Conceptual Framework of Duty of Care - Case Study Example

Law in business The brand new dishwasher’s breakdown could have been due to one or all of the reasons such as defective manufacture, the consumer’s mishandling, electrical short-circuiting etc. The cause of flooding of Jamiea’s flat which is beneath the flat of Chantelle’s flat from where the flood came from should be directly or immediately linked to the dishwasher’s defect for claiming damages from the manufacturer of the machine Spondex. In tort, product liability as a strict liability is allowed for only certain specified categories involving high risks in which case there is no need to establish presence of negligence on the part of the defendant. The instant case not involving high risk or dangerous operations cannot claim strict liability under tort, though liability under consumer protection act, it may be tried. But in either case the question is whether the consumer (purchaser and owner) or any other affected person like Jamiea or both can claim damages In tort, liability under common law for damage due to negligence is fixed on the basis of the three principles namely legal duty of care owed by the defendant, defendant’s breaching that duty and connection between the breach of duty and the loss or injury. The claimant must establish that the causative link between the duty breached and injury or loss is not too remote. After successful proving of these elements by the claimant, assessment of the claim in terms of value must be then taken up. Hence a liability in tort must fall within the conceptual framework of duty of care, breach of duty and damage (Harpwood 2005 p 22). Duty of care Duty of care exists in individuals in their respective capacities in which they act towards others. For example motorists on the road have duty of care to one another and the pedestrians in relation to physical injuries likely to be inflicted on them, doctors and other health care professions towards patients, parents towards their children, teachers towards their students, and manufacturers towards consumers of their products and employers towards employees. Thus in unique situations for which there are no precedents, courts decide on the basis of forseeabilty, proximity and justice and reasonableness in imposing the duty on the defendant as laid down in the decision of Caparo Industries Plc v Dickman [1990] (Harpwood 2005 p 27). Forseeabilty Reasonable foresight on the part of the defendant about the likely harm to the claimant because of the former’s acts or omissions was first recognised as an important factor to decide liability in the decision relating to Donoghue v Stevenson [1932]. Foresight is not the best test of duty of care but only one of the aspects of testing the duty of care. Soon after the concept of duty of care was established, manufacturers of the time started thinking and seeking advice whether they would be held liable for defects in their products should injury was caused. In Grant v Australian Knitting Mills [1936], the underpants of the defendants caused dermatitis to the claimant due to a chemical present in an ingredient used for manufacture of the woolly underpants. Therefore it was held that because the defendant manufacturer owed a duty of care to the claimant, the defendant was held liable even though it was a rare illness occurring one in five million. But in another case Topp v London County Bus (South West Ltd [1993], the defendant was not liable because claimant could not prove that the defendant could have reasonably foreseen the stealing of his bus by an unknown joy rider which the defendant’s employee failed to stop the joy-rider ultimately killing the claimant’s wife by reckless driving. The underlying principle was that the defendant could not have reasonably foreseen the fatal incident. In yet another decision Margereson v JW Roberts Ltd, Hancock v Same [1996], children who played near the asbestos factory developed pulmonary disease due to dust contamination and the defendant was held liable as he must have reasonably foreseen the adverse reaction, as a part of his duty of care owed to the neighbours. When the extent of liability and duty of care are not clear enough, foresight requirement cannot be an adequate test for liability (Harpwood 2005 p 28). In the instant case, question arises whether it was sufficient that Spondex could have foreseen his dishwasher to harm the Chantelle alone or Jamiea also. Proximity Foresightedness is closely related to proximity which concept led to the decision in Donoghue v Stevenson and had been the sole deciding factor for negligence. Proximity is more important than forseeabilty especially for personal injury cases. For instance, foresight was considered a synonym for proximity by Lord Keith while deciding Yuen Kun Yeu v Attorney General of Hong Kong [1988] Proximity is a measure for deciding extent of liability involving economic loss and also crucial to decide in instances of omissions instead of positive acts. Proximity is also an important factor to decide liability in nervous shock cases such as AB v Leeds Teaching Hospital & Another [2004] (Harpwood 2005 p 28). In the instant case, while there can be proximity for Chantelle, it is highly doubtful the same can be said of Jamiea’s loss unless further examination of the underlying concepts permit. Fair, just and reasonable. This concept is of recent origin of late 20th century developed by courts as judicial policy while deciding the leading case Caparo v Dickman (1990). This implies whether the result of the defendant’s act was reasonably foreseeable. It should also enquire what the proximity of the relationship between the parties involved is. And whether it would be fair, just and reasonable to expect the law “to impose a duty upon one party for the benefit of another’. This incremental approach overtook the earlier two stage approach or test consisting of foresight and proximity as held in Anns v Merton BC [1978]. Accordingly, the question arises whether it is just, fair and reasonable to hold Spondex liable for loss caused to Jamiea though without doubt one can find for Chantelle who is the actual consumer and the actual buyer of the dishwasher provided it was due to a defect. It is not fair, just and reasonable to hold Spondex liable for Jamiea’s loss. Causation The cause of the harm cause must be closely connected with the claimant. In the case of Spondex, the harm caused