Explain Whether Anybody In The Scenario Below May Have A Claim In The Tort Of Negligence
“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.” Per Alderson B. and Blyth V (1856).
In order to establish an understanding with regards to negligence it is very necessary to examine with clarity that whether the defendant is truly careless or ignorant when it comes to performing his duties. And at the same time did his careless attitude bring severe damage or loss to an individual personally or not.
What is Tort of Negligence?
The literal meaning of tort is ‘civil wrong’ and negligence means careless attitude. Therefore, tort of negligence can be explained as an act of doing civil wrong due to one’s personal behaviour. In other words, tort of negligence is said to be a breach of duty or failure to exercise the civil standards that are set by law which ultimately leads to damage or harm to whom the duty was owed. There are many different types of tort of negligence cases, these cases can be based on corporate as well as civil backgrounds.
In order to identify negligence, one needs to assess the following;
Whether the person who is being held responsible for the tort is actually careless towards his duties or not.
And, whether the defendant’s careless attitude towards his duties brought any harm or loss to the claimant in any way or not.
Explanation of The Given Scenario
In the given scenario, firstly, it needs to be established who is the claimant and who is defendant. Although, the situation appears quite confusing as the nurse Lucy has made claim against the company ‘Complete Care’ for her personal injuries. But there is no evidence except Lucy’s own statement that justify her claim because the day on which she claims to have suffered from personal injuries, is the day when the other nurse working with her called in sick. So, there is no evidence whatsoever that proofs her claim to be rightful. On the other hand, a visit from Sergeant Taylor is raising suspicions against Lucy as she has been caught on camera whilst stealing from Elsie’s purse.
In my opinion, it is more likely that the elderly lady Elsie would be able to make claim in the tort of negligence against the agency or the nurse Lucy. The reason why a claim against ‘Complete Care Ltd.’ can be made is because this agency was responsible for appointing Lucy as a nurse to the elderly patient. At the same time nurse Lucy could be charged for her irresponsible behaviour towards her patients and there is evidence of stealing in the form of video tape against Lucy which makes the case even more strong.
The whole scenario can be easily explained with the help of understanding the basics of tort of negligence. It needs to be established that;
Whether a duty of care is owned by the nurse Lucy or the agency to the claimant Elsie
Whether defendant has actually breached duty of care or not
Whether the breach of duty has caused any sufficient damages or loss to the elderly patient Elsie.
Basic Principles of Tort of Negligence
Following principles need to be proven in case of negligence tort;
Duty of Care
Breach of Duty
Damage incurred due to duty’s breach
Duty of Care
The duty of care is dependent upon;
Type of loss; whether it is foreseeable or not.
Level of proximity between the two parties, that is; the closeness of relationship between the dependant and the claimant.
Level of fairness to which the duty of care can be imposed onto the defendant
Facts Involved in the case
On 26th August 1982, Mrs Donoghue and her friend went to a cafe in Paisley located in Glasgow. Her friend bought a bottle of ginger beer for Mrs Donoghue without knowing that the bottle contained the remains of a dead snail. The beer was served in a dark coloured bottle therefore the contents of the bottle remained unknown and Mrs Donoghue drank more than half of it. When a little quantity of beer was left she poured the drink into a glass and found out that it contained the remains of a snail. Later, Mrs Donoghue claimed to suffer from severe gastroenteritis and brought a claim against the bottle manufacturer, David Stevenson for suffering from severe shock and illness. Although, she could have made a claim against the cafe for serving her a contaminated drink but the reason why the claim was being made against bottle manufacturer was because, the remains of the snail were found inside the bottle which eliminates any wrong doings on the part of the cafe therefore the manufacturer was held responsible as he was the one who was responsible for sealing the ginger beer bottle and then distributing it to the designated cafe.
Key elements establishing successful case
In this particular case, the element that determined successful establishment of negligence was the closeness of relationship between the claimant and the defendant. The defendant did owe the claimant a duty to care as the claimant was able to successfully establish that both parties had close proximity in between.
Another example can be viewed here to get an idea of defeating claims made under tort of negligence.
Bourhill v Young
Facts of the case
On 11th October 1938, Mr Young was riding his motorbike at an extremely high speed due t his actions, his bike collided with a car, and as a result of this collision he died. At the same time, Mrs Bourhill was travelling via tram and her location was very close to the site of accident. When the collision happened she was getting off the tram and heard the noise of impact but didn’t actually witness the accident happening. It was established that she was almost 40-50 feet away from the site of the accident. When Mrs Bourhill approached the site of the accident, Mr Young’s body was already removed from the scene but she witnessed the blood which was left on the roadway. In this case, Mrs Bourhill claimed duty of care against the defendant as she suffered from severe nervous system shock and damage to her back. Although she did acknowledge that she did not fear for her own life.
