Tort 14 - Breach of Duty of Care 6
Hall v Simons (2000) concerns the immunity enjoyed by an
advocate with regards to legal proceedings. In the past lawyers, solicitors and
barristers had enjoyed a certain amount of immunity from being held accountable
or liable for acts of negligence during a trial. The court in the case held
that the immunity that was once conferred on members of the legal profession
with regards to advocacy was no longer valid and that it was in the interest of
the public to revoke that immunity. Members of the legal profession are now
accountable for their actions in court.
The law has to change with the times and in the present
climate or environment where most people are aware of their rights and
liabilities, it is only fair that lawyers, solicitors and barristers exercise
reasonable care when handling cases.
In Heywood v Wellers (1976) for example, the plaintiff was
repeatedly stalked by a former lover and she approached the defendants, a
solicitors’ firm, to take out an injunction against her former lover and stalker.
The defendants negligently failed to do so and as a result the harassment
continued and the plaintiff suffered much distress. The court held that the
plaintiff was entitled to be compensated for the distress that she had suffered
and was accordingly awarded damages.
The legal profession is like any other profession and when
members of other professions are held to be liable for falling below the
acceptable standard of care that is imposed on them, why shouldn’t members of
the legal profession? Duty of care among other things is also a mechanism to
ensure that the services that are rendered comply with acceptable standards.
It is foreseeable, with the advent of technology, that even
the flexibility that is presently conferred upon doctors will soon be narrowed
and its scope reduced especially when it comes to determining if a person
suffers from a specific illness or otherwise and to ensure that the correct
medication is prescribed to remedy the illness.
In Richard Vowles v Evans and Welsh Rugby Union Ltd (2003)
the plaintiff was injured in a rugby match and was paralyzed as a result of the
injuries that he had sustained. The plaintiff sued and the court in line with
the decision in Smoldon v Whitworth (1997) held that the plaintiff was entitled
to claim.
Referees in rugby matches have a duty towards the players to
ensure that the game is played in accordance with the rules regardless of
whether it is played at junior level or at adult level or whether it is played
at the semi-professional level or at the professional level.
The sport in itself is an inherently dangerous sport and the
players depend on the referee to protect their safety by ensuring that the game
is played in accordance with the stipulated rules and when referees fail to
ensure that the rules are adhered to there is a real likelihood that in would
result in some form or injury or other to the players.
As for the defense of volenti; referees in a game that has
not been conducted in accordance with the rules cannot claim that the player
has accepted the risk by participating in the game because the only risk that
any player that participates in a game accepts is the risk of playing in a game
that is conducted in accordance with the rules where the risk of injury is
minimized and not otherwise.
In Simonds v Isle of Wright Council (2003) a 5-year-old was
attending his school sports day that was organized in a playing field. After
finishing the morning activities, the boy picnicked with his mother and the
teachers. Once the picnic was over the mother left him in the care of the
teachers and went to do some shopping. The boy made up his mind to jump on a
swing that was located close to the picnic area, he was the only child to do
so, and as a result he fell down when he was clambering off it and broke his
arm. His mother sued.
The court held that playing fields were not without hazards
and therefore it is fair to assume that parents who allow their children to
play on playing fields or parks do so on the understanding that the child may
incur some small injury or the other while playing. Hence the council that is
responsible for maintaining the playing fields cannot be held liable.
The mother’s omission i.e. leaving the child in the care of
the teachers once the sports day and the picnic was over had broken the chain
of causation and if anything, the teachers were being generous by agreeing to
look after the child when it fact it was no longer their duty or responsibility
to do so. Hence neither the school nor its teachers could be held liable.
In Blake v Galloway (2004) a group of boys were out playing
and after a short time of being by themselves, for some reason or the other,
decided to start throwing sticks at each other and engage in a bout of
horseplay. The plaintiff, a 15-year-old boy, who refused to take part at first
but later changed his mind, threw a stick at the defendant which hit him in the
leg. The defendant responded by picking up the stick and throwing it back at
the plaintiff. The stick hit the plaintiff in the eye and as a result he sustained
serious injury. The plaintiff sued.
The court held that with regards to horseplay, the court
would only arrive at the conclusion that a duty has been breached when the
defendant’s act can be defined as reckless or there has been a very high degree
of carelessness. Merely throwing the stick back, despite the seriousness of the
injury does not amount to recklessness or a very high degree of carelessness.
The defendant was thus found to be not liable.
Copyright © 2019 by Dyarne Ward
and Kathiresan Ramachanderam
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