EVOLVING TRENDS IN TORT LAW – A NORTH AMERICAN

PERSPECTIVE

Ruwantissa Abeyratne1

1. INTRODUCTION

In most globalized economies, tort law2, which is the branch of law that
provides compensation for injuries to persons and property caused by the act of another, is a
constantly evolving area of the law. This continuous evolution is caused by new and
emerging social and economic activities brought about by technological advancement and
increasing and varied commercial activity. For example, in the aviation industry, the concept
of negligent entrustment of aircraft by a lessor is rapidly becoming entrenched as a separate
head of liability under principles of aviation law. The issue of night curfews in European
airports precluding aircraft from landing before Six in the morning stems from the tort of
nuisance3. Another case in the field of environmental law, concerning a $ 333 million class
action4 which was successfully argued in court against a California utility for polluting the
water supply of a local community, also comes to mind. In the area of hospitality there is
the “hot coffee” paradigm of Macdonald’s fame where two States in the United States went
on for law reform after learning of the true facts of the case 5. Of particular note is a new trend,
in the United States, where classic tort principles are applied to emergent civil wrongs,
particularly in the area of communications. A good example is the arraignment of “spammers”
or unwanted email stalkers. Identity theft over the internet is also dealt with by existing
principles of tort law pertaining to fraud6.

One of the inherent difficulties in dealing with tort law is that it has defied
definition7. However it has two determinants: actual or legal damages caused to the plaintiff
by the act or acts of the defendant8 and the fact that the act of the defendant could be

1
DCL (McGill), Ph.D (Colombo), LL.M (Monash), LL.B (Colombo), FRAeS, Acting Deputy Director,
Air Transport Bureau, International Civil Aviation Organization, Montreal. www.abeyratne.com
2
A ‘tort’is simply the Norman word for ‘wrong’ but ‘torts’ have typically been distinguished from
wrongs identified with contractual relations. Tort law is concerned with civil wrongs not arising from
contracts. See G.E. White, Tort Law in America (1980) XI.
3
The tort of nuisance is caused by an unprivileged interference by a person of another’s enjoyment of
his or her private property, causing discomfort to the latter, and invariably causing the property to
diminish in value. P. B. Stein, The Price of Success: Mitigation and Litigation in Airport Growth,
Journal of Air Law and Commerce, Vol. 57, Winter 1991, at p. 555. See also, R.I.R. Abeyratne,
Aircraft Engine Emissions and Noise, Environmental Policy and Law, Vol.24, No.5; September 1994,
p. 238-250.
4
Adam Cohen et.al, “are Lawyers Running America? Their Lawsuits are Setting Policy on Guns,
Tobacco and now HMOs, Who Elected Them? Time, July 17, 2000 at 22.
5
See State ex. Rel Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d. 451 (Ohio 1999) and
Best v. Taylor Machine Works 689 N.E. 2d. 1057.
6
David L. Wilson, Your Passport Please: Helping to Ferret Out Flakes and Frauds on the Web, Buffalo
News, January 13, 1998 at 7D.
7
William L. Prosser, Handbook of the Law of Torts, 3d. ed. (St. Paul. Minn: West Publishing
Company, 1964) at 1.
8
James Dudley and Edwin Baylies, Addison on Torts, American Ed, Boston: .C, Soule, 1876, at 11.
 2

determined on the basis of fault liability9 or strict liability10. This article particularly focuses
on three topical areas pertaining to the application of tort law in the United States.

2. PATIENTS’ RIGHTS

Medical malpractice, as a compensable head of damages is sustainable when

a member of the medical profession fails to meet generally accepted professional standards of
medical practice which in turn results in injury to a plaintiff. Medical malpractice actions are
based on diverse grounds including non-diagnosis, mis-diagnosis, delay of treatment and
incompetent medical procedures11. Although some decades ago, doctors practicing in rural
areas (country doctors) were treated with more flexibility than sophisticated medical
practitioners practicing in large and developed urban areas, the playing field has now been
levelled in North America to treat all physicians and surgeons including dental surgeons
according to a national standard. Medical malpractice can result from the unprofessional
conduct of a physician causing the defendant mental trauma, to a negligent misdiagnosis of
the defendant’s illness. With regard to the former, a landmark case is Marston v. Minneapolis
Clinic of Psychiatry and Neurology Ltd.12 where a Minnesota jury found a doctor guilty of
deceitful conduct involving sexual advances to a patient which were in violation of State law.
The Minnesota Supreme Court awarded the plaintiff $50,000 in punitive damages. In the field
of misdiagnosis or negligent medical treatment, North American courts have found both
hospitals and individual doctors liable according to the circumstances of the case. In the case
of Darling v. Charles Memorial Community Hospital13, a hospital was found vicariously
liable for the negligence of a nurse who failed to test the defendant for circulation which
caused the surgical amputation of his leg. In a case involving the negligence of a nursing
home, a jury awarded $125,000 compensatory damages and $ 25,000 in punitive damages to a
seventy six year old patient who was catheterized so tightly that he developed gangrene in a
part of his anatomy14.

