In the case of Nova Mink v Trans Canada Airlines , the High Court ruled that airplanes that are governed by the Air Traffic Rules which are ruled by competent authority shall be subject to common law duties of care, unless otherwise excluded by legislation that expressly provides for an exclusion. This is regardless of the fact that they cover a wider range of mobility, both in vertical and horizontal settings. In the case of aeroplanes, they cannot be analogous to railways since the latter is excused when operating in accordance with statutory rules including accidents which occurred in level crossings due to excessive speed or inadequate fencing precautions. However, aeroplanes cannot be excused from common law duties of care, which makes that defendant airline responsible for its conduct that includes the unreasonable risk or harm. The duty of care created a relationship and gave rise to such duty. Here, the liability of a defendant shall not be entirely dependent on its conduct which caused harm to another. it includes the court’s determination based on conduct that a reasonable man would have foreseen the harm sought to be prevented.
The existence of a duty to the plaintiff and its scope will be decided based on the test of reasonableness to determine the liability of the defendant. The qualification of the law on the conduct of a reasonable man to determine the potential danger or harm should includes the notice of plaintiff’s current situation. Such notice is based on the alleged facts and lack of knowledge regarding the susceptibility to harm the plaintiff brought about by defendant’s conduct. The defendant is under no duty to refrain from his actions if there is a clear showing that it will otherwise be harmless.
In this particular case, the aero plane was on a scheduled flight over an approved Airway that decided to fly to the south, which is on its common line of flight to avoid clouds. To be able to do this, the aeroplane had to pass over a hill by performing a fly contact preparatory for its landing at the airport. However, when it passed a hill, there was a mink which lay its young in a ranch underneath the airway. The unexpected noise coming from the airplane caused the female mink to whelp and caused it to devour its young. In this scenario, the Airline and the pilot who was on the flight were both unaware of that there was a ranch in such location. However, there is an information circular earlier which provided a warning to the pilots about flying over such farms after having been marked with specific identifications, but there was no indication on the number of farms and their exact locations.
In the case of Dorset Yacht Co. Ltd v Home Office, Lord Reid stated that, in order to hold the respondent liable for damages through the act of negligence of the trainees, the respondent’s officers should have been foreseen in all probability that harm or injury will occur on the ground of failure to exercise proper control of supervision over the trainees. Hence, there was no duty of care on the part of the respondent since they could not have reasonably foreseen the damage caused on the yacht owned by the claimant. This ruling was supported in the case of Lamb v Camden London Borough Council .
However, in the case of Kent v Griffiths , the High Court ruled that the defendant ambulance service owed a duty of care to the claimant. Here, the defendant should have reasonably foreseen that the claimant patient will incur further suffering or illness in the event that the ambulance did not come on time. Therefore, the duty of care on the part of the ambulance service was breached. In the case of Nettleship v. Weston, the High Court in a similar ruling stated that there was a breach of the duty of care on the part of the defendant even if he was only a learner driver. The standard of care required for a learner driver and skilled driver are the same to avoid injury or harm to their passengers. Therefore, an inexperienced driver owed the plaintiff a duty of care even of the plaintiff was aware of his lack of driving experience.
In this particular case of Nova Mink, the pilot of the aircraft has no means to check if there was a farm or object on the ground while the aircraft made a conjectural over the hill. It was impossible for the pilot to have reasonable foreseen harm or damage would be caused to the mink ranch. The High Court held that the defendant airline is not obligated to observe the duty of care with respect to the damage suffered by the mink farm.
In applying the formula of duty of care in negligence, the Court’s approach to policy issues in novel claims concerning the imposition of a duty of care shall be the responsibility of the conduct that involves unreasonable risk. A duty of care was originally established by applying Lord Atkins' “Neighbour” theory from the classic case of Donoghue v Stevenson, where Lord Atkins transformed the biblical saying “love thy neighbor” into a legal saying “not to harm thy neighbor”. Atkins explained that the concept of neighbor means the “person shall be closely and directly affected by my own act, that which should be reasonably contemplated to be affected, as I direct my mind to the very acts or omissions that are being put in issue”. In the case of Caparo Industries plc v Dickman , the High Court has settled a three-fold test for the duty of care to arise: 1.) there is a foreseeable harm caused by the defendant’s conduct; 2.) there must be a relationship of proximity existing between the parties; and 3.) liability shall only be imposed if the circumstances are just, fair and reasonable.
The primary factor in this element is the existence of a relationship of proximity between the parties such as legal relationships or at least physical closeness. The plaintiff, Nova Mink should be able prove this point to prove that there was a legal relationship that exists between the plaintiff and the defendant. The second core key in this element is whether the consequences of the defendant’s act were reasonably foreseeable. Any reasonably foreseeable harm must be compensated. The concept of tort or “restitution” is to compensate the plaintiff for the injuries that were suffered for failure of the defendant to fulfill the standard of care required by law. The primary purpose of tort law is to provide punishment for the tortfeasor. There are three elements in order to impose liability. First is the existence of a duty of care. It is necessary to be able to determine the duty and its scope; Second element is the breach of the duty, and the third element is the causation of damage.
In the case of Blyth v Birmingham Waterworks Co. , the High Court held that negligence is an act or omission, which any prudent and responsible man, who has been enlightened by such considerations, failed to observe the standard of care in the conduct of human affairs. Negligence occurs when a prudent and reasonable person failed to observe the duty of care after an act had been done, or while in the course of doing such act. Negligence law promotes the ideals of corrective justice in righting wrongs. Negligence has four elements which include duty, breach, causation and damage. The plaintiff must be able to establish each element to be able to prove an action of negligence. The High Court held that it is clearly impossible under the circumstances for the pilot to define the spatial limits of the duty, to have knowledge that a mink farm exists and the mink’s conduct. Therefore, the defendant cannot be held liable for the tort of negligence after scaring the animals in the commercial mink farm. There was failure to foresee the scenario that scaring the mink will drive them to eat their young and cause considerable harm to plaintiff. Therefore, no duty of care exists on the part of the defendant to hold it liable for damages.
Bibliography:
Cases
Blyth v Birmingham Waterworks Co. [1856] 1156 Exch. 781
Caparo Industries plc v Dickman [1990] UKHL 2
Donoghue v Stevenson [1932] AC 562 (HL)
Dorset Yacht Co. Ltd v Home Office [1970] AC 1004 (HL)
Kent v Griffiths [2000] 2 WLR 1158 (CA)
Lamb v Camden London Borough Council [1981] 2 All ER 408 (CA)
Nettleship v Weston [1971] 2 QB 691 (CA)
Nova Mink v Trans Canada Airlines [1951] DLR 241
Books
Cooper-Stephenson, K. D. and Gibson, E. Tort Theory (Captus Press, Inc. 1993)
Hodgson, J. and Lewthwaite, J. Tort Law Textbook (Oxford 2007)
Mares, R., The Dynamics of Social Corporate Responsibilities (Martinus Nijhoff Publishers
2008)
Journals
Mullender, R., Negligent, Misstatement, Threats and the Scope of Hedley Byrne
Principle (1999) 62(3) The Modern Law Review. 425.
Mullender, R. and Speirs, A., Negligence. Psychiatric Injury, and the Altruism Principle.
(2000) 20(40) Oxford Journal of Legal Studies. 646.
