The Legal Duty of Care in Tort Law, Foreseeability of Injury

DUTY OF CARE IN TORTS LAW, LIABILITY, FORESEEABILITY OF NEGLIGENCE, RECKLESSNESS, NUISANCE


Duty of care in Donaghue -v- Stevenson 1932 was defined as exercising such care as is due in such 'acts or omissions which you can reasonably foresee would be likely to injure persons so directly affected that you ought reasonably to have them in contemplation' and Caparo Industries -v- Dickman 1990 referred also to situations in which it would be fair, just, and reasonable to impose.
This duty is owed to one in physical proximity: e.g., in Haseldine -v - Daw 1941 to user of a lift negligently repaired, Buckland -v- Guilford Gas Light 1941 to child electrocuted by low cables upon climbing a tree, but not to a mother for shock nor for miscarriage to one who was to be who the driver and the rider could not to have known that were around in King -v- Phillips 1953 and Bourhill -v- Young 1942; or to one in legal proximity: e.g., in Donaghue -v- Stevenson 1932 for illness of consumer from manufacturer's drink purchased by another, but not if immune as public policy in Hill -v- Chief Constable 1988, or as barristers or judges - Saif -v- Sydney Mitchell 1980; or to one with blood-ties: e.g., in McLoughlin -v- O'Brien 1982 to a mother who by news of accident 'it was obvious that would be affected' ~it can be owed for financial loss in special professional relationships -Mutual Life Assurance -v- Evett 1971, for careless words not made clear as being without responsibility -Hadley Byrne -v- Heller & Partners 1964, and for serious nervous shock -Reilly -v- Merseyside RHA 1994.

The harm, additionally, if reasonably foreseeable is -Fardon -v- Harcourt 1932, negligence may entitle to damages, even punitive, Rookes -v- Bernard 1964, although if contemptuously claimed to as little as the smallest coin of the realm, e.g., without costs and nominal in Constantine -v- Imperial London Hotels 1944.

Circumstances in which a duty of care can be breached, except in the case of specific torts such as libel or trespass -or under the Rylands -v- Fletcher rule where lawfully but at one's own peril is made any unnatural use of land and excluding cases of immunity and circumstances where a statutory duty properly exercised infringes a right -such as the disturbance caused by the noise of aircraft taking of or landing - but not if improperly exercised: Fisher -v- Ruislip-Northwood UDC 1945, such circumstances may be even when a risk is know and not objected to: Smith -v- Charles Baker & Son 1891, indeed where a risk is known and has been consented to: Bowater -v- Rowley Regis Corp. 1944 ~even if there is contributory negligence: Stapley -v- Gypsum Mines Ltd 1953 -indeed even if despite instructions.

The standard is that of the 'reasonable man'; if injury was risked: Bolton -v- Stone 1951 ~6 times in 30 years meant not and the degree of the risk is proportional to the degree of care required; the seriousness of the injury risked too is proportional the degree of care necessary: Paris -v- Stepney BC 1951 -more so to employee blind in one eye, and not the amount but the type of the injury on the basis of: British Railways Board. -v- Herrington 1972; a social value whether justified the risk: in Fisher failure was not justified in war-time black-out to put up shaded lights to avoid public nuisance to a cyclist, in Watt -v- Hertfordshire CC 1954 getting the wrong vehicle on the scene of accident was justified by the valuable time that would have been lost in getting there help; the cost-benefit consideration: in Latimer -v- AEC 1953 to have done more than reasonable would have made the risk too remote in comparison -except if there is a statutory duty such as under the Health & Safety Acts; that standard in the case of an expert's negligence is, instead -Latimer, of a 'reasonable expert'. 
The link between the breach of duty and the resultant damage must be shown to exist as a matter of fact or a matter of law. The former is subject to the 'but for' rule: in Barnett -v- Chelsea etc. Hospital etc. 1968 breach by the failure of the doctor to call was not the caused of death, McWilliams -v- Sir Arrol 1962 failed because the safety-belt would not have been worn if supplied, in Cutler -v- Vauxhall motors 1971 the operation on a graze had already been ordered for an ulcer on the site of it and was a pre-existing condition; but, is not broken a causative link by a consecutive cause and did not lessen a subsequent injury the original factors in Baker -v- Willoughby 1970, nor necessarily disentitle multiple causes when on a balance of probabilities the link considerably was the reason: McGhee -v- National Coal Board 1973; where the harm or part of it is from a third party's breach the 'but for' rule still applies to whether he type of injury could have been seen: Hogan -v Betinck Colliers 1949.