The North American courts have been influenced by early judicial thinking
and evolving principles of English common law. An example is Bolam v. Friern Hospital
Management Committee15 where McNair J. stated:

9
Fault liability is based on the defendant’s conduct, where the plaintiff proves that the defendant was
guilty of wrongful conduct which is either intentional or negligent. See Philip H. Osborne, The Law of
Torts, Second Edition, Irwin Law: Ontario, 2003 at 24.
10
The distinguishing feature of strict liability is that the plaintiff does not have to prove the guilt of the
defendant of any wrongful or negligent conduct. Mere proof that the defendant caused the plaintiff’s
loss in the manner prescribed is sufficient to impose liability. See Rylands v. Fletcher, (1868), L.R. 3
H.L. 330.
11
Thomas H. Koenig and Michael L. Rustad, In Defence of Tort Law, New York University Press:
2005 at 136.
12
329 N.W. 2d. 306 (Minn.1982).
13
211 N.E. 2d. 326 (III.1965).
14
Jacobs v. Murfreesboro Health Care Centre, Inc., No. 13,544 ( Rutherford Cty. Cir. Ct., Tenn., April
8, 1991). In the 1974 case of Helling v. Carey (519 P.2d 981) where the plaintiff suffered from a
condition called primary open angle glaucoma which is a condition of the eye in which there is an
interference in the ease with which nourishing fluids can flow out of the eye, the defendant physician
treated the plaintiff for myopia and prescribed contact lenses. Her condition worsened and after a few
weeks of suffering she consulted another physician who gave a diagnosis contrary to that of the first
physician. . The plaintiff sued for misdiagnosis and negligence, alleging that had the physician she
consulted first ordered a simple test for glaucoma, her condition would not have worsened. The court held
that, as a matter of law, the reasonable standard that should have been followed under the undisputed
facts of the case was the timely giving of the simple, harmless pressure test to the plaintiff and that, in
failing to do so, the defendant was negligent. The plaintiff was anyway suffering primary open angle
glaucoma and the misdiagnosis did not change her fate.
15
(1957) 2 All.E.R. 118.
 3

A doctor is not guilty of negligence if he acted in accordance with a practice

accepted as proper by a responsible body of medical men skilled in that
particular art16.

The standard employed in the Bolam case was that of the “ordinarily skilled man exercising and
professing to have a particular skill”. The House of Lords in the 1988 case of Whitehouse
v.Jordan17 rejected the idea that mere errors of judgments cannot amount to negligence. Lord
Fraser observed:

Merely to describe something as an error of judgment tells us nothing about

whether it is negligent or not. The true position is that an error of judgment
may, or may not, be negligent; it depends on the nature of the error. If it is
one that would not have been made by a reasonable competent professional
man professing to have the standard and type of skill that the defendant held
himself out as having, and acting with ordinary care, then it is negligent18.

Based on this approach some jurisdictions in the United States have made it burdensome for
plaintiffs to recover for medical malpractice unless there is cogent evidence. For instance, in
the State of Massachusetts, an arbitral tribunal comprising a judge, a physician and an attorney
must prima facie find sufficient basis for a claim before a plaintiff can proceed with a
malpractice suit in court19. There are several other States in the United States which have
enacted restrictive tort reform laws concerning medical malpractice20.

3. GENDER JUSTICE

Simply put, gender discrimination is discrimination based on gender. This is

considered a form of prejudice and is now illegal in most countries. There are cultural and
historical overtones of gender discrimination against women which could be attributable to
the entrenched culture of differentiation, spanning several centuries. For example, Professor
Alan Dershowitz, in his book Rights from Wrongs21 cites the instance of the United States
Supreme Court in 1873 denying a woman the right to be admitted to the bar. The Supreme
Court relied on the divine concept of natural law and stated : “God designed the sexes to
occupy defined spheres of action” and it belonged to men to define and apply the law”. The
Court went on to say that a woman’s divine and assigned role was in the domestic sphere

At the outset of a new millennium, jurists are recognizing a new tort called
“the tort of outrage” which is performed by a person on another in flagrant violation of an
entrenched right. Among torts of outrage are violation of patients’ rights, violation of the
rights of elders in homes, tobacco injuries and gender discriminatory violations against
women. One of the violations against women is the online stalking by males. In 2006 The
National Institute of Justice in the United States found 1.4 million American stalking victims
per year over the past five years. It also found that 8 percent of the US women population
would be stalked annually, as against 2 percent of men. In one instance recorded, a woman
was systematically harassed over the internet continuously for a six month period.

