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Published: Fri, 02 Feb 2018
Tort is the branch of law
A tort is the branch of law which provides redress of a legal wrong. The general rule is that where there is no duty of care, there is no right to claim, “Negligence as a tort is a breach of legal duty to take care which results in damage to the claimant”. As each case presented in Court varies, the Court is inclined to examine each case independently to decide if indeed there is a justifiable circumstance present for the case to succeed in tort. The facts of the case should be critiqued carefully as not all circumstances of duty of care would warrant liability. This will then ascertain whether or not there was negligence that eventually caused harm.
Albert’s injury was a result of his action to smother the flames, which resulted in terrible burns. In order to be successful Albert must satisfy; proximity, foreseeability, and public policy to claim in tort. In tort, does Albert have legal standing to claim damages for his injuries? Firstly it has to be established whether there was duty of care owed to Albert and by whom?
With regard to advising the claimants, Albert will have to prove the incident is the cause of his injuries, which it appears to be. Is Albert owed a duty of care from his employer or Torch’s estate? As a rescuer he may sue the one who created the dangerous situation and can sue Torch’s estate. Albert can also take action against his employer. Albert is likely to be classed as a primary victim, as he was involved either directly or immediately as a participant in the events. If this was the case, the defendant would be liable for physical injury to Albert as a result of his negligence, as seen in Page v Smith  physical injury will rarely be too remote. It was reaffirmed in the case of Simmons v British Steel  , the defendants must take their victim as they find them with regards to both physical and psychiatric consequences. Therefore, Albert can be advised he has a claim under physical injury. The outcome would be receipt of damages.
There is no duty imposed on individuals to rescue any personage in danger but once they do, by design they owe duty of care to the one they assist. Albert acted as a rescuer. In order to satisfy foreseeability, the injury to the rescuer must be a reasonably foreseeable consequence of the negligence. It is reasonably foreseeable that someone would assist, seeing the predicament of the person in danger. The predicament of the one in danger, Torch, is enough to establish duty of care and it was reasonably foreseeable that in making the attempt at rescue, Albert would be injured. The Courts recognise that independent duty of care is owed to rescuers where there is a need to rescue. Henceforth the rescuer sues the one that created the dangerous situation which required rescue, this would be Torch. This is to allow the rescuer who has suffered an injury during the rescue to recover damages. In the case of Chadwick v British Railways Board  , the legal principle is that the rescuer may receive damage in the event they incur physical damage or believe they are in physical danger.
In Caparo Industries plc v Dickman , the court introduced a test to establish whether there was an existence of the duty of care owed to the claimant; (i) was the harm foreseeable? (ii) Does a sufficient proximity exist between the parties? (iii) Is it just and reasonable to impose a duty? The question of proximity of relationship and foreseeability of harm differs in each case. Proximity is closely related to policy and has an important role in establishing whether a duty of care exists. Public policy will negate the existence of a duty of care. In certain areas duty of care is not duly owed, for example, legal professions, military personnel and police officers.
Regarding police officers: does the employer have a duty to protect his employee?
In White v Chief Constable of South Yorkshire  , the House of Lords considered claims by police officers who had suffered psychiatric injury after tending the victims of the Hillsborough tragedy. There was strong public policy consideration as to different classes able to claim damages. In this case the police officers failed in tort, yet the effect of the decision was that they established that they may succeed in other circumstances. The court held that the employer is liable to the employee, that an employer has a duty to protect his employees from physical but not psychiatric harm. In the case of Alcock v Chief Constable of South Yorkshire Police , two classifications of victims were introduced; primary victims and secondary victims. Lord Oliver described a primary victim as “a person directly involved in an accident as a participant and who was actually exposed to the risk of physical injury”, whilst a secondary victim would “simply witness the accident.” Albert would be classed as a primary victim as his injuries fit in Lord Oliver’s model. Where White and Alcock had failed, the cases of Mullaney v CC West Midlands , Costello v Chief Constable of Northumbria Police  succeeded, as they were reliant on the physical element of harm and the classification of primary victims. Although they concerned public policy nonetheless the rulings were in line with public consciousness. However as the case of Mulcahy v Ministry of Defence (1996), the general rule changed. No duty is owed to serviceman when engaged in hostilities with enemy due to public policy, as it is not just or reasonable to expect duty of care from an employer during work in those circumstances.
Furthermore, Albert may not be entitled to damages where it is found another compensation system provides redress, such as the Compensation Act 2006 or Criminal Injuries Compensation Board there may not be a ‘duty’ situation in negligence (ref. Hill ).
For Brian’s estate to succeed it needs to establish legal causation that the death was foreseeable and not too remote from the act. One would reasonably foresee it happening as a consequence of inaction by the defendant, Daily Sun. Furthermore, is duty of care owed to the deceased by the defendant? Considering the lack of closeness of the relationship between the deceased and the defendant the damage would be too remote, from non-act and it would be difficult to establish causation. How fair is it to say that defendant had foresight and ought to have foreseen?
Brian must prove that duty of care was owed, and that the Daily Sun knew of Torch’s intent, hence having foresight. Donoghue v Stevenson , created the general principle of liability in negligence, Lord Atkin stated,
“… persons who are so closely and directly affected by my act or omission that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions in question.”
