Question 3: Tort

Sami, a youth worker, took a party of teenagers to Roundwood Hill during the October half-term
holiday for a day's nature ramble. Even though Sami assured the teenagers' parents they would
return home immediately after lunch, he decided to take the party to visit an ancient Roman
Tower. Although the visit to the Tower only took 15 minutes, when the party went to come
downhill a thick mist suddenly enveloped the hill. Sami had not reminded the teenagers to take
warm clothes and he had forgotten to bring with him his map and compass.
The temperature dropped rapidly and visibility was very poor but it was not until dusk began to
fall that the teenagers became scared. Some of the teenagers had mobile phones but it was
impossible to obtain a signal on the Hill so they could not raise the alarm. After rambling
aimlessly for some considerable time they took shelter in a clearing on the hill to wait for the
rescue services. Orla, one of the older teenagers, disobeyed Sami's instructions to remain with
the group and decided to find her own way home. Ten minutes after she left they heard a loud
scream. Orla had missed her footing and fallen over the edge of a cliff. She suffered a broken leg.
Meanwhile, when Sami failed to return home at the expected time, his wife contacted the police
and a local search party set off to find the group. As they were searching, Jordan, a member of
the rescue party, heard Orla crying. He decided not to wait for the other members of the rescue
team to join him and he tried to lift Orla single-handedly. They both slipped and Orla suffered
facial injuries a result of the second fall.
On arrival at the local hospital Orla was informed that her face would be severely scarred as a
result of the injuries. Max, the consultant plastic surgeon, advised her of a silicone treatment that
would help to eliminate some of the scarring Orla asked if the treatment had any associated risks
Max said: well, nothing is ever 100 percent safe but you need have no worries about this
treatment. I have used the silicone treatment on many of my patients and it has always been
completely successful. Although Max was not negligent in carrying out the treatment, Orla has
suffered an allergic reaction to the silicone which has left her face permanently scarred.
Discuss the possible rights and liabilities of the parties (if any) in each of the above situations.
Introduction
10

A tort is basically a civil wrong. A civil wrong is an act, intentional or otherwise, the
consequences of which include, but are not limited to damage to life or property, injury to a
person, emotional or mental trauma, and loss in reputation. The injured party is entitled to get
compensation from the party that was responsible for causing the injury.
The objective of the law of torts is to help the injured party receive compensation and legal
remedy in case their civil rights have been violated. Tort law is completely independent of the
law of contracts, and as such, to claim damages under the law of torts, a contractual obligation is
unnecessary.
There are various categories of tort, basically negligence and trespass amongst others.
Negligence essentially means careless conduct. In the legal sense, it concerns injury or damage
caused to a person due to carelessness on the part of someone. By contrast, trespass is a direct
injury to a person, his property or land, committed directly and intentionally by the defendant.
Duty of care
Duty of care is defined as they duty of people to exercise reasonable care when dealing with
others. Reasonable care is defined as the degree of care that a reasonable should, but not
necessarily would, act with, and this is determined by tort law. If such a duty is found to
be breached, a legal liability is imposed upon the tort feasor to compensate the victim for any
losses they incur. Hence, a duty of care arises for Sami as he is the one who had started the
holiday activity. However, where an individual has not created a situation which may cause
harm, no duty of care exists to warn others of dangerous situations or prevent harm occurring to
them; such acts are known as pure omissions, and liability may only arise where a prior special
relationship exists to necessitate them. Thus, being a youth worker, Sami had the responsibility
for all the teenagers to reach home safely after lunch but he failed to do so and they went to visit
an ancient Roman Tower until a thick mist covered the hill.

