Negligence in Tort
Negligence in Tort
Negligence cases have been heard immensely in courts for decades. Particularly, courts are tasked to determine as to whom liabilities rests when harm is done to other people. The subsequent discussion intends to do just that. Specifically, the discussion will cover the case involving the incident that occurred in 15th of August 2006 with Speedy Ho and Katrina. Discussions on his liabilities and possible breach of his duty of care will be analyzed in this paper. Recent decision and seminal legal precedents will also be consulted with regards to the arguments presented below.
II. Definition of Negligence
In common law, the definition of negligence normally constitutes a breach of one’s duty of care to other individuals. To prove as to whether negligence did take place, one have to first establish that the defendant have a duty of care to the claimants. (Macdonald v. Football federation 1999) It is thus up to the courts to determine whether there is a breach on this duty or not. In the case of awarding damages, the courts have to establish as to whether the harm done to the claimants of the case are indeed is a consequence of the breach of the duty held by the defendant. Moreover, the courts have to similarly establish that the consequence is not too remote to the negligence. (Robinson v. Post office 1974) The following discussion will present an analysis on the duty of care of the driver of the car Speedy Ho.
III. Duty of Care
In the said case, there are several people involved and harmed in the accident. The succeeding discussion would try to establish the existence or absence of duty of care by the defendant on the claimants Al Zymer Lo, Clooney Mak, Handy Ma, Kallyana Hui, and Bravo Ng. The discussion will use the criteria established by Caparo v. Dickman 1990 to determine the presence of duty of care in particular cases. Specifically, the discussion will cover areas of forseeability, proximity, or the equitability of imposing or excluding liability.
A. Foreseeability and Proximity
In this criterion, the concept of the reasonable man is taken into consideration. In establishing the foreseeability of the harm, the existence of the duty of care is similarly confirmed. (Bourhill v. Young 1942) In the situation where Al Zymer Lo is involved, he is characterized as driver in the opposing lane of the defendant, thus establishing the proximity in his case with the defendant. With the manner in which Speedy was driving his car, particularly characterized in a “very fast” and “zigzagging” motion along the streets, one could see that Al Zymer Lo was indeed a foreseeable victim. In addition to this, the reckless driving displayed by the defendant provides an actual proof on his breach of his duty to the other users of the road. This is the same with the context of Clooney Mak who was killed because of the accident. Being the passenger of Lo, Mak is also exposed to the same harm imposed by the behavior of Speedy which in the same way establishes the proximity of the physical closeness that they have with each other. This means that the death of Mak is a foreseeable outcome with the way Speedy was driving.
In the case of the pedestrians, the harm that they have incurred is indeed foreseeable. In the same time, their physical closeness in the scene of the accident establishes their proximity with the defendant. Nevertheless, there are certain attributes on the case of Handy Ma and Kallyana Hui that tends to require further explanation. In the case of Hui, she was present in the accident scene, was subject to harm, and incurred injuries as a result of the explosion of the truck driven by Lo. The injury she has acquired was thus a foreseeable consequence of the reckless driving of Speedy. On the other hand, the case of Handy Ma appears to be rather complicated as compared to Hui. The said pedestrian committed suicide because of depression triggered by the injuries he has acquired in the accident. Normally, courts deem that any other additional injury that the claimant has incurred severs the causation link of the defendant. (McKew v Holland, Hannen & Cubitts & Co, 1969) However, the element of depression came into play in the case of Ma. Courts have indicated that the defendant may have some liability if a claimant eventually committed suicide because of depression. However, it must be established that such depression is caused by the negligence of the defendant. (Pigney v. Ponter 1957) Moreover, in this scenario the defendant could not use the novus actus interveniens as a defense. (Reeves v MPC, 1999)
Another casualty in this accident is Bravo Ng. He died in the scene when the wreckage fell on him while he was rescuing the injured. According to the case of Chadwick v. BRB (1967) rescuers like Bravo Ng tend to become a primary victim if he does incur injury. This means that the Speedy is liable to the death of Ng regardless of the unusual physical condition that the latter possess. This essentially is called the eggshell skull rule which was seen in cases like Smith v. Leech Brain & Co. (1962). In any case, the death of Ng still tends to be caused by the negligence of Speedy.
And lastly, being similarly put in harm’s way, Kathrina could also be considered a claimant on this matter. The problem in this matter is that being in a personal relationship with Speedy, she similarly has this duty of care on him particularly in the context of allowing him to drive despite of being inebriated. (Morris v. Murray, 1991) There is a possibility that the courts could deny damages on the part of Kathrina because of this, however she could still claim for compensation based on Nervous Shock. In any case, she could claim that she has suffered from it because of the resulting psychological injury (Hinz v. Berry 1970) or because of the physical injury. (Wilkinson v. Downton 1897) Being with the defendant at the time of the accident, it is apparent that Kathrina was a foreseeable victim in these events.
B. Equitability of Imposing or Excluding Liability
In this section, the criteria of equitability rest on whether the actions of Speedy was indeed the root cause of the harm done in all the claimants. Thus a discussion on the causation in the case is in order. One way of looking at the causation is to impose the “but for” test in the actions of the defendant. (Barnett v. Chelsea hospital 1969) This indicates that the negligence of the individual would have been the sole cause of the harm acquired by the claimants. Seeing the instances in the case, one needs to analyze as to whether the outcomes held by the claimants would have been different had the defendant did something else. In the case of Lo and Mak, they were the ones cruising at the opposite lane where Speedy was driving. Using the “but for” test, it is seen that the negligence that the defendant made was actually drinking and then driving recklessly in a public thoroughfare. If the defendant did not even held the wheel that night or at least has driven in a careful and reasonable manner, the driver of the truck would not have acquired his injuries and the passenger would not have died. This is the same with the other claimants. Thus this means that the negligent act of Speedy was causation in fact.
