Causation and Remoteness of Damage

Question: Discuss about the Causation and Remoteness of Damage. Answer: Introduction: Negligence means breach of duty to care resulting in damage to the claimant, and imposing civil liability on the defendant. Section 5 of Civil Liabilities Act, 2002 defines negligence as failure to exercise reasonable care and skill. Under negligence, protection against three types of harm is granted, against personal injury, harm to property, and economic loss. The concept of negligence can be traced back to the judgment of chief judge Shaw in Brown vs. Kendall (1850) this was an action of trespass for assault and battery, wherein it was held that no action can lie in support of plaintiff until he proves lack of ordinary care on behalf of the defendant. In most cases of negligence the standard of care is reasonable care, which in ordinary prudence expected so as to avoid loss. (Statsky, 2011). The tort of negligence emerged so that a person can be held liable for carelessly causing harm to another. (Owen, 2007) There are three essential elements of tort of negligence, first the defendant owes a duty to care to claimant, second the duty to care is breached, and third damage has been caused due to breach of duty. The tort of negligence inflicts civil liability on the defendant so as to compensate the claimant for the damages such as physical or mental injury, loss of earnings, medical expenses, due to the negligent act of the defendant. (Posner, 1972). A person can be held liable for the damage caused to the other to the extent that the harm was foreseeable by him at the time of the breach of duty to care. Therefore it is asserted that negligence is a conduct which falls below acceptable standard. Section 12 of the Civil Liabilities Act, 2003 lay down that the onus of proof of negligence rests upon the person asserting that the act or omission constituted negligence. The tort of negligence is a civil wrong and the claimant is compensated for the loss, if the loss is proved on balance of proba bilities. Issues involved in a case of negligence House of Lords in Caparo Industries PIC vs. Dickman (1990) laid down the test to determine the existence of duty to care. The test requires three questions to be asked, first whether the claimant and defendant have a relationship of proximity, second whether the damage was reasonably foreseeable, and third whether it is reasonable to impose a duty upon the defendant. Whether the conduct of the defendant was reasonably foreseeable to cause injury to the claimant? Whether there exists a relationship of neighborhood or proximity between the defendant and claimant? If there exist a relationship of proximity, is it fair and reasonable to impose duty to care upon defendant towards claimant? As the tort is a civil wrong and it imposes civil liability upon the wrongdoer so the liability of the defendant in the present case would be determined in accordance with the principles laid down in Civil Liabilities Act, 2003. Relevancy of the issues For imposing civil liability on defendant in the present case the essentials of the tort of negligence is to be satisfied: Existence of Duty to care: A general duty of care is imposed on all persons so as to not place others at risk of harm through conduct which is foreseeable to result in harm [S. 9(1)]. The test of foreseeability is also relevant to the concepts of standard of care and remoteness of damages. The first element in the claim of negligence to be proven is that the law recognized a relationship between claimant and defendant, that the defendant owes a duty of care to the claimant. In Donoghue vs. Stevenson (1932) House of Lords held that a manufacturer owes a duty to care in the production of goods to the end consumer. Lord Atkin lay down that a person owes a duty to take reasonable care so as to avoid acts or omissions which can reasonably be foreseen are likely to injure your neighbor. Lord Atkin used the term neighbor to mean a person who is directly affected by the act or omission which caused damage. The standard of care to be exercised in most of the cases is that which a reasonable p erson of ordinary prudence in similar circumstance would have applied. This is known as the neighbor test. It is not essential to ascertain who would be the final consumer; it can be any person who suffers damage due to act or omission of the defendant. House of Lords in Junior Books Ltd. vs. Veitchi Co. Ltd. (1983) held that policy provisions which limited liability, should not preclude an extension of the liability where the neighbor principle was satisfied. In the instant matter it has been expressly mentioned that Trevor used to conduct night trips, but later shifted them to daytime because of several injuries caused to the clients due to fall. despite of the fact that the probability