16
Id. 122.
17
[1981] 1 All E.R. 267.
18
Id. at 276.
19
M.G.L.A ch. 231 Section 60B (2000).
20
See generally, Michael Rustad and Thomas Koenig, Reconceptualising Punitive Damages in Medical
Malpractice: Targeting Amoral Corporations, not Moral Monsters, 47 Rutgers Law Review 1995, at
975.
21
Alan Dershowitz, Rights from Wrongs – A Secular Theory of the Origins of Rights, Basic Books:
New York, 2004 at 1-11.
 4

Socially, sexual differences have been used to justify societies in which one
sex or the other has been restricted to significantly inferior and secondary roles. While there
are non-physical differences between men and women, there is little agreement as to what
those differences are. The closest to understanding gender differences has been feminist
theory which aims to understand the nature of inequality and focuses on gender politics,
power relations and sexuality. While generally providing a critique of social relations, much
of feminist theory also focuses on analyzing gender inequality and the promotion of women's
rights, interests, and issues. Themes explored in feminism include discrimination.

Article 7 of the United Nations Charter states that all are equal before the law
and are entitled without any discrimination, to equal protection of the law. Article 23 (2) of
the Charter provides that everyone has a right, without discrimination, to equal pay for equal
work. Based on this reasoning, gender discrimination is any action that grants or denies
opportunities, privileges, or rewards to a person just on the basis of their sex.

Discrimination based on gender is often based on the gender stereotypes

promoted by a particular society. For instance, it is reported that in the United States media,
men are often depicted as physically stronger than women, while women are depicted as
being physically weaker, more emotional and more sensitive than men.

Conclusions reached by the United Nations on women’s’ studies reveal that

women often experience a "glass ceiling" and that there are very few, if any, societies in
which women enjoy the same opportunities as men. The term 'glass ceiling' describes the
process by which women are barred from promotion by means of an invisible barrier. In the
United States the Glass Ceiling Commission has stated that between 95 and 97 per cent of
senior managers in the country's biggest corporations are men.

The United Nations also records that in all societies, in varying degrees,
women and girls are subjected to physical, sexual and psychological abuse that cuts across
income, class and culture, creating serious obstacles to their right to participate fully in
society. The UN report of the Fourth World Conference in Beijing, September 1995
concluded that violence against women is a serious factor which forces women to a position
of subjugation and subordination compared with men. In the 1993 Declaration on the
Elimination of Violence Against Women, adopted by the United Nations “violence” is defined
as “any act of gender-based violence that results in or is likely to result in physical, sexual or
psychological harm or suffering to women, including threats of such acts, coercion or
arbitrary deprivation of liberty, whether occurring in public or private life. One of the
Millennium Goals of the United Nations is to eliminate gender disparity in primary and
secondary education preferably by 2005, and at all levels by 2015.

Cyber stalking and e-mail harassment have a tendency of being gender

linked where the miscreant is male and the victim is female. Most torts of outrage in the
courts have been linked to an ex-husband, spurned lover or distant admirer who uses
anonymity in perpetrating the acts. In the United States, many States have, in recognition of
the proliferation of instances of gender discrimination, enacted legislation. California took
the initiative in 1999 with the enactment of its cyber stalking state. Michigan blazed the trail
in 1996 when it used its general anti-stalking law to convict an email harasser. The United
States Congress in 1999 introduced the Stalking Prevention and Victim Act to strengthen
Federal laws against this rapidly growing form of social misconduct. Following the 1998
New York case of Hitchcock v. Woodside Literary Agency22, where the courts were unable,
due to a technicality, to find the perpetrator of a email assault liable, the New York
legislature passed a law making cyber assault an offence. The case concerned the internet

22
15 F.Supp. 2d. 246 (EDNY 1998).
 5

harassment of a female graduate student by a publishing agency who had demanded excessive
fees from the student to publish her work on the internet.

Gender harassment in the office environment is not an uncommon global

phenomenon, and has pervaded through various jurisdictions around the world. In the
American case of Coniglio v. City of Berwyn23, heard in June 2000, a female city employee
filed a hostile workplace claim as well as an action for the intentional infliction of mental
distress arising out of her supervisor’s habit of viewing pornography on the internet in full
view of her at work. The Court recognized the tort of outrage in this case, but was unable to
award compensation to the plaintiff as her action was based on a statute which pre-empted the
tort. However, the tort of outrage could certainly prevail in an adjudication where the action
questioned is based on an independent tort.

The Women's Educational Equity Act (WEAA) is one of the several landmark
laws passed by the United States Congress outlining federal protections against the gender
discrimination of women in education. Introduced in the United States House of
Representatives by Congresswoman Patsy Mink of Hawaii, the legislation was intended to
combat sex-role stereotyping in elementary and secondary schools primarily.

Legislation to promote gender equality is generally complex and varied, with

a wide divergence between different countries. The principal legislation in the UK is found in
the Equal Pay Act of 1970 (which provides for equal pay for comparable work) and the Sex
Discrimination Act of 1975, which makes discrimination against women or men (including
discrimination on the grounds of marital status) illegal in the working situation.

4. BUSINESS ETHICS

The private sector in any society drives the economy by bringing new
opportunities for employment, technology and capital, and paving the way for development
and improvement of work conditions and standards of living. At the same time, there could
be companies that violate human rights by employing underage workers (and even children)
and allowing for discrimination against identified groups of employees such as women and
unionized workers. There may even be instances of suppression of independent trade unions
and the failure to provide acceptable safe and healthy working conditions. Some enterprises
could also be adversely affecting society at large and human rights by dumping toxic waste
and generally creating unsanitary conditions in th e environment surrounding them.