Moreover, the discussions on the foreseeability of the events that took place after the negligent act was committed indicate that it has satisfied another test as indicated in the case of Re Polems (1921). Specifically, it indicated that the foreseeable damage was actually seen as a direct result of the negligent act of Speedy. In addition, another test has also been established with the discussion of the foreseeability of the damages. It satisfied the Wagon Mound Rule as seen in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (1966). More specifically, the said case that the defendant should have been aware of the risk involved in driving a sports car inebriated. The ensuing reckless driving resulted to the harm incurred by the claimants.
The discussions have indicated that Speedy has been negligent and have breached his duty of care on the persons involved in the accident. Was he a reasonable driver? Driving under the influence of alcohol is the primary indicator of negligence. There are existing laws prohibiting licensed drivers from doing such acts, but in the case of Speedy he still went on and handled the wheel. To make things worse, he showboated for his girlfriend thus aggravating the risk of harm not only to Al Zymer Lo, Clooney Mak, Handy Ma, Kallyana Hui, and Bravo Ng but also to his girlfriend, Kathrina. Courts would not have any trouble finding fault on the part of the defendant.
Issues in agreements tend to arise when communicating such offers and acceptance to the parties involved. This is apparent in the case of Kathryn, Kylie and Mikkola. The following discussions will attempt to resolve the issues facing Kathryn.
II. Invitation to treat, Offer and Acceptance
The case conveys an issue on the point wherein the offer is given and which action is considered an acceptance. First, one must first recognize the nature of the two elements of an agreement. An offer is characterized as the statement of an offeror to bind himself/herself to another entity legally. (Carlill v. Carbolic smoke ball Co 1893) On the other hand, an acceptance is done in order to validate a contract. This means that upon an acceptance, the other party is presumably aware of what is expected from him/her in the contract.
The problem in the case of Kathryn, her first communication to Kylie does not equate to an offer. Specifically, courts have indicated that this type of action is tantamount to an invitation to treat. (Partridge v Crittenden 1968) In the said situation, that conversation with Kylie appeared to be an advertisement of sorts. Kathryn initiated an invitation to negotiate about the price of the video Ipod. In some instances, the other party tends to look to haggle their way to a much lower price. Thus, it is up to Kylie and Mikkola to provide an offer to Kathryn. In a way, the situation then spawned a sort of auction for those who knew of the invitation.
III. Revocation of the Offer
The situation provided that both Mikkola and Kylie have the right to retract their offer before Kathryn accepts any of them. (Payne v Cave 1789) However, assuming that both offerors does not have any intention of revoking it, it is still up to Kathryn whose offer to accept. As stated earlier, the situation wherein the three characters are subjected manifests a case where Kathryn merely indicated a statement of price. (Gibson v Manchester County Council, 1979) This means that the supposed offer is not actually an offer. These cases are similar to instances where storeowners place price tags marked on the merchandise.
In the case presented, it appears that Kathryn have already accepted the offer of Mikkola. This aspect will be discussed further in subsequent part. In this case, the revocation of the offer should be immediately be done by Kathryn. She should communicate it straight away to Kylie that another offer was accepted. In any case, Kathryn is safe from any form of breach given that there has yet to be a completed agreement between offerors. The communication of the revocation would not require Kathryn to say it personally to Kylie, she could ask a reliable third person to communicate the revocation of the offer. (Dickinson v Dodds 1876) Until it is not communicated to Kylie, then the revocation is not effective. (Byrne v Van Tienhoven 1880) On the other hand, Kathryn could just reject the offer of Kylie altogether and accept the offer of Mikkola instead.
IV. Postal Rule and the Use of Telephone or Telex
In the previous part, it has been indicated that it is apparent that Kathryn has already accepted the offer of Mikkola. The case indicated that she already sent a mail to Mikkola confirming the acceptance. This means that the moment Kathryn posted the mail, the agreement is established between she and Mikkola. This is called the postal rule. (Byrne v Van Tienhoven 1880) In this case, the agreement is therefore binding and any deviation from the agreed terms may result to breach.
In the case, Mikkola placed an offer through telephone and left a message on the machine. Common law does not have anything against the communication of the offer through electric communication. This means that whether she used mail or the telephone is irrelevant because they were just tendering an offer to Kathryn. This is similar on the part of Kylie. She sent an offer to Kathryn, not an actual acceptance. Therefore, the postal rule does not apply on her part. The inadequate number of the postal stamps on the correspondence does not have any material contribution to the case of Kylie on the matter.
The case presented a rather tricky situation on the matter of agreement formation. Based on the discussions above, the issue of offer and acceptance is not a simple matter as it appears. Legal precedents have solved the matter, particularly on how to regard invitations to treat and other similarly complicated modes of transactions. The decision is left on the hand of Kathryn. At any rate, Kathryn is safe from any legal action that Kylie could throw at her. What is left to do is inform her that the merchandise has already been sold to another buyer.
comments powered by Disqus