Introduction Both part A and part B are related to tort law

Both part A and part B are related to tort law. Tort according to Mac Donnell (2015, p.39) is a civil wrong that occur leading to a breach of rights in obligations in particular situations and when these rights are broken the injured party can bring an action in tort for the breach in the duty of care owed to them.
Part A
Civil law is associated with private matters between two parties, generally not involving the State, where one believes the other has caused loss or injury. A civil case is often pursued by the injured party (plaintiff) to get compensation from the defendant. When in court the burden of proof passes from one party to the other and the judge makes a decision on whose evidence is more credible on the balance of probabilities. When the decision has been made the judge will decide what remedies or penalties should be given, a plaintiff can receive damages or an injunction against the defendant. An injunction makes the defendant do something/stop doing something e.g. stops them trespassing on the plaintiff’s land, if they continue the behaviour they are in contempt of court. Damages are compensation in the form of money.
Criminal law is public law that is normally brought to court by the State after the Gardaí and DPP (Director of Public Prosecutions) make the decision to prosecute. In these types of cases the parties are not known as the plaintiff and defendant but rather the prosecution and defence. The prosecution has to prove beyond reasonable doubt that the defence is guilty. In a civil case the main objective is to receive compensation but in a criminal case the aim is to punish anyone that breaches the standards of a society. These punishments can occur in several ways these include; imprisonment, fines and community service.
Fred is incorrect in his belief that two different cases cannot arise out of the one incident. He was breaking the law when he was speeding and using his mobile phone, this is a breach in the standards of society. It is vital that everyone follows these standards because they are there to protect the people of the state from behaviour that could cause harm to others, when these standards are broken it can lead to a summons from the Gardaí, as it has for Fred, for this he could be given penalty points, a fine or imprisonment. In this case it is likely that he will get at least five penalty points and a fine for driving dangerously. He can also be brought to court by Margaret because he caused a loss and injury to her. Margaret would not get any compensation for her loss from the Gardaí summons because it is criminal proceedings, which are in place to punish offenders, so she must take action herself to recover the loss in the civil courts.
There are several previous cases and principals relating to the action that Margaret is taking against Fred. These include; Duty of care, the “neighbour principal” and the Caparo case (1990).
Quill (2014, p. 19) describes duty of care as the legal liability of a defendant to a plaintiff, it is based on a failing in responsibility by the defendant that the plaintiff can benefit from. To find if there is a legal responsibility the first thing to be done is to use the concept of an obligation or duty, this concept mirrors that the defendant to act in a particular way and that liability can only occur if the defendant fails to act in this way. In negligence the duty of care is when it is expected of the defendant to take measures to prevent the plaintiff getting injured. Thuiller et al. (2015, p. 17) explained that for a duty of care to be proven four things must be established; a duty of care between the parties, a breach in the duty of care, damage that was reasonably foreseeable and a link between the breach in the duty of care and the damage that was caused. The duty of care was established in the case of Donoghue v. Stevenson (1932), as well as the duty of care being derived from this case the “neighbour principal” also stemmed from it. Lord Atkin declared that “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” He described a neighbour as “persons who are so closely and directly affected by my act” that they must be considered before an act is carried out. (Mac Donnell, 2015, p. 41)
In the case of Anns v. Merton London Borough Council (1978) Tully (2014 p. 21) explained that the plaintiff gave plans for a building to the defendant local authority for approval. The plaintiff claimed that they were negligent by allowing the building to be built on foundations that were not suitable resulting in the building subsiding causing cracks. From this case there was a two-stage test set to test for a duty of care.
1. Was the harm to the plaintiff foreseeable (the “neighbour principal”)
2. If so, was there any reason why a duty of care should not exist?
After this the case of Caparo Industries plc v. Dickman (1990) the House of Lords believed that a duty of care could be imposed if the new three-step test was satisfied.