One commentator has put forward the view that courts must make directors
and senior officers of companies liable for intentional torts that affect others in the course of
their duties24. A natural corollary to this approach would be to consider the employer as the
insurer of the employee whereby the latter would be compensated for a tort by holding the
directors and officers of a company jointly and severally liable25.

Private companies are powerful anywhere. Gabel and Bruner, in their book
Global Inc,: An Atlas of Multinational Corporations26, say that the three hundred largest
corporations account for more than one quarter of the worlds productive assets. Ninety
million people are employed by trans national corporations (twenty million of whom live in
developing countries). These companies produce twenty five percent of the world’s gross
product and the top one thousand of these companies account for eighty percent of the
world’s industrial output.
23
No 99 C 4475, 2000 WL 967989, at *7-8 (N.D. Ill. June 15, 2000).
24
See Feasby, Corporate Agents Liability in Tort, 199 32 C.B.L.J. 291 at 298.
25
See Proctor v. Seagram, [1925] 2. D.L.R. 1112 at 1114.
26
The New Press: New York 2003 at 34.
 6

Voluntary codes of conduct have been adopted by several industry

associations. However, these codes tend to be highly conceptual and do not lend themselves
to easy application. A recent study conducted in this area suggests that only eighty five
corporations have even mentioned human rights in their company codes. A good starting
point for any business entity that is interested in ensuring human rights in the workplace are
the Norms on the Responsibilities of Trans National Corporations and Other Business
Enterprises with Regard to Human Rights approved by the UN Sub Commission on the
Protection of Human Rights in August 2003. The Norms have five significant attributes that
are relevant, the first being that nothing in the Norms would diminish the primary role of the
State in ensuring human rights of its citizens and the pre-eminent obligation of the
government in that regard. Perhaps the most important contribution of the Norms is to clearly
establish that they apply not only to trans national corporations such as ENRON, Union
Carbide and Worldcom, but also to national companies and local businesses. By this
measure, the Norms ensure that they are applied without discrimination, whilst obviating the
possibility of business entities skilfully seeking exemptions brought to bear by the type of
organization as defined or made open to interpretation. Furthermore, this approach creates a
harmonious balance between all businesses however large or small, while not being too
onerous on small businesses.

The Norms are far reaching and generally encompass the spectrum of human
rights spread out over twenty three paragraphs. They include the right to equality of
opportunity and treatment; the right to security of persons; the rights of workers; the right to
collective bargaining; respect for the rule of law and international and local laws; the right to
a healthy work environment; the right to political and social and cultural rights; and other
civil rights. The Norms are by no means laws in the nature of treaties or other international
legal instruments, but remain as guidelines in the nature of other UN declarations, principles
and standards. The most effective feature of the Norms is its implementation process which
detail five basic implementation procedures. Firstly, the Norms allow companies to adopt
their own internal procedures as best befitting them in terms of application and
implementation; secondly, the Norms require businesses to evaluate their own major activities
in the light of the provisions; third, the Norms require transparency and input from the various
stakeholders; fourth, the Norms call for compensation, reparation or restoration in case of
violations; and finally, the Norms call on the governments to draw up a framework for the
application of the Norms.

The Norms not only involve both governments and companies alike, but they
also encourage legislatures to adopt them as part of domestic law. However, they have been
questioned, particularly by the International Chamber of Commerce (ICC) and the
International Organization of Employers (IOE) on the basis that it is questionable as to
whether companies, as non-State actors, can be brought under human rights standards. This
query goes counter to the work done by the United Nations as well as the fundamental
principle the Universal Declaration of Human Rights cited at the commencement of this
article of. As a compromise, the ICC and IOE have indicated that the Norms will be
acceptable only as voluntary guidelines.

In essence the entire process of ensuring human rights, whatever be the

environment in which they are applied lies in governance. The concept of "governance" is as
old as human civilization. The most simplistic definition of "governance" would be that it is
the process of decision-making and the process by which decisions are implemented (or not
implemented as the case may be). Governance can be categorized into several institutional
bases and used in several contexts such as corporate governance, international governance,
national governance and local governance.
 7

Good governance must be rewarded. Recognition should be given through

“satisfaction surveys” where a direct causal nexus could be drawn between the manner in
which the worker was enabled to reach a level of satisfaction with governance provided.
Positive changes in expectation and results obtained should be weighed against perceived
adequacies of the business entity in the provision of services. Trust in the employer, through
increased levels of health and well being ( which must necessarily include a sense of security
of life, habitation and movement) both from cultural and religious perspectives should be a
primary indicator. The elimination of corruption is a key to good governance, and civil
society, which has been overwhelmingly proactive in building awareness on human rights
issues, has succeeded in persuading the international community of the value for transparency
and honesty in public transactions. Arguably, the most important key to good governance is
benevolence and understanding. A good employer must assure its workforce that it has their
well being at heart and pro actively move towards achieving that goal.