The latter only applies if the breach is not too remote, and it was not in Wieland -v- Cyril Lord Carpets 1969 that the fall elsewhere and later had resulted from the necessity to discard bi-focal glasses caused by the driver's negligence; the special sensitivity of the claimant did not matter -'egg-shell skull' rule: Robinson -v- Post Office 1974 -'one must take the victim as he finds him'; in The Wagonmound 1961 at the time of the breach that oil spilled could burn on sea-water could not reasonably, and in Doughty -v- Turner Mfg. 1964 because of the state of knowledge, have been foreseen; but in Bradford -v- Robinson Rentals 1967 the frostbite was because of providing a van without a heater.

The claimant's proof can move to the defendant: Steer -v- Durable Rubber 1956; at least some evidence is necessary of negligence even if 'facts speak for themselves' -they can not if the claimant can not say what happened: Wakelin -v- LSWR 1886, negligence can be inferred from absence of explanation by defendant, for any by claimant by Law Reform (Contributory Negligence) Act 1945 proportionate reduction is made. 

Taking care of Claims of Accidents Victims

A lot of people are involved in accidents all over the world due to various reasons or causes. This might be from a defaulter of traffic light, recklessness, negligence, complicated sequence of road incident and many more. This is the reason why it is imperative for people to be very care while on the road. However, no matter how careful a driver or person might try to be, there some accidents that would still occur. Accident injury has become something common that anyone can fail victim of.  The problem that arises during an accident is that it might be difficult to nail the person responsible if there is no concrete evidence. Accidents can occur in different places which is why injuries that are received from accidents are treated differently. And because of this, there are different types of legal claims that are received from accident victims
If you've been injured in an accident, whether it's a slip and fall, a car accident or medical malpractice, it can be hard to prove who is responsible. Here are some frequently asked questions about accident fault. Negligence is one major challenge of accidents and because of this a victim would always sue for compensation when this happens. For those making use of the roads, it is their responsibility to maintain safety of others and themselves by being careful and also by ensuring that they do not neglect their duties while on the road. Driving and drinking is recklessness that can cause accident claim against the driver if an accident occurs. Accidents can be caused by someone engaging in sex that is unprotected knowing that he or she has a venereal disease that would affect the victim. Making use of drag racing in residential areas can cause accident and also making use of substances in public areas can equally cause a medical or health accident. Lawsuits that are filed during injuries of accidents can be through intent or what we called willfulness of causing harm or injury with intent. Recklessness and negligence are involved and the strict liability is what a victim can file an injury on. Accident victims have specialized lawyers who would be able to help them get compensation when they file their case to court. With solid evidence, a victim of accident would be taken care of by the law no matter who are involved especially insurance companies. Employees can equally sue their employers if they are victims of work accidents.

Understanding Negligence in Injury Cases

In most accident cases reported, one or more person's negligence forms the basis of the incident. When the victim of such an incident files a lawsuit against the responsible entities, the theory of negligence comes into play. What are the elements in such a case? How do you know who is responsible? How do you establish negligence?
To get answers to these questions, you need to consult an accident attorney specializing in such cases. Let's analyze the elements that come into play in these cases. 

Proximate Cause: Only if the victim, i.e. the plaintiff, can establish that another's negligent action was ‘a proximate cause' for his/her injury, damage recovery is possible. The negligent conduct of the responsible entity, i.e. the defendant, must have a direct connection to the injury. 