of causing injury was high at nigh time he took too long for completing his work due to which the troop had to return back from the forest area at night. Anna was Trevors client and there exist a relationship of proximity between them as there was likelihood of the fact that Anna would directly suffer from the adverse consequences of negligent act of the defendant. So it can be concluded that Trevor could foresee the damage [S. 9(2)]. Therefore it is just and reasonable to impose liability for breach of duty to care on defendant. Breach of Duty to care: There are various instances where a duty to care exists between the claimant and the defendant, the issue to determine is whether the actions of defendant were sufficient to meet the duty conferred on him. For determining the above standard of care the test of reasonableness [S. 9(1)] is laid down, in other words the steps a reasonable man would have taken in similar circumstances, in case of failure to act reasonably the breach of duty to care occurs. The defendants conduct must meet reasonable standard. In deciding the reasonable persons behavior in the circumstances of a case the court has to determine various factors such as the probability of occurrence of harm, seriousness of harm, the burden of taking precautions to evade harm, social utility of the activity that creates the risk of harm [S. 9(2)]. The said factors are not severable from each other, they co-exist. In the case of Blyth vs. Birmingham Waterworks Co. (1856) and Richards vs. State of Victoria (1969) it was held that the defendants standard of care id determined by apply the test o reasonableness that is to say that the steps what a reasonable person would take in similar circumstances, and it is the duty of the defendant to avoid causing of physical injury to the claimant. Here in the given case Trevor took too long in his work due to which the troop had to return at night. On the other hand when Anna changed from running shoes to high heel shoes Trevor was observing the rare Marbled Frogmouth perched in a tree, and did not exercise the duty to care, he had towards Anna by virtue of the principle laid down in the Blyth and Richards case. [S. 11(1)] Actual Damages occurred: Damages form an important part of the tort of negligence; it is the third essential element of negligence claim. A claim for damages would not lie if the claimant has not suffered actual loss due to the breach of duty to care. In McFarlane v Tayside Health Board (1999) case House of Lords held that, the law of tort in negligence matters allows claim for pain and discomfort arising from personal discomfort. Therefore it can be asserted that the law of negligence requires the tortfeasor to restore the damage, plaintiff sustained, which was the proximate cause of the defendants wrong and it is appropriate to extend the liability of the wrongdoer to the extent of harm caused [S. 11(2)]. Here in the present circumstances it is pertinent to note that Anna sustained an injury [S. 51(a)] on her knee as her heel catches on a tree root and she stumbled down a hill side. Hence Anna is entitled for damages in pursuance of the personal harm [S. 50] caused to her and loss of earnings [S. 55(2)] Defence of contributory negligence Contributory negligence in tort law absolves the liability of the defendant to the extent the plaintiff himself contributed to the act of negligence, resulting in damage [S. 24]. The concept of contributory negligence originated in the case of Butterfield vs. Forrester (1809) wherein the court held that damages would not be granted to the person who could have avoided the harm by exercising ordinary caution [S. 23]. In the case of Davis vs. Mann (1842) the rule of last opportunity was laid which states that the party who has the last opportunity to evade the damage, that party should bear the liability for compensating for the damage. In the case of contributory negligence the onus of proof is on the defendant to prove that the claimant had failed to take reasonable care for his own safety, which resulted in damage, sustained by him. Defense of contributory negligence depends on foreseeability of harm to oneself [S. 23(2)]. In Jones vs. Livos Quarries Ltd. (1952) court held that a person would be guilty of contributory negligence, if he ought to have reasonably foreseen that, in case he did not act as a reasonable prudent man there are probabilities that he might harm himself. The defense of contributory negligence can also be taken in instances where the claimants action would not be inherently dangerous but failure to exercise reasonable care for oneself resulted in the harm. Anna had the last opportunity to avoid the harm, which was likely to be cause by Trevors negligence of carrying on the work for too long, but she changed from running shoes to high heel shoes. Keeping