There is a duty of care towards anyone who is reasonably foreseeable as likely to be harmed by carelessness known as ‘the neighbour test’. Brian may argue that the Daily Sun’s failure to act on the letter after reading the contents amounted to carelessness.
However, new cases have invalidated the concept of foresight alone, determining that a duty of care exists. In order to establish duty of care, the following case of Caparo, produced 3 stage principles, foreseeability, proximity and just and reasonableness.
In order to establish the duty of care, proximity between the deceased and the defendant must be proven. Legal proximity need not be physical proximity but the relationship between the parties. The closer the relationship between the victim and defendant the more likely that duty is owed. For example the relationships between doctors and patients, and teachers and pupils, are special and have an element of control. However, in the case of Hill v Chief Constable of West Yorkshire , a mother claimed on the behalf of her daughter’s estate, for alleged negligence in failing to catch the Yorkshire killer earlier. The idea of legal causation is that if no one can foresee something bad happening, how could anyone be responsible? The claim did not succeed as there was insufficient proximity, as there was no specific relationship between the victim and the police; it is too broad to have anticipated the next victim. Furthermore, it failed due to public policy that it would undermine the work of the police with the community. The Daily Sun and Torch are lacking proximity, there seems not to be a pre-existing relationship. Daily Sun can not be held responsible for the omission to do something which they were under no legal obligation to do. If a duty was to be imposed on the Daily Sun, it would mean every letter written by third parties to them must be acted on, seeming an unjust and unreasonable policy to be enforced.
Is the failure by the Daily Sun to report the letter to the authorities a negligent act? They are not obliged by law as there is no established relationship between the victim and the defendant, as mentioned previously. The Daily Sun could not have had the foresight to know the intent or character of the victim. It refers to the victim as a man of ‘unstable disposition’; did Daily Sun know of it? Probably not. Does one infer mental illness or personality flaw? Although it is known Torch had detailed “his plan to stage a ‘protest’ about the government’s attitude towards conflict in the Middle East”, it is unclear to what extent. Did he reveal his will to set himself alight? It is not known. But if he had revealed the scope of his act to the defendant the Daily Sun and they had not warned, would they be responsible? Whilst the Daily Sun had knowledge of Torch’s intent “to stage a ‘protest’ about the government’s attitude towards conflict in the Middle East” it does not indicate the element of danger intended by Torch. In reference to Kirkham v Constable of Greater Manchester , police knowledge of a deceased mental state of mind and their failure to pass the information to prison authorities made them liable for negligence. So Brian must prove as the executor of Torch’s estate that the Daily Sun knew and failed to act on a threat. As a defence, The Daily Sun, can exercise the defence of volenti non fit injuria, the deceased death was caused not by their negligence but instead by the voluntary act of the deceased while of sound mind. Tort of negligence can be excluded, on the assumption of the risk, there is no longer a duty of care running from the defendant to the deceased; without a duty owed by the defendant there can be no negligence on part of the Daily Sun. Referring to Kirkham v. Chief Constable of Greater Manchester Police [1990 ], Loyd, LJ observations,
“So I would be inclined to hold that where a man of sound mind commits suicide, his estate would be unable to maintain an action against hospital or prison authorities, as the case might be. Volenti non fit injuria would provide them with a complete defence.”
In Reeves v Commissioner of Police for the Metropolis  found a man that is of ‘sound mind’ who commits suicide would consider the claimant contributory negligent and reduce the damages. Brian can only recover losses that defendant could ‘reasonably foresee’ the harm. Otherwise, the loss will be ‘too remote’ and defendant is not liable for it.
Volenti non fit injuria would instead provide the defendant, the Daily Sun with a complete defence. Brian seems to not satisfy standing to claim damages from Daily Sun.
Kidner. R., 2008, Casebook on Torts, 10th ed. Oxford: Oxford University Press.
Rogers, W.V.H. (2002) Winfield and Jolowicz on Tort, 16th edn, London: Sweet & Maxwell, p. 103
Vivienne H., Modern Tort Law, 6th ed. Cavendish Publishing.
Alcock v Chief Constable of South Yorkshire Police  1 AC 310
Caparo Industries plc v Dickman  2 WLR 358
Chadwick v British Railways Board  1 WLR912
Costello v Chief Constable of Northumbria Police  EWCA Civ 381,  1 W.L.R. 1437
Donoghue v Stevenson (1932) AC 562 [1932 ] All ER Rep.1
Hill v Chief Constable of West Yorkshire  AC 53;  2WLR 1049
Kirkham v. Chief Constable of Greater Manchester Police  3 All ER 246
Kirkham v. Chief Constable of Greater Manchester Police [1990 ] 2 Q.B. 283
Mulcahy v Ministry of Defence (1996) 2 All ER 758
Mullaney v CC West Midlands  EWCA Civ 700
Page v Smith  4 All ER 522
Reeves v Commissioner of Police for the Metropolis  3 WLR 363
Simmons v British Steel  ICR 585,  UKHL 20
White v Chief Constable of South Yorkshire 1 All ER 1
Compensation Act 2006
Criminal Injuries Compensation Board 2008
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