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Business Law And Ethics Torts Of Negligence

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Business Law And Ethics Torts Of Negligence

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In legal parlance the word ‘negligence’ may be defined as a failure by the defendant to exercise, proper standard of care in a particular circumstances, which any prudent person would have exercised in such similar circumstances (Eades 2015). It is a lawful duty to exercise adequate care in the event when one can foresee that failing to exercise such care would likely cause damages or injury. To bring a legal action against the wrongdoer the aggrieved person must establish the following essentials of negligence: duty of care, breach of duty of care, causation and remoteness of the damage (Deakin, Johnston and Markesinis 2012).
In the given case, Trevor has been negligent as it was his duty to ensure the safety of his tourists. He was supposed to take the tourists back within daylight but he got too involved in his work to bring back the tourists safely. He has committed a breach of his duty to take care. However, Anna was equally negligence in her actions. Despite being aware of the rules and regulations, she did not follow them. In such circumstances, Anna may bring legal action against Trevor for his act of negligence; Trevor may apply the principle of contributory negligence in his defense against such action.
The essential elements of Torts of Negligence are enumerated as below:
First Element: Duty of care
Duty of care is the responsibility of one person towards another not to inflict injury to that person. In law of tort when one person acts recklessly or negligently which in turn causes injury to another person, the person causing such injury is liable to pay damages to the aggrieved person (Mendelson 2014). This essential element has been well established in the case of Donoghue v. Stevenson [1932] AC 562. The Civil Liability Act 2002 provides provisions in the section 5B and 5C of the Act. This landmark case has established the neighbor test. The principle that one should love its neighbor and that one must not hurt or injure its neighbor was put to question in this case. The court explained that a person owes a duty to exercise reasonable care to avert omissions or acts failing which, the person can reasonably anticipate that such act or omission would likely cause damage to his neighbor. 
Did Trevor owe a duty of care towards Anna?
It is a well established law that in order to succeed in a legal suit brought against the defendant for an act of negligence, the plaintiff must prove that the defendant owed to the plaintiff a duty of exercising standard of care to avoid any injury caused to the plaintiff due to the acts of the defendant. In Caparo Industries PIc V Dickman [1990] 2 AC 605 it was held that there must exist a relationship recognized by law as neighbor between the party owing duty of care and the party to whom the duty is owed.
In the present scenario, Anna was one of the tourists who attended one of Trevor’s walks. Here, since Trevor was the tourist guide, it was his responsibility that he maintains all the safety regulations and make sure that the tourists follow the safety rules as well. The neighbor and the caparo test shall be applied to ensure that one must exercise care towards its neighbor.
It is established that there existed a relationship of neighbor between Trevor and Anna and he owed a duty to exercise standard of care to ensure the safety of Anna.
Second Element: Breach of Duty of Care
A person is said to have committed a breach of duty of care if that person fails to exercise the duty of care he owed to the aggrieved person. A person is personally held liable in case of breach if such breach causes injury to the aggrieved person. The court observed the objective test in Bolton v. Stone [1951] AC 850, [1951] 1 All ER 1078 to determine whether there was a breach of duty of care. The court explained that the defendant shall be held liable if he fails to exercise reasonable care which any reasonable person would exercise in similar circumstances. If a prudent person fails to foresee detrimental consequences of his action, then the defendant shall not be considered negligent in taking safety measures (Giliker 2014).
Did Trevor commit a breach of his duty of care?
If the defendant fails to exercise the standard of reasonable care towards the plaintiff which any prudent person would exercise in the same circumstances, the defendant is said to have committed a breach of his duty of care (Little et al. 2014). The defendant must take necessary precautions to avoid any detrimental consequences, he could foresee that is likely to cause damages or injury to the plaintiff (Guay III and Cummins 2013).
Trevor himself asked all the tourists to put on sensible clothes and shoes for the walks and that he would conduct, the walk during daytime as there had been incidents of client injuries in the past during the nighttime walks. He failed to notice that Anna was wearing inappropriate clothing, shoes was carrying drinks. Moreover, he got involved with his work for too long and returned after sunset knowing it was not safe to walk in the midst of the forest in the dark. Trevor was could foresee the probability of risk that could result if the walk was conducted in the dark. He failed to exercise the standard of care he owed to Anna and the tourists. Any reasonable person would have exercised the standard of care in such a situation.