Reasonable Care: Any action is deemed negligent only when there is a breach of reasonable care – the standard of care that any other reasonable person would use in similar circumstances. This standard differs only when the responsible entity is a minor (there is no question of negligence if it is a minor below the age of 7 years). 

Negligence: There are four typical tenets in this –

1)    there was a reasonable duty to care
2)    there was a breach to this duty
3)    there was injuries to another
4)    there was a causation relation between the breach and the injuries 
Various legal directives of Florida are applicable in all Miami accident cases. It is essential to get a good Miami accident attorney to work on the case and establish negligence and liability. 

Here are the three statutes that may affect these lawsuits. 

Gross Negligence – where an entity's action, or failure to act, is reckless enough that it shows a lack of concern for anyone else. 

Comparative Negligence – if more than one entity's conduct is responsible for the incident, the victim may sue all. However, each of these entities pays only a percentage of the damages according to their degree of responsibility. 

Contributory Negligence – Florida laws state that if the plaintiff is partly responsible for the incident, the damage recovery decreases according to his/her degree of responsibility. 

If you think that your injuries were a responsibility of another, you need to find a Miami injury law firm immediately. The legal practitioners working there would be able to work on the case to assess negligence and get adequate damage recovery. Their awareness of the laws and the way these affect your case is a requisite for this.

Criminal Negligence - Ignorance Is No Defense

Criminal negligence indicates the lowest level of responsibility or guilt, criminal intention being the highest. Gross negligence and criminal recklessness share the same intermediate level.
What pushes an act over the line from criminal to gross negligence is the fact that the offender COULD foresee the prohibited or criminal consequences of his actions.

Criminal recklessness, on the other hand, indicates the offender knew that he was exposing another person or entity to potential injury. Guilt is determined by the offender's agreeing to run that risk.

Some acts of this crime have more to do with crimes of omission. Guilt is determined by the offender's not foreseeing the results of his actions, allowing otherwise avoidable dangers or consequences to happen.

If the offender deliberately puts himself in a position where he won't be aware of the consequences of his actions, then criminal negligence can turn into willful blindness. Just like willful blindness, "not knowing" is NOT an acceptable defense and the defendant can still be held criminally liable for the results of his actions.

The punishments for this crime vary widely, but incarceration is very common. If the offender is legally declared insane, he may be removed to a state-run facility for treatment purposes.

Criminal Negligence - Common Cases

Criminal negligence also arises from acts that are careless or work that is slipshod. Two common cases of criminal negligence have to do with criminally negligent homicide and negligent child endangerment.

The most controversial cases have to do with slipshod or neglectful healthcare. To prove any 'fault' of any healthcare practitioner (e.g., doctor, nurse, medical technologist, etc.) the plaintiff needs to prove four things: 
1. Duty of Care
2. Breach of Standard Healthcare
3. Loss or Injury
4. Causation (link between an offender's action and the resulting loss/injury)

Criminal Negligence - The Greenpeace Case

Another common application of the crime has to do with the culpability of corporations or organizations for the way they do business or implement policies. Oftentimes, violators are charged with criminal negligence even if the full consequences of their neglectful behavior never occur.

In May 2005, Greenpeace was found guilty of criminal negligence resulting from its anti-logging efforts in Alaska. The criminal action resulted from a Greenpeace ship crossing into Alaskan waters without the necessary paperwork.

Carrying over 70,000 gallons of petroleum products, the ship headed for an Alaskan National Forest for its anti-logging campaign. The state of Alaska has laws that require such vessels to file an oil-spill response/prevention plan at least five days before the vessel enters state waters.

Although Greenpeace didn't file the plan within the given period they quickly corrected the oversight. However, the ship's captain was still convicted on three counts of criminal negligence.

Criminal negligence in Alaska has maximum penalties of 12 months in prison and $10,000 for a person and a fine of $200,000 payable by the offending organization.

Needless to say, the penalties would've been much more severe if an oil spill did take place. But this case clearly shows that even a threat of danger due to 'low-level' negligence can be prosecuted in court.