Introduction
Tort is an illegal deed. Torts, both civil and business, are founded on two concepts: wrongs and compensation or damages. Through tort law, a society compensates for those who have sustained injuries or losses because of another person’s illegal act (Miller & Jentz 2009, p.84; Statsky 2010, p.2). Therefore, in a tort case, an individual brings a personal lawsuit against another person or persons in order to procure financial damages (compensation), or other remedy for the injury or loss suffered.
Purpose of Tort Law
Tort law offers damages for the attack of various protected interests. Protected interests include individual physical safety, personal, real property, and certain intangible interests like family relationships, personal privacy, dignity, and reputation (Miller & Jentz 2009, p.84; Harpwood 2008, p.13). Society acknowledges an interest in safeguarding these protected interests.
Damages in Tort Cases
Two types of damages are available in tort actions; that is, punitive damages and compensatory damages. Compensatory damages are meant to reimburse a plaintiff, (the person or group bringing a case against another person or persons/group), for actual losses. It is intended to make the plaintiff well again or put him or her back to the same position s/he would have been had the wrongful act not taken place (Miller & Jentz 2009, p.85). Special damages reimburse “the plaintiff for quantifiable financial losses like costs of renovating or replacing destroyed property, extra costs, lost wages, and employment benefits, medical expenses, and loss of irreplaceable items” (Miller & Jentz 2009, p.85). From time to time, courts grant punitive damages in tort actions with an intention to punish an offender or defendant and discourage others from committing a similar wrongdoing. It is important to note that, punitive damages are suitable only when the defendant’s behavior is particularly in the wrong or egregious (Miller & Jentz 2009, p.85). Therefore, exemplary damages are mainly committed in designed tort cases and only seldom in carelessness tort actions. However, it is noteworthy that punitive damages can be granted in lawsuits involving “gross negligence; that is, to perform a clear duty in an irresponsible disregard of the consequences of such a failure for life or property of another person passes for an intentional failure” (Miller & Jentz 2009, p.86; Walston-Dunham 2008, p.219).
Categorization of Torts
Torts fall in to two major categories: intentional and unintentional torts (Miller & Jentz 2009, p.86). This categorization hinges on the nature of the tort, that is, whether deliberately or carelessly, and the context of the action. Presently, courtesy of advancement of ICT, a tort occurring through the Internet or the so-called cyberspace is at times referred to as cyber torts.
Torts of negligence
A tort of negligence is also referred to as unintentional tort. An unintentional tort “takes place when a person suffers an injury or loss because of another person’s failure to live up to an obligatory duty of care” (Goldman & Sigismond 2010, p.83). on the other hand, in unintentional torts, the tortfeasor does not foreknow the occurrence of the tort. Tortfeasor’s behavior simply brings about a risk of such consequences. It is well to note that, therefore, if an actor’s conduct does not create risk, then, there is no negligence. Furthermore, the risk must be foreseeable; therefore, it must be such that a rational person doing the same activity would foresee the risk and lookout against it (Walston-Dunham 2008, p.219).
Lucy, Caring Hands Agency and Alf Scenario
In this scenario, a tort of negligence can be applied from two perspectives. First, Alf can bring a lawsuit against Caring Hands Agency as the first defendant through Lucy as the second defendant. Alf suffers a broken leg because of Lucy’s negligence acting on her employer’s behalf. Lucy, however, cannot take the legal responsibility because she was an agent acting on behalf of her principal who in this case is her employer. According to Brodie (2010, p.112), by giving an employee a right to insurance from the employer, the employee’s exposure to legal responsibility is taken away, apart from where the employer is insolvent. In other words, enterprise or business’ liability provides that an employee, who is acting within the span of his or her employment, cannot owe the duty of care. Nevertheless, it is pertinent to note that, this cannot apply to a tort committed by an employee when the behavior resulting into the tort is a gross and intentional misconduct. Secondly, if it did not occur “in the line of, and did not arise out of, the employment of the employee” (Spier 2003, p.146). In this scenario, it important to note that, Alf must prove beyond any reasonable doubt that, first, the defendant, (Caring Hands Agency), owed him a duty of care; second, that the defendant infringed that duty; thirdly, that he sustained a legally recognizable injury and lastly, that defendant’s violation caused his injury (Miller & Jentz 2009, p.95; Goldman & Sigismond 2010, p.83).
Caring Hands Agency owes Alf a duty of care by virtue of being his caregiver with whom the society expects him to live with, in order to make his life in old age bearable. The obligation of care underscores the construct of the tort of negligence. If people live together with others in the society, they can put up with some of the others’ actions and they cannot tolerate some; moreover, some actions are reasonably right while others are wrong, or that some actions are rational and some are not (Miller & Jentz 2009, p.95). Concisely, the concept of duty of care is founded on the principle that individuals and groups are free to operate as they wish provided their actions do not violate other people’s protected interests.
Lucy’s employer is expected to handle Alf with the utmost care especially given his age and unhelpful health status. It was reasonably risky to give Lucy the duty of taking care of a client, whose health conditions are special and sensitive, because she lacked the necessary work experience. Furthermore, her employer did not offer proper guidance and orientation on matters regarding how to deal with elderly people like Alf with special and more demanding needs. In short, another rational employer allocating duty would have foreseen the possibility of the consequences that befell Alf in Lucy’s hands.
Caring Hands Agency violated Alf’s duty, because they failed to take the necessary precautions while allocating duty to Lucy that would have ensured that the possibility of an accident that can make someone suffer an injury were minimized. Therefore, their failure to put in place the necessary protective measures or provide Lucy with the necessary guidance on how to deal with Alf’s case, led to an injury that would not have otherwise occurred. The defendant, therefore, evidently breached the plaintiff’s duty.