5. NEGLIGENT ENTRUSTMENT

Negligent entrustment – a theory that dates back to the early 19th Century27 -
can, in its simplest form, be exemplified by the case of an owner of a pizza parlour who
entrusts a vehicle for the purpose of delivery of his product to a person who does not possess
a licence of competence to drive, whether or not the owner has knowledge of the absence of
licence28. Liability ensues when the person entrusted with the vehicle causes injury to a third
party29. One commentator identifies negligent entrustment as:

a general theory of recovery under which the plaintiff alleges that the
defendant was negligent in entrusting a dangerous instrumentality to one
incompetent to use it safely, when he know or should have known that the
incompetent would injure a third party30.

The American Second Restatement of Torts provides that one who supplies directly or
through a third person a chattel for the use of another whom the supplier knows or has reason
to know to be likely because of his youth, inexperience or otherwise, to use it in a manner
involving unreasonable risk of physical harm to himself and others whom the supplier should
expect to share in or be endangered by its use, is subject to liability for physical harm
resulting to them31. In the 2007 case of Watrous v. Johnson et.al32 involving a wrongful death
action against the defendant who struck and killed the plaintiff’s wife while she was walking
on the street, the Court of Appeal of Tennessee held that the parents of the defendant could be
held guilty of negligent entrustment if they knew or ought to have known that the defendant’s
use of a car was likely to injure a third party. The court held that even though the parents of
the defendant had only purchased gasoline for the car and provided insurance and
maintenance, there was a prima facie cause of action for the plaintiff on negligent
entrustment. The Court therefore remanded the case to the trail court (which had earlier held
that there was no case against the defendant’s parents) for further hearing.

Foreseeability is a key issue in the determination of negligent entrustment as

a separate head of liability. In the 1931 Minnesota case of Clarine v. Addison33 which

27
Dixon v. Bell, 5 Maule & Selwyn 198, 105 Eng. Rep. 1023 (1816). See also, Mattson v. Minn &
N.W. Ry., 95 Minn 477, 104 N.W. 443 (1905).
28
Woods, Negligent Entrustment: Evaluation of a Frequently Overlooked Source of Additional
Liability 20 Ark L.R. 101 (1966).
29
See Hood v. Dealers Transport Co., 459 F.Supp. 684.
30
Brian J. Todd, Negligent Entrustment of Firearms, Hamline Law Review, Vol. 6 No 2. 1983 at 467.
31
Restatement (Second) of Torts Section 390 (1965). See also, Drysdale on behalf of Strong v. Rogers,
869 P.2d 1(Utah Court of Appeal 1994).
32
Appeal No. 04-04545, Tennessee, November 21, 2007.
33
182 Minn. 310, 234 N.W. 295 (1931).
 8

involved liability of a parent who entrusted a firearm to his nineteen year old son who then
accidentally shot and fatally injured a minor, the plaintiff failed to prove that the defendant
could have foreseen that his son would kill another person with his firearm, given that the son
had not earlier conducted himself with recklessness or irresponsibility34.

Contributory negligence is not a defence against acclaim in negligent

entrustment in the event an entrusteee who is given in charge of a res (or thing) where the
entrustor has violated a statute in so entrusting35. Furthermore, an owner of a vehicle who
knowingly entrusts that vehicle to an incompetent driver is liable for the consequences of
damage in the drivers hands even if there is no statutory provision to that effect36.

One of the fields of transportation that the principles of negligent

entrustment is being applied as a new head of liability is air transport, particularly in relation
to lessors and lessees of aircraft. As the foregoing discussion revealed, it is the State which is
responsible for approving a lease of an aircraft under conditions which are calculated to
ensure that standards of safety are followed. It is also the State of registry of the aircraft that
issues a licence for a person to fly that aircraft 37. However, this by no means exonerates the
lessor from all liability. The lessor could be prima facie liable on two counts: liability for
inadequately licensed and incompetent crew given under a wet lease whose negligent acts
cause an accident38; and liability for an unsafe aircraft given under both a wet lease and a dry
lease. In the United States the lessor under a wet lease is deemed to be the operator39.
However, when it comes to a lease of the aircraft without crew, if the lease is under a
financial lease40, the lease transfers all risks and rights of ownership to the lessee, who would
also take upon himself any liability arising out of negligent entrustment of the aircraft in
question41. Liability under negligent entrustment, be it that of the lessor or lessee, should

