The formal position in Australia is rather different. The high court in Sullivan v Moody (2001) rejected the Caparo approach on the ground that neither proximity nor fairness had the necessary precision to serve as practical tests and that the latter was capable of being misunderstood as an invitation to formulate policy rather than to search for principle. Discuss.
The word tort is derived from the Latin word ‘torquere’ which implies twisted or wrong. A tort can be defined as the legal wrong for which the remedy is provided by law. It is a civil action undertaken by one citizen against another and tried in a court. The law of tort derives from a combination of common law principles appearing from case law and legislative enactments. Tort law can be differentiated from the action of breach of contract simply on the basis that tort action is not dependent on any agreement between lawsuits and the parties. English tort laws are also distinguished from criminal wrongs.
There are three significant elements which must be established in every tort action. Firstly, it is essential for the plaintiff to prove that the defendant was under a legal duty to act in a specific manner. Secondly, the plaintiff is required to explain that the defendant breached his duty by failing to imitate his or her behaviour accordingly.Thirdly, the plaintiff must establish that he had suffered injury or loss due to the breach of the defendant.
No separate legal action in tort is recognized by the English Common Law. The law of tort has four major aims. At first, it aims in compensating the victims for injuries. Then, it aims to transfer the cost of such injuries to the person who is legally responsible for such a situation. Thirdly, it has the aim of discouraging injurious, risky and careless behaviour in the future. Fourthly, it seeks vindicate legal rights as well as interest that have been diminished and compromised. Al these objectives perform the function of tort liability which is imposed on the defendant who is charged for intentional wrong doing and negligent activities.
The different types of tort law are as follows:
The tort of negligence is the simplest type tort and the major function is to characterize behaviour that poses unreasonable risks of harm to persons as well as property. The element which is required to be established for the tort of negligence is mentioned below:
- The existence duty of care between the plaintiff and defendant
- A breach of that duty by the defendan.
- Injury or loss suffered by the plaintiff due to the breach of the plaintiff.
Apart from these facts, three important factors should be taken into account while establishing duty of care. These three factors include that the plaintiff and the defendant were in a relationship of proximity, the harm was not foreseeable and it is reasonable to impose liability on the defendant.
The concept of Novus ActusIntervenies highlights the fact that the action of the third party will intervene between the actual action or omission and the damage that is generated as a outcome. This is often regarded to be a general defense to the law of tort and particularly the tort of negligence.
People has the right to enjoy the quietness of their own land and if anyone should interfere with that be it through being noisy, creating bad smell or polluting the land then they are liable to be sued by the property owner under the nuisance of tort law.
Intentional tort act which are reasonably foreseeable to cause harm to someone and have caused harm to someone are covered by intentional tort law. These include the tort against the person such as false imprisonment, intentional infliction of emotional distress, assault and fraud. The intentional interference with someone’s property covers the property related torts such as trespassing one’s land with an intention to damage it.
Successful plaintiffs in tort law cases will usually be awarded compensation in damages or money. However, in case of continuing tort or tort which is merely threatened, the court may grant an injunction to prevent future harm.
Vicariously liability is regarded as a doctrine of English tort law that imposes strict liability on the employers for the wrong doings of their employees. Once, it is proved that the sufficient relationship of the employee exists, it is necessary that any tort to be committed in the course of employment. As with distinguishing an employer and employee relationship, there is one test which adequately establishes that for which acts the employers are responsible and liable for. A preferred was implemented by John William Salmond about hundred years ago that highlights the fact that an employer will be held liable for either a wrongful act they have authorized or a wrongful and unauthorized mode of an action which was authorized.
In the case of Sullivan v Moody, the plaintiff is a father of a young girl. The daughter revealed something to her mother and her grandmother that lead the mother of the plaintiff’s wife to get into contact with the Crisis Care branch of the Department of Community Welfare.The mother or the wife of the plaintiff was further referred by the Department to the Adelaide Children’s Hospital which further referred the mother to the Sexual Assault Referral Centre at the Queen Elizabeth Hospital. In this case, it was found that the first defendant was a medical practitioner who was an employee of Sexual Assault Referral centre. The first defendant had examined the daughter and she revealed what she has found. She found that the daughter has suffered sexual abuse. On the other hand, the second and also the third defendant who are the social workers and the second defendant was the employee of Sexual Assault Referral centre and the third defendant was the employee of Adelaide Children’s Hospital respectively. In this situation, the plaintiff or the father of the young girl was not sure whether the employer of the first and the second defendant was the Queen Elizabeth Hospital or the State of South Australia.