Negligence

11

The team took shelter in a clearing on the hill to wait for the rescue services. Orla, one of the
older teenagers refuse to comply with Sami to stay with the group and went to find her own way
home. Due to poor visibility, Orla missed her footing and fell over the edge of a cliff. Typically, a
victim cannot hold another liable if the victim has implicitly or explicitly consented to engage in
a risky activity. By this, Sami does not owe Orla duty of care as she was the own cause of her
injury. This is similar to the case of Reeves v Commissioner of Police for the Metropolis (1999).
The case was brought by a widow of a prisoner who had committed suicide while in police
custody. The Court of Appeal stated that police could not be held responsible for the fact that Mr.
Reeves chose to kill himself and the police had no duty of care to prevent him from doing so.
For the moment, on hearing Orla crying, Jordan, a member of the rescue party decided not to
wait for other members of the rescue team and tried to lift Orla single-handedly. Here, Jordan
had engaged himself in a careless and reckless rescue attempt and they both slipped and this
time, Orla suffered facial injuries. Through civil litigation, if an injured person proves that
another person acted negligently to cause their injury, they can recover damages to compensate
for their harm.
The duty of care owed to a rescuer is separate from that owed to those he is rescuing. For
example, Where individuals trespassed onto a railway line, putting themselves in danger, they
were not owed a duty of care; however, the stationmaster who attempted rescue and was fatally
injured was owed a duty of care, as it was foreseeable he would attempt a rescue. Equally, a duty
of care may arise where an individual imperils himself, and a rescuer is injured, despite the
individual clearly owing himself no duty of care.
It has been established at Common law that those who attempt rescue are owed a duty of care by
those who create dangerous situations, in which it is foreseeable rescuers may intervene. This
duty can apply to professional rescuers such as doctors or lifeguards. Max, a consultant plastic
surgeon advised Orla a silicone treatment to reduce some of the scarring as a result of the
injuries. Despite Max had clearly stated that nothing is ever 100 percent safe and he was not
negligent in carrying the treatment, Orla was left with a permanently scarred face due to some
allergic reactions whereas he was expected to perform this task as a reasonably skilled and
competent person.
Liabilities to Orla
12

Jordan and Max can be made liable to Orla for the causing injuries. Orla can claim that she
suffered serious injuries due to Jordans negligence of not waiting for other members of the
rescue team and she may sue the latter in tort. In the case of Attorney- General v PYA Quarries,
the Court described public nuisance as any nuisance which materially affect the reasonable
comfort and convenience of life of a class of her majestys subjects. It is an unlawful act or
omission which endangers the health, safety or comfort of the public. A public nuisance is a
crime as well as a tort. Also she can sue Sami for breach of duty as he was irresponsible of not
bringing with him his mass and compass and finally for forgetting to remind the teenagers to
bring warm clothes as he knew thered be a change in the weather.
So as to succeed in the tort of public nuisance, Orla must show that there has been great damage
to her health. For instance, Orla may argue that she has suffered from an allergy to the silicone
and now she is left with a permanently scarred face. This is an example of personal injury and it
is similar to the case of Donoghue v Stevenson (1932). Mrs Donoghue drank from an opaque
bottle containing a decomposed snail and claimed that it made her ill. She could not sue Mr
Stevenson for breach of contract but sued him for negligence.
Remedies
In case of public nuisance, both civil and criminal remedies are available. Orla has suffered
special damages. Therefore, she can sue Max in tort and claim for damages causing harm to her
health. As such she can also sue Jordan for breach of duty. As in the case of Langley v Dray
(1998), where the claimant was a policeman who was injured in a car crash while chasing the
defendant who was driving a stolen car, the Court of Appeal held that the defendant ought to
have known that he was being pursued and increasing his speed would also cause the claimant to
drive faster and so risk injury.

Action against Orla

For a defendant to be held liable, it must be shown that the particular acts or omissions were the
cause of the loss or damage sustained. Sami can state that Orla has contributed to cause her own
harm through negligent actions and the damages may be reduced or eliminated entirely. The
13

English case Butterfield v Forrester (1809) established this defense. In England, this
"contributory negligence" became a partial defense, but in the United States, any fault by the
victim completely eliminated any damages. This meant that if the plaintiff was 1% at fault, the
victim would lose the entire lawsuit. As such, Sami cannot be held responsible for breach of
duty. As such, if Orla would have been obedient like the other teenagers, she would not have
been in such a state.
Conclusion
The courts may still deny compensation to Orla if the harm was a very remote consequence of
the initial wrong. Orla should have known that she would risk injury in the dark mist. So long as
a type of damage is foreseeable, however, the manner in which it occurred however remote is
of no concern to the courts.

14