1. Relationship proximity,
2. Reasonable foreseeability,
3. Whether in all the circumstances it is fair, just and reasonable to impose a duty of care. (Mac Donnell, 2015, p. 42)
Following the three-step test above it is possible for Margaret to sue Fred for negligent driving, Murphy (2007, p. 35) explains that proximity and foreseeability could be thought of as being interdependent by using a simple road user example. As a driver a duty of care is owed to other road users and that it is easy to predict that careless driving by X could cause harmful consequences to the innocent driver Y, who happened to be in X’s vicinity. What makes it foreseeable is the fact that Y was on the same part of the road as X when he was driving carelessly. By Y being in X’s proximity it is a determinant of his foreseeability. Murphy (2007, pp. 42-43) expressed because of the Caparo case when it is being considered to be fair, just and reasonable to impose a duty of care, it can be raised to restrict the imposition of a duty of care or that it can also provide a reason why a duty of care ought to be imposed. After the Caparo case, there was duty of care introduced into circumstances that a duty of care had never existed in previously or in situations where a duty had been denied.
By examining the case of Fred and Margaret according to the three-step test, it is clear to see that she was owed a duty of care by Fred, which he breached by driving negligently, but she also had proximity with him by being on the same road. It was foreseeable that his recklessness by speeding and using his phone could lead to damage or injury to Margaret. It is fair, just and reasonable that a duty of care is owed to Margaret. Margaret can sue Fred because she can prove that she was owed a duty of care, it was breached, the three-step test can be proven and by using the “but for” test it is easy to verify that causation is also fulfilled, that if it hadn’t of been for Fred the damage would never have occurred to her car and that the injuries that she sustained would have never of happened. Margaret is entitled to seek damages.
Part B
Tully (2014, p. 15) explained negligence as a breach of the legal duty to take care that then results in damages to the plaintiff. It is the act that a reasonable person would not have done. A reasonable person is someone who is expected to recognise the facts of common experience, they are expected to understand the basic laws of nature physics, etc. but also realise that children are mischievous and curious.
The basis of the tort of negligence is made up of several previous principals and cases, these include; Duty of care, the “neighbour principal” and the Caparo case (1990).
Duty of care was established in the case of Donoghue v Stevenson (1932) by the House of Lords in England. (Mac Donnell, 2015, p. 41) recounted the facts of the case as; Donoghue’s friend bought her a bottle of ginger ale in a café. The contents of the bottle could not be seen as the bottle was opaque. Donoghue had been drinking the ginger ale and as she was nearing the end of the bottle she poured the body of a decomposed snail into her glass, by already drinking some of the ginger ale it resulted in Mrs. Donoghue suffering from gastroenteritis.
As well as the duty of care being derived from this case the “neighbour principal” also stemmed from it. Lord Atkin declared that “you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” He described a neighbour as “persons who are so closely and directly affected by my act” that they must be considered before an act is carried out.
Finally, Caparo Industries plc. V. Dickman (1990) was a recent development in duty of care. The facts of the case according to Quill (2004, pp. 107-108) are that Caparo, the auditors, prepared and certified accounts for a public limited company. The plaintiffs were the existing shareholders who chose a price based on the accounts to take-over the company, which was successful. When they brought it to court they stated that the accounts were misrepresentative of the true value of the company and caused them to pay considerably more than what the company was worth. The House of Lords advocated a new-stage test, the crucial concepts in verifying a duty of care are:
4. Relationship proximity,
5. Reasonable foreseeability,
6. Whether in all the circumstances it is fair, just and reasonable to impose a duty of care. (Mac Donnell, 2015, p. 42)
Following this test, the House of Lords found that Caparo didn’t owe a duty of care to Dickman.
Lauren Cosmetics plc can be held liable in this case as the shop owes every customer a duty of care once they enter the shop and they breached this duty by not putting up warning signs or cleaning the oil up. Following the Caparo case three-step test proximity was proven because Denise was in the shop when the incident occurred, it was foreseeable that if a bottle of perfume, aftershave or natural oil fell from a shelf that it could break and cause an injury if someone slipped on it. It is also fair, just and reasonable to impose a duty of care on Lauren Cosmetics plc as it is in the public’s interest that shops can be held liable for injury to their customers.