In this case, for the relevant purposes the medical practitioner and the two social workers were claimed that they were found to have acted negligently in examining the child properly and misleadingly mentioned that the girl would have probably been have undergone sexual abuse. They alleged that the father may have abused the daughter sexually. As per the case, there were no such allegations put but on the other hand the allegations which were put by the defendants such as the medical practitioner and the two social workers on the plaintiff or the father of the young girl was believed by the plaintiff’s wife and so this on the other hand led to the breakdown of their marriage which was further taken to the Family court proceeding. Although the case was soon resolved, but the court went in the favor of the plaintiff and the case was closed.
As per the case, the defendants, the first defendant was the employee of was a medical practitioner who was an employee of Sexual Assault Referral centre, the second defendant was the employee of Sexual Assault Referral centre and the third defendant was the employee of Adelaide Children’s Hospital is declared to have owed a duty to the plaintiff to must have implemented a reasonable care in the conduct of the investigation of the claims or the allegations of sexual abuse of the daughter. In this case, the authority under which the employees work would be held liable for the negligence performed by the employees. This is because authority such as the Queen Elizabeth Hospital and the State of South Australia would be held as vicariously liable for the first and the second defendant as they are the authorities of which the defendants are liable. In this case, the Adelaide Children’s Hospital or the alternatively the state is said to be vicariously liable for the negligence of the third defendant.
It was also observed in the case, that the defendants or the appellants attempted to avoid the situation of potential duty and liability is unconvincing and they kept their opinion that the father was the suspect. They wanted to limit the matter to the parents only. But if the thing exists then the question clearly arises as why it should have been limited to the parents. In this case, if the daughter or the young girl were a relative other than the parents, or she may be a school teacher, or she can be a neighbour or a stranger then why in this situation that person be in a position different from that of a parent. As per the logical consequence of the appellant’s argument must be that a duty of care is owed to anyone who is, or who might become, a suspect.
The State of South Australia is also claimed that they should have to owe the plaintiff a duty of care to exercise reasonable care in the ways in which the investigations of the allegations of the sexual abuse of the daughter took place. In this case, the claims through the manner of its employees and the other officers of the Department of Community Welfare to have been negligent as they are held to be vicariously liable for the employees of the authorities are under their responsibility so as they were negligent the higher authorities are considered as liable to the plaintiff. This was similar to the case of Thompson where the officers of the Department were considered as negligent. It was also found that the plaintiff had undergone a tremendous shock, distress, psychiatric injury and consequential personal and also financial loss. The court found that the case was similar to that of the Thompson and so the matters were argued on the basis of that.
At last a clear and a final point must be kept into consideration. The appellants claimed that in this case the legal rights of anybody were not damaged. It has been observed that if anybody is found to have rejected the difference between the parents and others then they cannot be able to point to any relationship, or the connection, or the association, between themselves and the respondents other than the fact that if the case arises that the children who are being abused, the appellants would be considered as the first or the prime suspects. But in this case, that is considered to be merely the specific situations that give rise to the risk of carelessness that causes harm on the part of the respondents. At the end, it was found that the case is based on the foreseeability which is considered to be insufficient. While the decisions were taken the alternative approach in Caparo industries Plc v. Dickman were also considered along with its three stages test of foreseeability, proximity and whether the recognition of the duty would be fair, just or reasonable.
