Saturday, June 04, 2005 - Lawsuit claims exploding toilet burned man - Jun 3, 2005

*Life imitating Art*

There was a similar episode of this on The Practice. Clear demonstration of how smoking can be highly hazardous to your health.

Anyway, if anyone is interesting in the manner in which courts decide whether your claim succeeds, here is a simplified version.

1. Duty of Care.

Basically as the title suggests, whether there is a relationship between the plaintiff (person suing) and the defendant (person being sued) such that there was a necessity for the defendant to take care of the plaintiff. In most cases it really isn't an issue but there are certain cases where it would appear complicated whether the defendant ought to have taken reasonable care of the plaintiff.

For example, does a social host have a duty to ensure that his drunk visitor is competent to drive. Does it extend to getting him a cab. Basically, is he liable if the visitor gets into a car and gets into an accident? Or what about bars, do they need to limit how much a person SHOULD drink? Originally the answer was no but I THINK that there have been some recent cases that have changed this relationship.

To figure out whether there is a duty of care, there are some factors that need to be considered.
a) What is the relationship between the parties (and does it fall into the traditional categories which the court has imposed a duty of care)?
b) Is it sufficiently 'proximate'?
c) And is it 'fair, just and reasonable' to impose a duty? If all these look vague, that's because they are. A common criticism is that it allows for manipulation of whether a duty exists i.e. an ex-post facto situation. Decide whether you think a duty exist before suitable wording your opinion with the above criteria to substantiate your case.

In fairness, the types of cases that have come up have been very interesting to say the least and that is really where the contentions lie. So for example, is a lifeguard liable to someone who deliberately swims outside of a demarkated safe zone? Yes in Australia but probably logically no elsewhere.

Sometimes it really boils down to public policy whether such a duty should be upheld. The clearest example would be cases where parents were wrongfully stripped of the custody of their child because of false accusations or wrong investigations, or sometimes even slipshod work by employees. But when they tried to sue the Children Service, the House of Lords (highest appellate court in U.K.) decided not to impose a duty of care for they feared that this would hamper the ability of the department to work effectively (for fear of legal liability), that in the course of their aims to protect children, it was better to err on the side of children.

2. Breach of standard of care

Basically, once a duty of care has been established, the question to ask is if the defendant's actions had breached the standard of (reasonable) care imposed on it. The court does not require a perfect standard, but simply a reasonable one, one that everyone is entitled to expect from their fellow beings (and corporations).

And the test they have used on most occasion (and often the first one used) is that of the reasonable person. Transposed to a local context, the care that a person on the Yishun MRT, takes. It should be immediately obvious that this is a terribly fuzzy notion and the reason is that the reasonable person is really nothing more than a legal creation, a useful shorthand for what is the standard expected. And there have been articles lampooning and satirizing this legal standard for it is a really high one. The reasonable man is at times is seemingly perfectly conscientious and never makes mistakes of any sort. (Will find the full quote, it's hillarious)

But sometimes when the defendant is not a person but say a bus company, then the question of what a reasonable bus company is, becomes a real enigma. In such a situation, the court have devised a rule of thumb based upon economic principles of cost-benefit analysis. So crudely put the standard is one where the probability of harm mulitiplied by the cost of this probable harm DOES NOT EXCEED the cost of preventing the harm (with a possible multiplier for social utility). What this equation does is an enunciation of a principle that advocates the prevention of economically wasteful preventive behavior. So if a fall by a supermarket shopper (where the probability X harm = $300) can be prevented by hiring a cleaner ($200), the court would be inclined to find that the standard has been breached, but if it could only have been prevented with multiple cameras and 24h guards monitoring them ($3000) then the court would probably rule the other way.

Note, this is a very crude rule of thumb and there has been more sophisticated economic models used based on things like least-cost avoider etc. Read Posner for more.

3. Causation

Did the defendants actions cause the harm to the plaintiff i.e. 'but-for' the defendant's action would the harm be caused? Mostly straightforward except when more than one person was involved in causing the harm or when it is caused over a period of time by various groups and it is impossible to compartmentalise the harm. So if a further harm was caused that was in a manner related to the original harm caused. So for example, I break a person's leg. Later the person because of his broken leg trips and falls down the stairs breaking his arm. Am I liable? (Yes unless the person has doing something no sensible person should have done)

4. Remoteness

Were the injuries/harm caused by the defendant's action unforeseeable or too remote a possibility. Original case, ship worker dropped a steel beam down a hatch. There was a gas leak and the gas accumulated in the hatch, it ignited and the whole ship sank in the resulting fire. So, it would have been reasonable if there had been a dent but sinking the whole ship was a totally unforeseeable possibility. Anyway, House of Lords found defendant liable for the sinking but this was later changed to reflect the current rules which limited losses.

Note however, it seems that this does not generally apply to personal injuries.

*In other news, Mr Fluffy is busy writing his corronation speech and inviting various head of states to his Ceremony For The Accession To The Imperial Throne*



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