Lauren Cosmetics plc are correct in their belief that it was the fault of the other customer and her child, the mother owed the other customers a duty of care under the neighbour principal on behalf of herself and her child. According to McMahon ; Binchy (1990, pp. 296-297) when a parent fails to control their child properly the parent could be held liable for any injuries to others or the child itself. In the case of Curley v. Mannion (1965) a thirteen-year-old girl opened a car door without looking which resulted in a cyclist being injured. Ó Dálaigh C.J. stated in his judgement that while the parent was “not liable for the tort of his child, may be liable if negligent in failing to exercise his control to prevent his child injuring others.” McMahon ; Binchy also reasoned that the age of the child plays a factor in the parents’ responsibility. When a child is very young the parents’ accountability is high and they can not claim that they expected that their child would behave where the child’s lack of experience would not deserve that level of trust. The mother failed to control her child by not stopping them from climbing on the shelf.
However, in the case of Higgins v. Tesco (2016) the other customer was not held liable. Higgins claimed that she went into Tesco in Terenure, Dublin and had been going in the direction of the wine aisle, walking through a queue of customers waiting to use the self-service check-out when she fell over a six-pack of beer that had been left down on the ground by one of the customers waiting to use the self-service check-out. Tesco denied liability for the accident because the beer had only been placed on the floor for a few seconds before the plaintiff had tripped over and that the beer was in bright coloured packaging that Higgins should have seen indicating that she was not looking where she was going. Tesco believed that there was nothing that they could have done that would have prevented the incident.
Judge Groarke stated that is was a common occurrence that customers would leave bags and baskets on the ground for several minutes at a time. He also claimed that because of the layout of the shop the customers entering the shop could be met by customers queuing to pay, in these situations he stated that, when items are left on the floor it can create a hazard to people entering the shop. The store should have provided a defined route for the customers that were paying for their shopping to stop them from leaving goods on the ground. The judge awarded her the maximum that the Circuit Court could award, €60,000, however Judge Groarke found her 20% liable for contributory negligence, thus reducing the damages to €48,000. (Cherfi, 2016)
This case suggested to me even though causation was met by the other customer, “but for” the customer leaving the beer on the floor Higgins would never have fallen, it was still Tesco that was held liable for the damages because they did not have a suitable path for people when going to the checkout. This ruling can be transferred to the case of Lauren Cosmetics plc, even though it was the fault of the young child there could be an argument that perhaps the shelving was incorrectly put together resulting in the child being able to make it collapse, if this is the case then Lauren Cosmetics plc is liable because it was foreseeable that if the shelves were not put in correctly then it was likely to fall.
Lauren Cosmetics plc can also be liable because they failed to control or protect against acts committed by third parties. Murphy (2007, pp. 39-41) stated that for a positive duty to act to avoid third parties causing harm to another might be justified if there are two conditions met, these conditions are:
1. There must be a special relationship between the defendant and the third party or the plaintiff that requires the defendant to protect the plaintiff from the wrongful acts of the third party.
2. The damage that was done to the plaintiff by the third party was likely to be caused by some failure by the defendant.
Oliver LJ put the two criteria into one question that asked, “in what circumstances is a defendant to be held responsible at common law for the independent act of a third person whom he knows or ought to know may injure his neighbour?”
In the case of Lauren Cosmetics plc there is a special relationship or proximity with Denise, the mother and child as well as anyone else that is in the shop at any given time, but it could be argued that Lauren Cosmetics plc failed in protecting Denise from the actions of the child by not telling the child to stop climbing on the shelves as it was foreseeable that the child would injure themselves or someone close to them by continuing this behaviour. Lauren Cosmetics plc also failed because they did not clean up the spilt oil or broken glass, they also did not put any warning signs around the area. This illustrates that even though it was the child that instigated the cause of the injury Lauren Cosmetics plc are still liable to pay for damages to Denise.
When determining if someone is at fault for negligence it is very important to examine the precedent cases, to ensure that all the tests are met, even before a case is brought to court because it can determine if a case could be case in negligence. It is also possible to estimate how much the plaintiff may receive in damages.