Duty of Care
It is well settled principle in law that in a negligence action the burden of proving the claim rests is on the plaintiff or the claimant in the case (Boehm, 2003). The court in Grant v Australian Knitting Mills (1936) averred that in a negligence claim it is incumbent upon the plaintiff/claimant to prove three key elements. These are;
- The defendant owed him duty of care
- The defendant has Breach the said duty
- Causation (A causal relationship between the defendant’s actions and the consequences)
- The plaintiff has been injured, suffered loss or damage
It is instructive to note that the parents of the children who drowned and those that were injured will be the claimant/ plaintiffs while the shipbuilders, Captain Hawkeye and First Mate will be the defendants. Therefore, the parents of the children as the plaintiffs suing on behalf of their children will bear the burden of proving the elements of negligence against each defendant.
Typically, the claimant has to show that the defendant in question owed him a duty of care. The concept of duty of care was espoused by Lord Artkin in the landmark ruling of Donoghue v. Stevenson (1932) when he brought to force the neighbor principle. Lord Artkin averred that individuals should always have their neighbors in contemplation when doing something (Keenan, 2004). He defined a neighbor as any individual who may be harmed, injured or suffer loss though one’s actions or omissions. He therefore noted that an individual owes his neighbor(s) a duty of care. The plaintiff must therefore proof that he is a neighbor within the meaning of Lord Aitkin’s neighbor principle and that the defendant in question owed him a duty of care. At the onset it is incumbent upon the plaintiff to prove that a reasonable foreseeable risk of harm existed in the prevailing circumstances (Kings v Philips, 1952). In addition, there must be an identifiable reasonable degree of proximity manifested in relationship between the plaintiff and the defendant (Home Office v Dorset Yacht Club, 1970). In the end, the claimant bears the burden evincing that it is just, fair and equitable to conclude and find that the defendant owe him a duty of care.
The children who boarded the boat can be regarded as neighbors within the meaning of Lord Aitkin’s neighbor principle. This stems from the fact the actions or omissions of the shipbuilders, Captain Hawkeye and First Mate are likely to directly affect them. It can be argued that the Shipbuilders, Captain Hawkeye and First Mate owe the children a duty of care. This is evidenced by the fact that there was a reasonable risk that the children could drown or be injured if proper care was not taken. In addition, there is an identifiable reasonable degree of proximity manifested in relationship between the children and the Shipbuilders, Captain Hawkeye and First Mate because the safety of the children is conditional on their actions. Due to the nature of the service that Shipbuilders, Captain Hawkeye and First Mate render it can be argued that it is just, fair and equitable to conclude that they owe the children a duty of care
It is well settled principle in English Law that an individual will beheld to be in breach of the duty of care if his actions fall below the normal minimum standard that is expected for an ordinary skilled person in similar circumstances (Keenan, 2004). According to the court in Flynn v. O’Reilly (1999) the standard of care is that of an ordinary reasonable skilled person. The test that the plaintiff will apply to advance the contention that the defendant breached the duty of care he owed him is referred to as the reasonable man test. Therefore, the plaintiff’s imperative is to prove that the defendant failed to act in a manner that a reasonable and ordinary person would have acted and that the actions of the defendant fall below the standards that of a body of professional opinion (Bolam v Friern Hospital Management Committee, 1957). In the case of Latimer v AEC Ltd (1953) took to the view that an individual will be held to have breached the duty of care if he fails to foresee reasonable foreseeable risks that are likely to have devastating consequences on others.
Breach of Duty
It is apparent that the Shipbuilders were aware of their duty of care towards Captain Hawkeye. This is evidenced by the fact the previous day before the children board the boat that they had Captain Hawkeye to take the boat for urgent repair. Ideally, the any ordinary reasonable ship builder would have acted in the same way as a measure of promoting safety. In this case the ship builders cannot be held to have breached the duty of care.
As the owner of the boat, Captain Hawkeye’s actions fall below the normal minimum standard that is expected for an ordinary person in similar circumstances. An ordinary reasonable person who owns a boat would not have declined or failed to take a boat that needs repair to the shipbuilders for urgent fixing. It can be argued that Captain Hawkeye has breached the duty of care. In addition, due to the boat’s technical issues that were in fact known to Captain Hawkeye there were reasonable foreseeable risks that he failed to foresee he can be held to have breached the duty of care.