Alf sustained a broken leg. In other words, he suffered a physical harm. Alf suffered an injury that is recognizable by the law because tort law is supposed to protect his physical safety, which is one of his many protected interests. The defendant’s breach of Alf’s duty of care was the main cause of the injury. This argument is so because; it was during Lucy’s time of executing her duties on behalf of her employer that, the injury occurred. Otherwise, had Alf been handled with greater care, he would not have sustained a broken leg. Evidently, the first defendant is liable for Alf’s leg injury. Therefore, the court should grant Alf general damages because of the injury sustained, and the pain he experienced. It is pertinent to note that, Lucy is a party to this lawsuit, as a second defendant, because through her, Alf will bring a lawsuit against her employer, Caring Hands Agency, who is the first defendant.
A tort of negligence can also be applied from Lucy’s point of view in this scenario. In other words, Lucy can take a tort action against her employer because of the strains she suffered on her back while trying to lift Alf. A tort of negligence is applicable from her perspective because her employer owes her a duty of care since; the employer is expected to ensure that Lucy is not exposed to work circumstances that are harmful to any of her protected interests, including her physical safety. Apart from work-related circumstances, her employer is supposed to ensure that she is not exposed to any form of circumstance that is harmful to her overall wellbeing, particularly when she is executing her important work duties.
Unfortunately, the defendant, (her employer), did not offer her necessary guidance or on-job training on how to handle different beneficiaries of their services with diverse and special needs like Alf. The defendant, therefore, infringed her duty of care by virtue of making her take up work duties whose professional requirements were beyond her work capacity and experience. The available information shows that, her employer was extremely busy, and did not offer her proper job orientation. After a brief interview, and informing her about her salary, Lucy’s employer gave her a program of work, after which she was supposed to complete. This behavior is tantamount to committing someone to a professional duty that is beyond his or her professional capacity and experience. Evidently, Lucy’s employer failure to offer necessary job guidance created gross risk to Lucy’s execution of work duties.
Lucy suffered a legally recognized injury because tort law is expected to protect her physical well-being, as well as, her other protected interests. Lucy strained her back, while trying to lift Alf who her employer knew was morbidly obese and following a stroke, was not load bearing. In fact, the same back strain later led to her dropping Alf on to the floor, thereby, making Alf suffer a broken leg. In other words, that back injury incapacitated her further, making her unable to handle Alf carefully. The defendant’s violation of her duty was, therefore, the cause of her back injury, since, during execution of her work duties, Lucy strained her back. Otherwise, if her employer had put in place precautionary measures, she would not have sustained the injury. For instance, her employer aught to have provided Lucy with an assistant worker given Alf’s poor health status and obese condition. Moreover, the defendant should have prepared Lucy psychologically in advance by briefing her on Alf’s health status. Regrettably, the defendant took none of such critical and obligatory measures.
The court should grant general damages to reimburse for her suffering and pain, because she clearly strained her back while executing her first most probably unfamiliar work program. It is important to note that, Lucy’s employer must first aggrieve her so that she can then take a tort action against him or her. For example, in the Australian case of Vaughan v Patrick Stevedores, the plaintiff brought a case against his employer with a view to obtain damages for quite rigorous psychiatric injuries, which he alleged to have suffered while crossing a protest line to enter the port where he was employed by the defendant (Brodie 2010, p.114). In the course of the crossings, he was exposed to enormously unfriendly behavior on the parts of the protests. The court of Appeal of New South Wales concluded that, this gave rise to risk of injury for the plaintiff who was asked to carry on doing his job and crossing the unfriendly strike lines. The court argued that it was unavoidable that, if the Patricks sought to bring employees on to the site, it would be at risk of physical and psychological injury (Brodie 2010, p.115). The court thus held that Patricks had no due respect of their worker’s safety because it kept sending them through the unpleasant protest lines. The court, therefore, concluded that, an infringement of duty had arisen.
Conclusion
Tort laws seek to protect given rights that have been violated in one way or another. In Lucy’s case, breach of duty is evident because her employer gave her a program of work to complete without taking her through a thorough job orientation with regard to the form of job she would be doing, and the form of challenges she was bound to encounter. It is thus inevitable that, without a thorough job orientation, she would be at risk of physical and psychological harm. Therefore, she should be compensated. In the same vein, Alf is liable to compensation because he suffered a broken leg in the hands of his caregiver. The case of Lucy, Caring Hands Agency, and Alf presents a tort of negligence and Caring Hands Agency should compensate both Lucy and Alf for the different damages incurred.
References
Brodie, D., (2010). Enterprise Liability and the Common Law. Cambridge: Cambridge University Press.
Goldman, A. J., & Sigismond, W. D., (2010). Business Law: Principles and Practices. New York: Cengage Learning.
Harpwood, V., (2008). Modern Tort Law. London: Taylor & Francis.
Miller, R., Cross, F. B., & Jentz, G. A., (2010). Essentials of the Legal Environment. New York: Cengage Learning.
Miller, R., & Jentz, G. A., (2009). Fundamentals of Business Law: Excerpted Cases. New York: Cengage Learning.
Spier, J, (2003). Unification of tort law: liability for damage caused by others. London: Kluwer Law International.
Statsky, W. P., (2010). Torts: Personal Injury Litigation. London: Cengage Learning.
Walston-Dunham, B., (2008). Introduction to Law. New York: Cengage Learning.