Key elements establishing defeating case
In this particular case, The House of Lords held Mr Young responsible for duty of care to other road users who were travelling at the time of accident within close proximities and those who might have got injured due to the collision. But Mrs Bourhill did not succeed with her claims as it was decided that she was not even near the area of potential danger therefore Mr Young did not owe her any duty of care because there was no risk of foreseeable damages incurred to her, if she was near close proximities then her claims would have been treated as valid.
Application of Duty of Care to the Given Scenario
The elderly Lady Elsie can make a successful claim against the nurse Lucy on the basis of careless behaviour towards duty of care. The elements that lead to such claim include the fact that Lucy did owe duty of care to Elsie and she breached her act of duty of care by stealing from Elsie’s purse. In this case, Elsie’s loss was foreseeable and at the same time both claimant Elsie and defendant Lucy had a close relationship with each other.
So in case of the given scenario, it can be identified that;
The loss incurred by the elderly patient Elsie who was visited by Lucy was foreseeable.
The level of proximity between elderly patient Elsie and nurse Lucy was quite intact. This means they both had a very close relationship because Lucy was responsible for taking care of Elsie on her weekly visits.
It is fair enough to impose duty of care upon Lucy because she worked as a nurse of the patient Elsie.
Breach of Duty
Once it is established that the defendant owes a duty of care to the claimant, the next thing is to figure out the breach of duty. Breach of duty means that the defendant was unable to provide sufficient duty if care to the claimant. In order to decide whether there has been a breach of duty, the court considers following four factors;
1. Firstly, the court will consider the degree or extent of risk involved. That means, they would establish the likelihood of any type of harm occurring, whether there is excessive amount of risk or low risk involved in a particular situation.
2. Secondly, the court analyses what type of precautions could have been taken in order to avoid such breach of duty.
3. Thirdly, it is important to determine the seriousness of the breach. Whether the type of harm caused due to breach was higher in gravity or lower.
4. Lastly, what is the overall social importance of the breach.
Proof of Breach of Duty in The Given Scenario
With the help of hidden camera recording, the claimant can easily proof that Lucy was in breach of her duty and was stealing from her patient. Moreover, to make the case strong, the claimant can add to her case that as there is no proof of Lucy’s previous work experience, vocational qualifications as well as no proof of her CRB check therefore she can be termed as an unqualified person who was working as a nurse.
Damage Incurred Due To Duty’s Breach
Once it is being identified that there has been negligence and duty of care has been breached, then comes the time to assess the damages incurred due to the duty’s breach. The claimant is also responsible for providing proof against the defendant in the matter where it is explained that the defendant was responsible for causing harm or damage to the claimant due to his negligence towards his or her duties. And if the defendant was dutiful, there would have been no breach of duty at all. Moreover, in a case where there are number of possible causes for harm or injury, the claimant is required to provide evidence against the defendant that he or she was responsible for contributing such harm to the claimant. Lastly, it depends on the remoteness of the damage that whether the defendant would be responsible for the harm or not.
Damage Caused In This Scenario
In this particular scenario, it can be said that the defendant Lucy is responsible for causing financial damage to the claimant and if she remained dutiful there would have been no damage incurred to the claimant Elsie. There is more evidence of financial damage than any other type of harm incurred. The claimant Elsie’s valuables were stolen by Lucy which not only caused her financial loss but also caused her and her son emotional stress.
Recommended Action
After the assessment of this particular scenario, it can be recommended that the elderly patient Elsie has the right to make a claim under tort of negligence against the nurse Lucy as she is responsible for not only neglecting duty of care for her patient Elsie but she was also found stealing from her patient’s purse. Moreover, the case can be made strong by applying the fact that the agency Complete Care Ltd. hold no records for Lucy’s previous work experience or vocational qualifications. Also, the agency does not have any information regarding her CRB check.
References
Harlow, C., 2005. Understanding Tort Law. 3rd ed.
Howarth, D., 2006. Many Duties of Care – Or a Duty of Care? Notes From the Underground.
Lunney, M and Oliphant, K., 2003. Tort law – Text and Materials. 2nd ed.
Smith, JC and Burns, P., 1983. Donoghue v Stevenson – The Not So Golden Anniversary.
Stapleton, J., 1995. Tort Insurance and Ideology.
Witting, C., 2005. Duty of Care – An Analytical Approach.
S, F, Deakin and B, S, Markesinis., 2002. Tort Law. 2nd ed.
Gerlad, J, Postema., 2001. Philosophy and the Law of Tort.
