Daily Sun for the death of Torch as it previously knew the risk and the foreseeability of damage, failing to act in any way after reading Torch’s letter. In this case we will identify the primary and secondary faults which leaded to the death of Torch. We will examine the negligence of Torch with his careless behavior, which caused the injuries to the policeman trying to smother the flames as far as the duty of the policeman to protect the stage of Parliament and his unsuccessful effort to smother the flames and save Torch. Have the sightseers a duty to react or the right to don’t act while this situation was made? Finally we will examine the responsibility of Daily Sun failing to prevent the death of a man by knowing somehow what to expect the following day and failing to act.
As we have already pre-mentioned in our case, Torch is described as a young man with liberal sympathies but unstable disposition. Torch is probably a deliberate person, interested for the social events and affected by the conflicts between the British government and the Middle East. He plans to stage a protest and two days later, dies burning himself with petrol. According to the facts, Torch’s actions, are far from reasonable and without care. He is acting careless and unreasonable which shapes the position of an unreasonable man. In Hall v. Brooklands Auto-Racing Club (1933) 1 KB 205, Clapham Omnibus was first mentioned to describe what a reasonable man is. The standard of being a reasonable person is that of being an ordinary citizen.
The letter which Torch delivered to Daily Sun, foreshadow that a protest is going to be made but there is no reaction on behalf of the Daily Sun to prevent or to report the situation. The question which arises is whether the risk of letting this happening was substantial and if Daily Sun was not concerned with the costs of preventing it. This will be answered by explaining the legal term of ‘hand formula’. Hand formula is a concept which modulates the ‘optimum standard of care’ so the accidents can be avoided. This implies that there is a demanded duty of care in which there is the possibility to injure someone and there must be an interest to sacrifice in order to avoid the risk. Obviously Daily Sun did not interpret the situation and did not proceed to the necessary actions to avoid the risk; this action represents luck of care and a moral blameworthiness on behalf of Daily Sun. In addition the letter could also be a proof of fault. Res ipsa Loquitor which means that ‘the thing speaks for itself’
1) Civil evidence Act 1968 s11
2) the remoteness of damage.
If we consider that Torch is responsible for the policeman who was burned badly trying to smother the fire, subsequently there is a ‘chain of causation’ whereas there is a fault and damage. However Daily sun involves to this situation by knowing from the delivered letter that Torch is going to stage a protest. According to this Daily Sun breaks the chain of causation and creates the ‘novus actus interveniens’ which means that it creates a new intervening act. The letter informs Daily Sun that a stage of protest is going to follow two days later; it is not only foreseeable but is very likely to create confusion and awake the public. Although Daily Sun knew about the situation and should have acted appropriately probably by informing the father about the letter and the police power and in this way acting careless and negligently, this does not amount that Daily Sun could predict that Torch would die by burning himself at the stage of the protest. Even thought the luck of care is controversy with the neighbor’s test, the death in these circumstances cannot be predictable. In addition the action of the policeman to smother the flames could be regarded as a contributory negligence. According to Contributory negligence Act 1945 ‘where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced..’ However the policeman has special training and special authority to act. His action was beyond his authority and volenti non fit injuria that is to say that ‘where a person engages in an event accepting and aware of the risks inherent in that event, then they cannot later complain of, or seek compensation for an injury suffered during the event.’Albert knew that even though he had a duty outside the Parliament, would be unreasonable to put himself in danger by trying to smother the flames.
At this point we should consider the Wagon Mound, is the principle in which ‘the defendant will not be liable for a kind of damage which he could not reasonably have foreseen.’ In order to understand the meaning of the principle we should first explain the
Examining the case, Brian who is the father of Torch, blames the national newspaper for Torch’s death. Daily Sun knew Torch was going to stage a protest from the letter. If we consider the neighbor’s test which we have already explained, then the Daily Sun would be responsible for not acting with care, creating a causal link for breach of duty and damages, and becoming in this way liable on behalf of Torch’s father. The question which arises is whether the father has the right to compensate from Daily Sun for the loss of his child. According to British law, courts accepted that only a psychiatric or ‘nervous shock’ could constitute damage and compensation in torts of negligence ‘caused by harm or the threat of harm to a person other than the claimant.’ A similar example is illustrated in Alcock v Chief Constable of South Yorkshire  1 AC 310, where 96 people had died and crushed due to the fact that the one part of the stadium was crowded. The fault was made by the negligence of the police which allowed to too many supporters to enter into the one part of the stadium. The plaintiffs were secondary victims, who had been indirectly affected by the loss or the injuries of their friends and their relatives. The court described the relevant occasion as an ‘anxiety disorder’ judge tou dikasth. In contrast with the pre-mentioned case, in Osman v United Kingdom  29 EHRR 245 the police had already known for the existing danger and failed to protect the victims from the violent actions of a third party resulting the plaintiff’s father death. However the court held that the police force had no duty of care either for the plaintiff or the father. Even though this action came into contravention of article 6 of ECHR , according to Osman rule the police granted a ‘blanker immunity from civil liability for operational errors.’ This implies that Albert could protect himself without any liability for breach of duty or luck of care. Even though Albert had a duty as a policeman, he had also the right to protect and choose his own safety. However even though Albert is badly burned, this does only amount to a negligent action failing to protect himself.
At this point we should recognize the fundamental differences between the primary and the secondary victims. In contrast with secondary victim, the primary victims are directly involved in an accident and suffer psychiatric injury, whereas either fear the idea of the injury or had been physically injured. The secondary victims suffer psychiatric injury by witnessing or being informed about an accident which involves another person. This implies that Brian, who is probably informed about the death of Torch without being a witness or suffered any psychiatric injury, is considered to be a secondary victim. However according to British law ‘no damages are awarded for grief or sorrow caused by a person’s death’ unless it exists the limitation of the claim for bereavement.
To conclude the blame and the damages should not amounted to only one. They all have a merit and participate to the death of Torch. The negligence on behalf of Albert, who tries to prevent the happening and is badly burned, the negligence to act and care on behalf of Daily Sun, which had from previously known about the letter and Torch’s plan to stage a protest and the Father of Torch, who becomes a secondary victim. However if we consider deeper the fully blame amounts to the attitude of Britain’s government towards to the Middle East, which resulted the protest and finally the behavior on behalf of Torch to explain and show his own displeasure by burning his clothes and himself.
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