Trevor has committed the breach of his duty of care he owed to Anna.
Third Element: Causation
The plaintiff must establish the fact that the damages suffered by him were the consequence of the defendant’s actions. In Barnett V Chelsea & Kensington Hospital [1969] 1 QB 428, the court introduced the ‘but for’ test to determine if the damage caused was because of the defendant’s breach of duty of care. The test signifies that but for the action of the defendant, would the plaintiff suffered injuries? If the answer is yes, then the defendant is exempted , if no, then he is held liable.
Is Trevor liable for the personal injury caused to Anna?
If the plaintiff proves that the damage suffered by him is a result of the defendant’s breach of his duty of care, then the court shall determine that if the defendant had not committed a breach, would the plaintiff still suffer such damages (Giliker 2014). If it is so, then the defendant is held liable for the damages caused to the plaintiff and if it is not so, then he shall be exempted from such liability (Goudkamp and Ihuoma 2016).
In this case, had Trevor noticed that Anna was not wearing proper clothing and proper shoes; she would not have undergone the injury so caused.
Had Trevor been more cautious and returned during Anna would not have worn heels and sustained knee injury.
Fourth Element:  Remoteness of damages
The plaintiff must establish that the damage caused to him by the defendant as a result of breach is not remote. The court applied the test in the Wagon Mound no 1 [1961] AC 388 that if the damage caused was foreseeable, then the defendant shall be liable for it. If the damage is not predictable then he shall be exempted from the liabilities.
Is the damage caused to Anna remote?
If the damage caused is foreseeable then the defendant shall be held liable for the damage caused by his breach of duty of care. The damage caused must not be remote. It must be the immediate consequence of the defendant’s action (Iacobucci and Trebilcock 2016).
Anna sustained knee injuries as she was wearing heels. If Trevor were more cautious, he would not have let her carry heels. Trevor knew wearing heels would result in injury in the forest.
The injury suffered by Anna was not remote and that Trevor was aware and could predict the risk wearing heels would amount to in the forest.
The doctrine of Contributory Negligence acts as a defense to the defendant in the law of Negligence. This doctrine enables the defendant to defend himself on the ground that the plaintiff is equally responsible for the losses suffered and the injuries sustained by the plaintiff (VanDerhei 2014). The concept of this doctrine has been laid down under section 5R-5 T of the Civil liability Act. The plaintiff may be prevented from recovering damages from the defendant for the injuries sustained (Keating 2015).
In the present scenario, Trevor has committed a breach of the duty of care towards Anna as he failed to notice that Anna was not wearing sensible clothing and shoes as was instructed to wear. Anna was also responsible for the injury sustained as she carried drinks. Although Trevor shall not be fully exempted but the amount of damages shall be relaxed to some extent as per the discretion of the court as stated in the case of Stapley v Gypsum Mines [1953] AC 663.
Anna may be entitled to damages for the injuries sustained for the breach committed by Trevor under section 51 of the Civil Liability Act 2002. Although, Anna has committed contributory negligence by not wearing the instructed clothing and carrying drinks during the walk, Trevor shall not be fully exempted from the liabilities.
Barnett V Chelsea & Kensington Hospital [1969] 1 QB 428
Bolton v. Stone [1951] AC 850, [1951] 1 All ER 1078
Caparo Industries PIc V Dickman [1990] 2 AC 605
Deakin, S. F., Johnston, A., & Markesinis, B. S. (2012). Markesinis and Deakin’s tort law. Oxford University Press.
Donoghue v. Stevenson [1932] AC 562 Eades, R. W. (2015). Torts Involving Personal Property (Vol. 1). Jury Instructions on Damages in Tort Actions.
Giliker, P., 2014. Tort Law and the Legislature: Common Law, Statute and the Dynamics of Legal Change.
Goudkamp, J., & Ihuoma, M. (2016). A Tour of the Tort of Negligence.
Guay III, G. E., & Cummins, R. (2013). Tort Law for Paralegals. Pearson Higher Ed.
Iacobucci, E. M., & Trebilcock, M. J. (2016). An economic analysis of waiver of tort in negligence actions. University of Toronto Law Journal, 66(2), 173-196.
Little, J. W., Lidsky, L. B., O’Connell, S. C., & Lande, R. H. (2014). Torts: Theory and Practice. LexisNexis.
Stapley v Gypsum Mines [1953] AC 663.
VanDerhei, J., 2014. Contributory’Negligence?’The Impact of Future Contributions to Defined Contribution Plans on Retirement Income Adequacy for Gen Xers. EBRI Notes, 35(8).
Wagon Mound no 1 [1961] AC 388

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