to Jamiea’s flat and his computer is not closely connected to the act or omission of the defendant Spondex. Because Jamiea did not purchase the dishwasher from Spondex and Jamiea is in no way connected to the act or omission of Spondex except that his flat happens to be beneath that of Chantelle from whose flat water seeped in to his flat. Hence, although the origin of the trouble is from the dishwasher, the duty of care was on the part of Chantelle not to let the water out and not Spondex who is too remotely connected to the water seepage into Jamiea’s flat. Even otherwise, the flat designer or the builder only must be responsible for the water going down and not Spondex, provided Chantelle did not contribute to the outcome like keeping the dishwater negligently at an improper place of his flat without a drainage arrangement. The dishwater should have been kept in a place where drainage was available without allowing the overflowing water to wrongly flood into Jamiea’s flat. Hence, much depends on the evidence available to hold Spondex liable to Chantelle but not Jamiea for whose harm Spondex is not apparently responsible. In an almost similar case Lamb v Camden London Borough Council [1981], claimant’s residential property was damaged due to breaking of water main for which the defendant admitted its liability like the above argument that Spondex may be liable to Chantelle if other conditions are satisfied. But in Lamb’s case, the claimant wanted to be compensated by the defendants for damage caused by the squatters while the house had been vacated for repairs. It was held that damage caused by the squatters was too remote and unforeseeable and held that there was no liability for the squatter’s damage. Though an invasion could be foreseeable, the courts made it a policy issue and considered it as an unrecoverable type of damage. The argument was that the claimant could have insured against such risks (Hodgson and Lewthwaite 2007 p 49-81). Similarly Jamiea also could have insured or might have already insured and if at any claim lies, it can only be with the insurers. In another case King and Liverpool City Council [1986] 3 All ER 544, the claimant who was a tenant of the defendant council’s flat complex, had her flat damaged due to flooding of water as a result of damage caused by the vandals to water pipes of an upper flat which was unoccupied. In spite of the claimant’s complaint, problem persisted. The court held that the defendant owed no duty of care to the defendants for damage caused by the third parties. Though in the instant case, there is no problem as such to Jamiea from a third party, the decision is a pointer to the fact of no duty being owed to Jamiea by Spondex. In view of the above, tortious liability of Spondex under common law may be considered as follows. That Spondex is not liable to Jamiea for damage to his flat and computer as there can be no liability for want of forseeabilty and because of being too remotely connected to the damage caused to Jamiea who should have insured the property. As for Spondex’s liability to Chantelle, all the ingredients of negligence being present in the act or omission of the defendant Spondex, Chantelle is entitled for damages in terms of cost of repairs. As Jamiea can claim from Chantelle for his possible negligence by having kept the machine in an unsafe condition, he can add to his claim from Spondex for possible damages to Jamiea if Chantelle could prove that the water seeped into Jamiea’s flat directly as a result of the machine’s break down in spite of his all precautionary steps. Claim under Consumer Protection Act 1987 Spondex is liable to Chantelle for product liability in terms of duty of care and consequential harm under tort. The liability under Consumer Protection Act for Spondex is additional as a manufacturer of the defective product. It extends to consequential damage to the product as well to the person or property of the consumer. Liability is not tied to fault as per the act which was enacted pursuant to the EEC Directive 85/374/EEC whose preamble says “liability without fault”. As such the claimant does not have to show that the manufacturer lacked in duty of care. The Act covers liability only for the defect in the product and not for all injuries caused by the product. The defect is explained as want of expectation of the product in general and the difference in the liability due to fault under common law and strict liability under the Act is the difference between the proof of negligence in terms of “design, manufacture or marketing” (Steele, P846) (at common law) and proof of “defectiveness in the product” (Steele, P846) (under the Act 1987) (Steele, P846). However, the under the Act, a consumer can sue for death, personal injury or damage to private property provided the value is £ 275 or more while there is no ceiling on total liability. The manufacturer can also avoid liability under claim of contributory negligence by the plaintiff. The defendant can also avoid that the defect was unavoidable as it was part of compliance with law or claim that the defect was not present when it was supplied though the retailer might have caused it later. He can also justify that scientific and technical knowledge was such that the time of supply, that defect could not have been discovered which is “developmental risks defence” (DTI) This being the position , both Chantelle can not claim from Spondex due to the claim likely to be less than £275. As for Jamiea, he also no claim from Spondex as he did not purchase it nor the product was in his flat. References AB v Leeds Teaching Hospital & Another [2004] EWHC 644 9QB) Anns v Merton BC [1978] AC 728 Caparo Industries Plc v Dickman [1990] 2 WLR 358 Donoghue v Stevenson [1932] AC 562 DTI, Guide to the Consumer Protection Act 1987 Product Liability and Safety Provisions. Web 19 August 2010 < www.bis.gov.uk/files/file22866.pdf> Harpwood Vivienne. Modern tort Law, 6th ed London, Cavendish Publishing Routledge, 2005. Print Hodgson John and Lewthwaite. Tort Law Text Book Oxford Oxford University Press ed 2, 2007. Print. Lamb v Camden London Borough Council [1981] 2 All ER 408 Margereson v JW Roberts Ltd, Hancock v Same [1996] PIQR 358 Steele Jenny. Tort Law: Text, Cases, & Materials Oxford Oxford University Press, 2007. Print. Topp v London County Bus (South West Ltd [1993] 1 WLR 976 Yuen Kun Yeu v Attorney General of Hong Kong [1988] AC 175 Read More