34
See also on the same point of foreseeability. Republic Vanguard Insurance Co. v. Buehl, 295 Minn.
327 at 330, 204 N.W. 2d., 426 at 428 (1973).
35
Scott v. Independent School District No 709, 256 N.W. 2d 285(Minn. 1977).
36
Mugleston v. Glaittli 123 Utah 238, 258 P.2d 438 (1953). See also Hanson v. Green, 339 S.W. 2d
381 (Tex. Civ. App.Texacarna 1960), McIntire v. Sellers 311 S.W. 2d 886 (Tex. Civ. Austin 1958),
Rush v. Smitherman, 294 S.W. 2d 873 (Tex. Civ. App. San Antonio 1956), Butler v. Spratling, 237
S.W. 2d 793 (Tex. Civ. App. Fort Worth 1951), Mundy v. Pirie- Slaughter Motor Co. 202 S.W. 2d 331
(Tex. Civ. App. Fort Worth 1947), and Rolins v. Peterson, 813 P.2d 1156 (Utah 1991),
37
Annex 1 to Convention on International Civil Aviation, Tenth Edition, July 2006, Personnel
Licensing, Standard 1.2.1.
38
Article 81(1) of the Civil Aviation Act of 1982 of the United Kingdom provides that where an aircraft
is flown in such a manner as to be the cause of unnecessary danger to any person or property on land or
on water, the pilot or the person in charge of aircraft, and also the owner thereof, unless he proves to
the satisfaction of the court that the aircraft was flown without his actual fault or privity, shall be liable
and on summary conviction to fine not exceeding up to a particular scale or to imprisonment for a term
not exceeding six months or to both. Additionally, Article 55 of the Air Navigation Order of 1995
stipulate that a person shall not recklessly or negligently act in a manner likely to endanger an aircraft
or any person on board. Article 56 provides that a person shall not recklessly or negligently cause or
permit an aircraft to endanger any person or property.
39
United States v. Bradley, 252 F.Supp. 804. See also, B&M Leasing Corp. v. United States, 331 F.2d
592.
40
A finance lease involves the substantial transfer of risks and rewards appurtenant to ownership, from
lessor to lessee; and an operational lease keeps such risks and rewards within the lessor’s scope of legal
status. A finance lease is calculated to amortize the lessor’s capital outlay and provide a profit at the
end of the lease term with the lease payments received from the lessee. An operational lease does not
amortize capital outlay at the end of the term and profits are derived usually after more than one lease
term.
41
Rod Margo, Aircraft leasing: The Airline’s Objectives, Air and Space Law Vol XXI, Number 4/5,
1996., at 166.
 9

usually be concurrent with an act of negligent on the part of the entrustee42. The fundamental
principle under this head of liability is based on the line of argument that one who entrusts his
vehicle to another, knowing that such other is incompetent or having the duty to ascertain
whether the entrustee is competent or not, is negligent and liable for injury 43. The United
Kingdom has legislative provisions with regard to the liability of an owner/operator in the
event of injury caused to third parties by the negligence of a pilot. Article 81(1) of the Civil
Aviation Act of 1982 provides that where an aircraft is flown in such a manner as to be the
cause of unnecessary danger to any person or property on land or on water, the pilot or the
person in charge of aircraft, and also the owner thereof, unless he proves to the satisfaction of
the court that the aircraft was flown without his actual fault or privity, shall be liable and on
summary conviction to fine not exceeding up to a particular scale or to imprisonment for a
term not exceeding six months or to both. At least one jurisdiction in the United States has
held that there is no liability for injury caused to a third party by an entrustee if the person in
ownership or possession of a vehicle had prohibited the entrustee from using a vehicle44.

Substance abuse by technical crew of an aircraft could be a head

of liability under which the aircraft lessor or lessee could be arraigned under negligent
entrustment. The profession of aeronautics, particularly relating to the piloting of aircraft,
remains one of the most responsible, particularly in the context of the many lives that are
entrusted to the airline pilot at any given time. The realization that pilots should be fit and
well to perform their professional duties has gradually evolved, from the initial requirement
of a medical certificate issued according to the standards laid down by ICAO 45 to a ground
breaking concept introduced in 1982 by Cardiologist, Professor Hugh Turnstall-Pedoe,
who ,while working at Ninewalls Hospital in Dundee, suggested that the health of pilots
should be assessed the same way as engines are assessed by engineers 46. One of the measures
suggested was the permanent requirement of having a co-pilot in the cockpit. The hypothesis
submitted in support of this requirement was that if an average flight lasted 60 minutes and
the critical take-off and landing phases are taken as the first and last three minutes of a flight,
having a second pilot reduces the risk of incapacitation of the first pilot causing a fatal
accident by one-thousand fold.

The Corporate Manslaughter and Corporate Homicide Act of 200747,

provides that an organization48 is guilty of an offence if the way in which its activities are
managed or organized causes a person’s death, and amounts to a gross breach of a relevant
duty of care owed by the organization to the deceased49. The Act applies inter alia to a
corporation. The offence is termed “corporate manslaughter”, in so far as it is an offence
under the law of England and Wales or Northern Ireland; and “corporate homicide”, in so far
as it is an offence under the law of Scotland. An organization that is guilty of corporate

