Law Issues in Business - Case Study Example

The above scenario requires an examination of the law of negligence in order to advise the parties with regard to the standard of proof required to bring a claim. This will involve looking at case law with regard to negligence claims and from there applying the principles to the problem question. It will also be necessary to consider the types of actions that can give rise to a claim for negligence. This is particularly important in this particular situation, since the incidents are work related. Consideration will need to be given to legislation surrounding health and safety in the workplace, in order to determine whether a claim should be brought for breach of the legislation instead of a simple claim in negligence. After examining all of the above it should be possible to reach a conclusion with regard to the potential claims of each party, and to advise them on the prospect of bringing a successful action against the employer. In bringing a claim for negligence the plaintiff has to demonstrate that the respondent owed them a duty of care1 and that as a direct result of a breach of that duty they have suffered financial loss or injury. One of the key factors used by the courts in assessing liability is the foreseeability of the event. The court will analyse the circumstances of the incident and then determine from there, whether the respondent ought to have foreseen the outcome, or should have anticipated that such an event might occur. Duty of care was first addressed in Donoghue v Stevenson2. As a result of this case the neighbour test came into existence. This case was important because it established the right of the applicant to bring an action against a manufacturer rather than against the retailer. In recent times the courts have altered the principle into the proximity test. This test was used by the courts in Heaven v Pender3. The plaintiff in this case was able to persuade the court to hold the employer liable for not providing a safe working environment for the plaintiff. The court held that the staging and ropes were not it to be used, and that as a result of that the plaintiff was involved in a serious accident. In summing up Brett MR made the observation that whenever one person is by circumstances placed in such a position with regard to another, that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger. It would appear from this case that the courts have accepted that there may be circumstances when a person will owe a duty of care to another even though there is no contract between them. Lord Esther noted this also in Le Lievre & another v Gould4 stating that ‘Heaven and Pender established that, under certain circumstances, one man may owe a duty to another, even though there is no contract between them. If one man is near to another, or is near to property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property’. In the same case Smith LJ commented that ‘The decision of Heaven v Pender was founded upon the principle that a duty to take due care did arise when the person or property of one was in such proximity to the person or property of another that, if due care was not taken damage might be done by the one to the other.’ If the courts are able to find that a duty of care did exist between the plaintiff and the defendant, they will then examine the facts of the case to determine whether that duty has been breached5. If the duty has been breached, the court will require evidence to show that the plaintiff has been harmed as a result of the breach 6 or has experienced a financial loss7 . In Spring v Guardian Assurance Plc8 the House of Lords emphasised the importance of the ‘fair, just and reasonable’ factor that should be used by the courts when concluding whether the respondent should be held liable for the harm caused. This case is particularly relevant for this particular scenario, as it concerned the issue surrounding potential actions that can be brought when an ex-employer provides a potential employer with a reference for an employee that is so badly prepared that the new employer decides not to offer the employee the post. The court in this case found the ex employer liable for the reference and ordered them to pay compensation for the economic loss suffered by the employee. In determining liability the court will examine the conduct of the parties in order to establish whether on the balance of probabilities the conduct9 of the respondent did not meet the standard expected by the court10. The test of foreseeability was applied in Hall v Brooklands Auto-Racing Club11. In this case the respondent was not found liable for the injuries to the plaintiff as thre court determined that the respondent had taken all necessary actions to ensure the safety of those attending at the