in consideration all these factors it is pertinent to note that Anna failed to act as a reasonable prudent man as it was foreseeable that in case she wears high heel shoes she was likely to harm herself at the forest area. Hence the claimants act was the proximate cause of the injury. Remedies: Contributory negligence is sufficient to defeat a claim of negligence if it is found that the claimant has made 100% contribution towards the harm caused to him. When the court comes to the conclusion that harm caused to a person is a mixed effort of both the claimant and the plaintiff the court determines the damages based on the percentage of contribution each party has done towards the harm caused to the claimant. The court in the case of Jackson v McDonalds Australia Ltd[2014] NSWCA 162 ordered that the claimant was only entitled to 70% of the total damages suffered by him because he contributed 30% towards the injury caused to him as analyzed by the court. The assumption was made by the court as the plaintiff had failed to take reasonable precautions against the clearly displayed warning sign in relation to the wet floor. In this case it is clear that although Trevor had been negligent in complying with his duties there was contribution from Anna towards the harm caused to her. Trevor had been negligent in not noticing that Anna is consuming wine and changing her shoes to heels. He was also negligent by coming late after he went to look for a new spot. Anna on the other hand had ignored clear warning issued by the guidelines and had changed her shoes into heels. Therefore it must be considered in this case that both the claimant and the defendant have made an equal contribution towards the harm caused and damages should be allocated accordingly. According to the principles of Page v Smith[1996] 1 AC 155 a person is liable to pay damages for all the loss suffered by a claimant which is foreseeable by a reasonable person. In this case it is reasonable to foresee that if Anna is injured she would not be able to operate her business and suffer monitory loss. Therefore Trevor is liable to pay damages with respect to the 12 months monitory loss faced by Anna with respect to her business. Conclusion The tort of negligence provides for presence of three essential elements that is duty, breach of duty, and damage. The defendants act or omission to act must be the proximate cause of the damage sustained by the claimant. The test to determine negligence is objective; foreseeability of the harm is to be taken into consideration. Herein the claimant sustained physical injury due to the negligent act of the defendant by taking the troop back from the forest area during night hours despite of the fact that he was aware of the probable harm. The defense available to the defendant is of contributory negligence wherein the liability of the defendant is absolved to the extent the claimant has failed to act as a reasonable prudent man, which led to the injury, loss or damage suffered by the claimant himself, as it is asserted that Anna failed to take reasonable care of herself by wearing high heel shoes, which is the proximate cause of the injury sustained by her and not the cat of the defen dant to lead the troop from forest area during night hour. In the present matter the Claimant is entitled to claim punitive damages to the extent defendant was negligent in exercising his duty to Anna, as she sustained physical injury and lost income due to the injury caused. References Blyth vs. Birmingham Waterworks Co. (1856) 11 Ex. 784 Brown vs. Kendall (1850) 60 Mass. 292 Butterfield vs. Forrester (1809) 11 East 60 Caparo Industries PIC vs. Dickman (1990) 2 AC 605 Davis vs. Mann (1842) 10 MW 546 Donoghue vs. Stevenson (1932) AC 562 Jones vs. Livos Quarries Ltd. (1952) 2 QB 608 Junior Books Ltd. vs. Veitchi Co. Ltd. (1983) AC 520 McFarlane v Tayside Health Board (1999) 4 All ER 961 Richards vs. State of Victoria (1969) V.R. 136, 143 Dimond, B. (2011). Legal aspects of occupational theory. 3rd ed. Hoboken: Wiley Law of negligence review (n.d.). Foreseeability, Standard of Care, Causation and Remoteness of Damage, pp. 102-108. Available at: https://www.treasury.gov.au/ConsultationsandReviews/Reviews/2002/~/media/Treasury/Consultations%20and%20Reviews/Reviews%20and%20Inquiries/2002/Review%20of%20the%20Law%20of%20Negligence/Key%20Documents/PDF/Foreseeability.ashx [Assessed 26 December, 2016] Owen, D, G. (2007). The five elements of negligence. Hofstra law review, 35(4), pp. 1671-1674 Posner, R, A. (1972). A theory of negligence. 1 Journal of Legal Studies 29, pp. 29-32 Statsky, W, P. (2011). Torts: Personal injury litigation. 5th ed. USA: Delmar Van Dongen, G, D. and Verdam, H, P. (2016). The development of the concept of contributory negligence in english common law. Utrecht law review, 12(1), pp. 64-69