42
See See Hood v. Dealers Transport Co., 459 F.Supp. 684. It is also noteworthy that one jurisdiction
in the United States has followed the approach that the lack of a licence of competence per se does not
give rise to liability if the absence of licence was not the proximate cause of the injury. See Laughlin v.
Rose, 200 Va. 127, 104 S.E. 2d 782 (1958) and White v. Edwards Chevrolet Co. 186 Va. 669, 43 S.E.
2d 870 (1947).
43
Department of Water and Power of City of Los Angeles v.Anderson 95 F.2d 577. See also, Cox v.
Dubois, 16 F.Supp. 2d 861, Brantley v. Vaughn, 835 F. Supp. 258.
44
Kilmer v. Wilkinson 742 F. Supp. 192.
45
The International Civil Aviation Organization is the specialized agency of the United Nations
responsible for the regulation of international civil aviation. ICAO has 190 member States.
46 4
Dr. Tony Evans, How Fit is the Pilot, Doctor? Focus on Commercial Aviation Safety, No. 18, Spring 1995 at p.
47
http://www.opsi.gov.uk/acts/acts2007/ukpga_20070019_en_1#pb1-l1g1
48
An organization that is a servant or agent of the Crown is not immune from prosecution. Id. Section
11.
49
Id. Section 1.
 10

manslaughter or corporate homicide is liable on conviction to a fine and the offence of

corporate homicide is indictable only in the High Court of Justiciary50.
The Act provides that the concept of “relevant duty of care”, in relation to an
organization, means: a duty owed to its employees or to other persons working for the
organization or performing services for it; a duty owed as occupier of premises; a duty owed
in connection with the supply by the Organization of goods or services (whether for
consideration or not); and the carrying on by the Organization of any construction or
maintenance operations, the carrying on by the Organization of any other activity on a
commercial basis, or the use or keeping by the Organization of any plant, vehicle or other
thing.51 Section 8 of the Act addresses the issue of “gross breach” and provides that where it
is established that an Organization owed a relevant duty of care to a person, and it falls to the
jury to decide whether there was a gross breach of that duty, the jury must consider whether
the evidence shows that the Organization failed to comply with any health and safety
legislation that relates to the alleged breach, and if so how serious that failure was; how much
of a risk of death it posed. The jury may also consider the extent to which the evidence shows
that there were attitudes, policies, systems or accepted practices within the Organization that
were likely to have encouraged any such failure or to have produced tolerance of it; taking
into consideration any health and safety guidance that relates to the alleged breach. The
provision does not prevent a jury from having regard to any other matters they consider
relevant. For purposes of this provision, “health and safety guidance” means any code,
guidance, manual or similar publication that is concerned with health and safety matters and
is made or issued (under a statutory provision or otherwise) by an authority responsible for
the enforcement of any health and safety legislation.
The possible application of this piece of legislation to air transport is a
reality, given the nature of the air transport product and the operation of aircraft. The
profession of aeronautics, particularly relating to the piloting of aircraft, remains one of the
most responsible, particularly in the context of the many lives that are entrusted to the airline
pilot at any given time. Commercial airline pilots operate in a highly complex environment,
particularly in single pilot operations. The difficulties faced by pilots in the work
environment are compounded by the fact that often inadequate information aggravates the
problem. Pilots rely heavily on their visual and auditory senses while flying, and it is of
paramount importance that accurate information be available to the pilot at all times. Most
importantly, pilots have usually the predilection to complete their given schedule no matter
what, such as competing a flight as planned, meeting schedules, impressing their employees
and pleasing the people they carry. Therefore negligent issues concerning the professional
conduct of a pilot form quintessential elements for a highly esoteric legal debate.

The Act, which introduces a new offence in England, Wales, Northern

Ireland and Scotland, may have some relevance to and bearing on the Helios trial which
opened on 26 February 2009 in Cyprus. The trial pertains to the island’s worst air tragedy,
when 121 people perished on a charter plane that slammed into a Greek hillside nearly four
years ago. According to reports52, At the time of writing, Helios Airways and four airline
officials faced charges of manslaughter and reckless endangerment in one of the most
complex and high-profile cases in the eastern Mediterranean island’s legal history. Plaintiffs,
who are relatives of the dead, have called for criminal action against those deemed
responsible when the Helios Airways Boeing 737-300 ran out of oxygen and crashed outside
Athens in August 2005. It has also been reported53 that, although the authorities have not
named those to be charged, the accused are known to be officials who held top management
positions in the airline at the time of the crash.
50
Id. Section 1.5.
51
Id. section 2.1. (a) to (c).
52
Kathimerini, Thursday February 2009.
http://www.ekathimerini.com/4dcgi/_w_articles_world_1_26/02/2009_105057
53
Ibid.
 11

A look at current tends brings to bear the fact that lessors and lessees as
business entities could be heading for toward a time where they could face both tortuous and
criminal liability for their negligent acts. In most globalized economies, tort law54, which is
the branch of law that provides compensation for injuries to persons and property caused by
the act of another, is a constantly evolving area of the law. This continuous evolution is
caused by new and emerging social and economic activities brought about by technological
advancement and increasing and varied commercial activity. For example, in the field of
environmental law, concerning a $ 333 million class action55 which was successfully argued
in court against a California utility for polluting the water supply of a local community, is a
good indicator of corporate liability. In the area of hospitality there is the “hot coffee”
paradigm of Macdonald’s fame where two States in the United States went on for law reform
after learning of the true facts of the case56.