stadium. The court concluded that the plaintiff ought to have foreseen the potential danger involved with attending such an event, and that he had not taken adequate measures to protect himself from the potential danger. The test of foreseeability is based on the ‘hypothetical reasonable man’ approach. This hypothetical figure can alter dependent on the skill and expertise associated with the occupation of that person. In this way the court would not set the sane standard for the conduct to the standard required of a professional such as a lawyer or a doctor12. When considering the potential claims in the above it is necessary to examine any relevant breaches of legislation that might have occurred. The cramped working conditions in particular, as well as the seats that do not give the user adequate support, are likely to give rise to a claim under the Health and Safety at Work Act 1974 (HSWA). Section 2 of this Act states it shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees. In order to ensure that the workplace is safe, employers should carry out systematic assessments of risks in the working environment. Employers have a special duty to ensure the working environment is suitable for employees that are continually using computers or visual display screens. The Health and Safety (Display Screen Equipment) Regulations 199213 place requirements on employers to ensure that the employee gets regular screen breaks, as well as a requirement for the employer to check the workstation of the employee, to give them maximum comfort whilst carrying out their duties. Under the above regulations employers are placed under a duty to ensure the equipment being used by the employees is of an adequate size and suitable for the function. Furniture and other equipment should be adjusted to provide maximum comfort for the user14. The information in the scenario seems to suggest that no such assessment has been carried out15. When considering the accident in which Geoff was injured he could argue that the company owed him a duty to ensure the working environment was safe. It is obvious from the comments made by Mr Gervais that there have been other incidents where Peters has been told off for ‘larking about’. In this situation Geoff could argue that the actions of Mr Gervais have been insufficient in dealing with the problem with Peters, as he has continued to play pranks, despite having been told to stop. Mr Gervais could try to counter that argument by stating to the court that he was not directly responsible for the injury caused, and that he did not anticipate that anyone would fire a pair of scissors in this manner16. However, as he had told Peters off before, it is likely that the court would hold that he should have taken greater steps to control the behaviour of Peters. The company might be able to spread liability between themselves and Peters, although the rules of vicarious liability suggest that the company is likely to be held responsible for the actions of Peters17. As this is an accident in the workplace the company has a duty to inform the Health and Safety Executive, so that they can investigate the cause of the accident. If their investigation suggests that the workplace does not meet the required standard, they have the power to order the company to close the premises until they reach the required standard18. This could lead to criminal charges being brought against them in relation to Geoff’s injury, as well as making them liable to pay compensation to Geoff19. There are several things that might allow a claim for negligence to be brought in this scenario. These include the inadequate equipment in the office as well as the cramped conditions, the ill fitted carpet, and the lack of adequate supervision to ensure that staff behave appropriately in the workplace. Claims for the working conditions in the office are more likely to be brought under breaches of the HSWA, this includes the cramped conditions and seating as well as the carpet. The claim for Geoff is likely to be brought under a claim for negligence, though as mentioned above, the court might agree that the company failed to provide a safe environment through inadequate supervision of staff. Geoff is likely to succeed in his claim, as it would have been reasonably foreseeable that firing the scissors in this manner might cause someone a serious injury. When determining the level of compensation the court would take into account the permanence of the injury, as well as the financial loss suffered by Geoff having to take a less well paid job. The court will also take into consideration the fact that Geoff can no longer drive or pursue his hobby of painting. The court may decide, as they did in Colquhoun v Renfrew County Council 197320 that the defendant should not be held liable, as it was