According to the case study it is clear that the plaintiff or the father of the daughter or the child who was found to be sexually abused by the father as reported by the employee of Sexual Assault Referral centre, who was a medical practitioner and the other two defendants were social workers of Sexual Assault Referral centre and Adelaide Children’s Hospital. At the end it is clear that the father was not the one who has breached the law but it was the defendants who were found to have breached the duty of care and negligence. They proved themselves negligent as they have reported to the department on the basis of their mere viewpoint but they were not at all sure regarding the case. They found that the daughter probably have been undergone the sexual abuse but they failed to acquire any valid prove for their statement. As per their report the police was informed and they went to allege the father or the plaintiff for the case. But as there were no valid prove they had to rest the case. But due to this the plaintiff had to suffer huge economic loss and psychiatric harm. Due to the negligence of the defendants the plaintiff had to suffer and it led to cause damage. As this damage has caused to the plaintiff the defendants are liable for the loss and harm that the plaintiff had to suffer. So in this case, the defendants or the authority are liable for the loss or the harm that the plaintiff had to suffer. In this case the negligence and the vicariously liable cases are considered to have undertaken.The case can be said that it is a case of negligence according to the Torts law as the defendant have performed negligently and the case can be said that the employers are vicariously liable because the employees were performing their particular job under the authority of the Hospital and they were employed in the organization so the employers are held vicariously liable for the negligence or the breach of duty of care. In this case, the high court decided to review the case again. But here the proximity had been already rejected by the by the court so the court would not consider the proximity in the case as the conclusion can be derived whose utility is very limited. It was also observed that there was no duty of care pertaining to the father or the plaintiff as the medical practitioner and the other social workers does not owe any duty to the parents. As the medical practitioner they mentioned that the child would have probably been undergone sexual abuse. They are given the authority to undertake any investigation if they find any anticipation. But they did not mention anywhere that they are sure that the patient or the child has actually undergone sexual abuse. On further analysis the judges found that there was no such duty of care owed by the medical practitioner and the social workers to the parent but they owe a duty of care to the child and in this sense the child did not faced any damage.So according to the Tort law the medical practitioners and the social workers are not liable.
The decisions that were taken in the case of Sullivan v Moody will not at all surprise those who have followed the development of the negligence liability in Australia but the decision that was undertaken was considered to be very remarkable one.But the only thing, that must be kept into consideration that the final rejection of proximity accomplishes the dramatic alteration of the position of the court. But the rejection must be appropriate as the rejection by the House of Lords in Caparo of its previous approaches to the duty of care in Anns v Merton London Borough Council.
A valid reason for refusing or denying that duty exists when the obligations that have been aroused are inconsistent. The law when provides the public authorities or other officers with the responsibility of investigation on the public interest or the interest can be of the particular class of person and the law also states that they don’t have any duty to perform duties of other class where obligations can be imposed upon them.So in this case, the medical practitioner and the social workers are not held liable for the damage caused to the plaintiff and hence the Department and the Hospital authority would not be held vicariously liable.
Barraclough, Tort, BMJ 2005, 371-371
Conaghan/Mansell, The wrongs of tort, Pluto Press, London 1999
Cornford, Towards a public law of tort, Ashgate, Aldershot, England 2008
Dias/Markesinis, Tort law, Clarendon Press, Oxford [Oxfordshire] 1984
Edwards/Edwards/Wells/Edwards, Tort law, Delmar Cengage Learning, Clifton Park, NY 2012
Elliott/Quinn, Tort law, Longman, Harlow 2001
Finch, Tort law, Pearson Education, Harlow, England 2007
Geistfeld, Tort law, Wolters Kluwer Law & Business, Austin 2008
Hamson, Tortâ€”Trespass, Nuisance, Negligence, The Cambridge Law Journal 1954, 172
Hedley, Tort, Oxford University Press, Oxford 2006
Magnus/MartiÌÂn-Casals/Boom, Unification of tort law, Kluwer Law International, The Hague 2004
Malik, Tort Law - Negligence - Landlords' Duty of Care to Tenants in Tennessee, SSRN Journal
Markesinis/Deakin/Dias, Tort law, Clarendon Press, Oxford 1994
McBride/Bagshaw, Tort law, Pearson/Longman, Harlow, England 2005
Miller, The practice of tort law
Owen, Philosophical foundations of tort law, Clarendon Press, Oxford 1995
Ripstein, Tort Law in a Liberal State, Journal of Tort Law 2007,
Shearman/Redfield, A treatise on the law of negligence
Turner, Tort law, Hodder Arnold, London 2006
Weinrib, Tort law, New York University Press, New York, NY 1991