First Mate was acting under the instructions of, Captain Hawkeye who is his boss. An ordinary person working as an employee in a similar capacity and environment as First Mate would not have known that the boat had developed technical issues. In addition, First Mate steered the ship according the expected standard like an ordinary reasonable person would do. However, First Mate had obligation to ensure that all children had put on their life vests as instructed. Since the boat passengers were possibly minors, First Mate ought to personally inspect that all the children had put their life vests on. It can be argued that an ordinary reasonable person working in First Mate’s capacity would have ensured that all children had put on their life vests as instructed. Stemming from this failure it can be argued that First Mate can be held to have breached the duty of care.
Factual causation is determined by the ‘But for Test’. The ‘But for Test’ was applied by the court in Barnett v Chelsea & Kensington Hospital (1968) where it held that one must seek to established whether the ‘But for the actions or omissions of the defendant, the claimant would have been injured or suffered loss?.’ If the response is negative (No), it implies that the defendant was the cause of the harm, loss or damage that the plaintiff has suffered. In essence, the plaintiff must prove that he was only injured or suffered loss and damage due to the defendant’s actions.
The shipbuilders had offered to repair the sheep but their concern was disregarded by Captain Hawkeye. The shipbuilder’s willingness to repair the boat is a cause of the injuries and damage suffered by the children.
If a question is posed, But for Captain Hawkeye’s failure to take the boat for repair, the children would have been injured or suffered loss? The response is no. This implies that Captain Hawkeye’s failure to take the boat for repair is a factual cause of the injury and damage suffered by the children.
Causation
If a question is posed, But for First Mate’s failure to ensure that all children had put on their life vests as instructed, the children would have been injured or suffered loss? The response is no. This implies that. First Mate’s failure to ensure that all children had put on their life vests as instructed, is a factual cause of the injury and damage suffered by the children.
The imperial rule to proof and recover damages for lo or harm suffered the plaintiff must prove that there is a proximity cause between the harm, injury or loss suffered and the wrongful action of the defendant. According to Haley v London Electricity Board (1965) it was held that mere proof of foreseeability of damage, harm or loss is not sufficient, the plaintiff must also proof actual damage or loss suffered. In Paris v Stepney Borough Council (1951) the court held the damages evinced by the plaintiff must not be overly remote that it will be a waste of the courts time to entertain the plaintiff’s issues.
The parents of the children in this case who act as the plaintiffs can proof damage from the injuries that have been sustained by their children. Suffice to say, a proximity cause is evident between the injury and damage suffered by the children and Captain Hawkeye’s and First Mate’s negligent actions.
Pursuant to section 4(1) Occupiers Liability Act 1995 the owner of a premises has duty to ensure that visitors who visit the premises for recreational purposes are not exposed to any danger that is likely to injure them. Section 4(2) Occupiers Liability Act 1995 provides that in determining the owner of a premise has acted negligently and recklessly has to establish if the occupier has reasonable grounds to believe that there as a risk of danger in the premises, whether any person was likely to be harmed or injured while on the premises, whether the occupier had an obligation to offer any protection to any person on nth premises incase of any danger, whether the occupier had an obligation to avert any risk of danger.
According to Section 4(2) Occupiers Liability Act 1995 it can be argued that Captain Hawkeye failed in his obligations to ensure that the visitors were not harmed. This stems from the fact that he did no ensure that his employee First Mate ensures that all the children put on their life vests on. In addition, Captain Hawkeye had reasonable grounds to believe that the ship was not in a good state of repair. Captain Hawkeye also failed to ensure that the risk of harm to persons using the premises was averted by surrendering the ship to he shipbuilders for maintenance and repair.
The defendant in a negligence action can argue as a defense that he did all that was reasonably practicable to remove the risk. Further, he may also argue that he reduced the risk to as low as is reasonably practicable. In Chester v Afshar (2004) the court held that a defendant would not be liable for negligence if he warn the plaintiff of the impending risk but the plaintiff did not take heed of the advise. The court further held that the defendant will not be liable or negligence if found that although he failed to warn the plaintiff of the risk, the plaintiff would have proceeded to act in the manner he did even if details about the risk were brought to his attention.