not reasonably foreseeable that a pupil would bring an air rifle into school and use it in this manner. However, with Geoff, he could argue that this is not the first incident with this employee, and therefore the company should have foreseen that he might continue doing stupid pranks. When considering the issue concerning the reference, the case of Spring, mentioned above, is of particular relevance as the facts of this case are similar to the scenario. However, the difference between this case and the scenario, is that the employee whose reference was badly prepared in Spring did not get appointed to the new role, and therefore suffered financially. In the scenario, the employee was still given the post, and so therefore no harm was caused financially, although the reference suggested that he was unreliable. As there has only been damage to the reputation of the employee the court are unlikely to make any significant award for damages. Having examined all of the above the advice to the various parties would be that Geoff ought to be able to claim for negligence. The claim should be against Peters as well as the company, as they are vicariously liable for his actions. His claim should include an amount for future loss as the injury is permanent, and has affected his ability to earn the amount he used to be paid, as well as preventing him from driving and painting. The secretary’s ought to insist on workstation assessments, and should bring an action against the company if they either refuse to carry out the assessment, or fail to make the appropriate changes once they have completed the assessment. Similarly, they ought to insist that steps be taken to ensure that the carpet is properly fitted, bringing an action for breach of the HSWA if the company refuses to comply. With the reference, an action in negligence should be brought against the ex employer, although the court might not make any monetary award for this as no financial loss occurred as a result of the ill prepared reference. Bibliography Civil Procedure Volume 2, The White Book Service, 2002, Sweet and Maxwell Clerk and Lindsell on Torts, (18th ed. Sweet & Maxwell, London, 2000), Chap. 10. Cooke, J, Law of Tort, 7th Ed, 2005, Pearson Education Elliott, C & Quinn, F, Tort Law, 2005, Pearson Education Harvey & Marston, Cases & Commentary on Tort, 3rd Ed, 1998, Pitman Publishing Howarth, D, Textbook on Tort (London: Butterworths,1995) 462 Oliphant, K, ‘The Nature of Tortious Liability’ in A. Grubb (ed),The Law of Tort (London: Butterworths, 2002) para 1.12 Rogers, W V H, Winfield and Jolowicz on Tort, 2006, 17th Ed, Sweet & Maxwell Rose, FD, Statutes on Contract, Tort & Restitution, 10th Ed, 2000, Blackstone’s Weir, T, A Casebook on Tort, 8th Ed, 1996, Sweet & Maxwell Weir, T, Tort Law, 2002, Oxford University Press Williams, G & Hepple, B A, Foundations of the Law of Tort (London: Butterworths,1976) 59-61. Cases AB v Nugent Care Society (formerly Catholic Social Services (Liverpool)) [2006] EWHC 3031 Alderson v Piggott & Whitfield Ltd [1996] C.L.Y. 3003 Baird v Thurrock BC [2005] EWCA Civ 1499 Times, November 15, 2005 Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582 [1957] 2 All E.R. 118 [1955-95] P.N.L.R. 7 (1957) 101 S.J. 357 Coleman v Dunlop Ltd (No.1) [1998] P.I.Q.R. P398 Colquhoun v Renfrew County Council 1973 SLT (Sh. Ct) 50 Donoghue v Stevenson [1932] A.C. 562 Given v James Watt College 2007 S.L.T. 39 2007 G.W.D. 1-13 Hall v. Brooklands Auto-Racing Club (1933) 1 KB 205. Heaven v Pender (t/a West India Graving Dock Co) (1882-83) L.R. 11 Q.B.D. 503 Henderson v Wakefield Shirt Co Ltd [1997] P.I.Q.R. P413 Hiles v South Gloucestershire NHS Primary Care Trust [2006] EWHC 3418 Kelly-Madden v Manor Surgery [2007] I.C.R. 203 [2007] I.R.L.R. 17 Le Lievre v Gould [1893] 1 Q.B. 491 McSherry v British Telecommunications Plc [1992] 3 Med. L.R. 129 Mountford v Newlands School [2007] EWCA Civ 21 (2007) 151 S.J.L.B. 164 O (A Minor) v Great Ormond Street Hospital for Children NHS Trust (1999) 99(3) Q.R. 7 Pearson Education Ltd v Charter Partnership Ltd [2007] EWCA Civ 130 Times, March 7, 2007 R. v Warburton-Pitt (Stephen Ronald) (1991) 92 Cr. App. R. 136 Times, July 6, 1990 Revill v Newberry [1996] Q.B. 567 [1996] 2 W.L.R. 239 [1996] 1 All E.R. 291 (1995) 92(44) L.S.G. 31 (1996) 146 N.L.J. 50 (1995) 139 S.J.L.B. 244 Times, November 3, 1995 Independent, November 10, 1995 Smith v Baker and McKenzie [1994] C.L.Y. 1662 Spring v Guardian Assurance Plc [1995] 2 A.C. 296 [1994] 3 W.L.R. 354 [1994] 3 All E.R. 129 [1994] C.L.C. 766 [1994] I.C.R. 596 [1994] I.R.L.R. 460 (1994) 91(40) L.S.G. 36 (1994) 144 N.L.J. 971 (1994) 138 S.J.L.B. 183 Times, July 8, 1994 Independent, July 12, 1994 Trott v WE Smith (Erectors) Ltd [1957] 1 W.L.R. 1154 [1957] 3 All E.R. 500 56 L.G.R. 20 (1957) 101 S.J. 885 1957 Read More