6. CONCLUSION

The durability of tort law lies in its enduring ability to adapt old remedies to
new civil wrongs. New approaches to areas such as medical malpractice and the rights of the
patient are constantly evolving to the extent that in the United States, patients rights are being
increasingly enforced against medical malpractice or negligence of physicians or medical
institutions such as hospitals and clinics. The fundamental principle of professional conduct
obtaining in the United States is that the physician is in a position of trust and confidence as
regards the patient, and it is her duty to act with the utmost good faith toward the patient. If she
knows that she cannot affect a cure, or that the treatment adopted will probably be of no benefit,
it is her duty to advise the patient of these facts57. English law has accepted the concept of
incrementalism58, which rejects generalization in relation to the duty of care, in favor of a
cautious development of law founded on analogies to similar fact situations, but espousing and
applying fairness and justice to each case. This approach has its genesis in the judgment of
Justice Brennan in the 1985 case of Sutherland Shire Council v. Heyman59 handed down by the
High Court of Australia where His Honour said:

It is preferable…that the law should develop novel categories of negligence

incrementally and by analogy with existing categories, rather than by massive
extension of a prima facie duty of care restrained only by the indefinable…
considerations which ought to negative, or to reduce or limit the scope of the
duty or the class of person to whom it is owed60.

54
A ‘tort’is simply the Norman word for ‘wrong’ but ‘torts’ have typically been distinguished from
wrongs identified with contractual relations. Tort law is concerned with civil wrongs not arising from
contracts. See G.E. White, Tort Law in America (1980) XI.
55
Adam Cohen et.al, “are Lawyers Running America? Their Lawsuits are Setting Policy on Guns,
Tobacco and now HMOs, Who Elected Them? Time, July 17, 2000 at 22.
56
See State ex. Rel Ohio Academy of Trial Lawyers v. Sheward, 86 Ohio St.3d. 451 (Ohio 1999) and
Best v. Taylor Machine Works 689 N.E. 2d. 1057.
57
See Regan, Doctor, Patient and the Law (1950) at 34. See also, Benson v. Dean 232 NY 52; 133 NE
125 (1921). Stryker, Courts and Doctors at page 9 says: “The relationship of patient and physician is to
the highest possible degree a fiduciary one, involving every element of trust and confidence”. The
American Medical Association, Principles of Medical Ethics, in para 8 provides: “a physician should
seek consultation upon request, in doubtful or difficult cases, or whenever it appears that the quality of
medical service may be enhanced thereby”. See also, Annot, Duty to Send Patient to Specialist, 132
ALR 392 (1949).
58
See Stanton, Incremental Approaches to the Duty of Care, Chapter 2 of Mullany, Torts in the
Nineties, Law Book Company:1997.
59
(1985) 157 CLR 424.
60
Id. 481.
 12

The House of Lords found it fit to import this approach to the United Kingdom in the leading
1990 case of Caparo Industries Plc v. Dickman61 where Lord Bridge stated:

Whilst recognizing, of course, the importance of the underlying general

principles common to the whole field of negligence, I think the law has now
moved in the direction of attaching greater significance to the more traditional
categorization of distinct and recognizable situation, as guides to the
existence, the scope and the limits of the varied duties of care which the law
imposes62.

Therefore, there is no simple formula or touchstone to which recourse can be had in order to
provide in every case a ready answer to questions as to whether the law will or will not grant
recourse based on traditional rules of negligence. In this context, one wonders whether the use
of such catch phrases as “reasonably skilled professional”, without any attendant criteria to
define the phrase is practical anymore. It would certainly be interesting if the “incrementalism”
approach were to be applied along with established rules of law to future instances of
adjudication on negligence.

Finally, a disconcerting fact is that it is claimed that the main obstacle to tort
reform is that although it is desirable to keep an ongoing process of tort reform, those involved
in such reform are largely duplicitous in claiming to be grass roots citizens alleging to speak for
the average American, while their tax filings show that they are among the top level of tax
payers and occupy high corporate positions having largely successful industrial profiles. Often
the industries they represent are the defenders in cases ranging from defective products to
securities scams and medical malpractice.

As regards negligent entrustment, and in so far as criminalizing corporate

activity is concerned, this could set a dangerous trend against efforts by the air transport
industry which are calculated to ensure safety. Negligent entrustment, unless in extreme
cases of criminal negligence, in its classical sense is a tort and must be treated as such, with
the damage being calculated in terms of monetary compensation. Any extension of the
principles under this head of liability to criminal law would cast an undue burden on those
involved in providing services that are usually given out by experts such as pilots and
surgeons and their employers. They would be forced to concentrate on covering their tracks
rather than ensuring the protection of those under their charge. This is a pity.

61
[1990] 2 AC 605.
62
Id. at 618.