Captain Hawkeye cannot defend himself by arguing that he did all that was reasonably practicable to remove the risk. This is because he was aware that the boat was in urgent of need of repair but he filed to act.
First Mate can defend himself by contending that he did all that was reasonably practicable to remove the risk. He can say that at first instance all the children had put on their vest but along the way some naughty children removed their vests. He can also contend that he gave the children sufficient warning.
This literal meaning of this Latin expression is that a person who is willing to be harmed cannot argue that he has been injured. It is a common law principle that may used as a defense by a defendant in a negligence action to advance the view that the plaintiff placed himself in a position where was likely harmed or injured. In addition, the defendant may also argue that the plaintiff was aware of the degree of risk that was involved but he did not take account o his own personal safety. Under English Law a defendant claim of negligence will successful escape full liability if he defends himself by arguing that;
- The plaintiff had knowledge of the nature and magnitude of the risk in the circumstances
- The plaintiff, through his apparent ignorant actions about the impending possible risk, waived his right to claim of any damages. In addition the defendant must prove that the plaintiff consent to be harmed was given freely and voluntarily.
Captain Hawkeye cannot be successful in using this defense because knowingly failed to take the boat for urgent repairs. Captain Hawkeye brought the injury to the children. However, First Mate can argue that since some children opted not to put the life vests despite several warning of the risks involved the children that drowned and those were injured freely and voluntarily consented to be injured. This is attributed to the fact that First Mate made all the children aware of all the risk involved.
This defense is applied by the defendant to accept part liability for the injury or damage that has been suffered by the plaintiff (O’Leary v. O’Connell, 1968). What is more is that the defendant’s primary contention is that the plaintiff was partly to blame for the injury or damage that he has suffered. In essence the defendant suggests that the plaintiff also contributed to the negligence. For the defendant successfully prove contributory negligence on the part of the plaintiff, the burden rests on him to prove all the elements of negligence as was done by plaintiff. In contributory negligence the burden of proof shifts from the plaintiff to the defendant. In this sense, the defendant must prove that the plaintiff owed himself a duty of care, he breached the duty, the consequences of his actions caused the injury he has suffered (Sinnott v Quinnsworth, 1984). It is worth noting that this defense does not completely exonerate the defendant from liability. If the plaintiff is also found to be negligent, liability will be shared between the plaintiff and the defendant according to the amount of contribution to the risk.
This defense can be applied by Captain Hawkeye by admitting liability for allowing the children to sail in a boat that is not seaworthy. However, he can also argue that the children owed themselves a duty of care and it was prudent for them to put the life vests. He can add that, if the children had put on their life vests the damage or injury would not have been severe. The children owed themselves a duty of care of ensuring that they adhere to safety measures hen travelling at sea.
Conclusion
It can be concluded that the parents of the children will not be able to successfully prove elements of negligence against the shipbuilders. Although, they are likely to prove all the elements of negligence against First Mate, he is likely to successfully fully escape liability by using the ‘volentis non fit injuria’ defense. Captain Hawkeye and the children are likely to be held contributory negligent.
References
Boehm, T. R. (2003). A Tangled Webb-Reexamining the Role of Duty in Indiana Negligence Actions. Ind. L. Rev., 37, 1.
Bolam v Friern Hospital Management Committee (1957) 1 WLR 582
Bolton v Stone[1951] A.C. 850
Capital v Hampshire County Council (1997) QB 1004
Chester v Afshar [2004] 3 WLR 927
Donoghue v. Stevenson (1932) UKHL 100
Flynn v. O’Reilly (1999)
Grant v Australian Knitting Mills (1936 ) A.C. 562
Haley v London Electricity Board [1965] AC 778
Home Office v Dorset Yacht Club (1970) AC 1004
Keenan, Á. (2004). Essentials of Irish business law. Gill and Macmillan.
King v. Phillips, [1952] 2 All E.R. 459
Latimer v AEC Ltd [1953] AC 643
Livingstone V Raywards Coal Co (1880) 5 App Cas 25
Marcroft V Scruttons [1954] 1 Lloyd’s Rep 395
Occupiers Liability Act 1995
O’Leary v. O’Connell [1968] I.R. 149
Paris v Stepney Borough Council [1951] AC 367
Sinnott v Quinnsworth [1984] ILRM 523