Super Builders Ltd - Duty of Care and Economic Loss - Case Study Example

Course Title) (Name of the professor) (Name of University) (Date) Question one This problem involve claim by Amy for negligence against the Super Builders Ltd for the first instance and in the second instance Amy can also lodge claim against the hospital for professional negligence. To bring a claim in negligence it is necessary to prove the three elements namely duty of care, breach and damage. It is also important to consider any potential defenses available. The initial claim of negligence against Super Builders Ltd is established in the case Langridge vs. Levy (1837) the exploding gun case, a man purchased a gun from a gun maker, which guaranteed him that the gun was safe. Unfortunately, when the son of the gun owner used it, the barrel of the gun exploded and resulted to injury of the son's hand ended up being mutilated. Since the son of a man did not buy a gun, hence, there was no remedy in contract law, and the court dismissed the case advising not to sue any further. Since in the law of contract, the son did not buy a gun and therefore was not in the contract and secondly for negligence the son did not exist in the law (Howarth 2006). Otherwise, the man could sue the gun seller for misinformation and fraud since the gun was warranted as safe. Another case to be considered in defense for Amy is Winter bottom vs. Write (1842) is another possible defense where the broken axel. In this case, the defendant had contracted with the Postmaster General in order to repair its coach. In the process, the driver of the coach was injured with the axel when it broken and he was thrown out of the coach (Howarth 2006). The court was requested to consider if the driver had any claim against the Postmaster or the repair of the coach. In their decision, the court concluded that the driver had no action against either of them for any breach of contract. In their decision, Lord Aitken states: “the obligation of the defendant underneath the agreement with the Postmaster General could have only involve such a direct relation with the servant of the person whom the postmaster general has employed as a driver and this would have given rise to duty of care to such servants”. This could have captured the concept of negligence and duty of care (Kinsky 2006). George vs. Skivington (1896) is another defense case to be looked at. In this case, a man bought hair wash to his wife from the seller who happens to be the manufacture at the same time. The wife used the air was which resulted in her to suffer hair loss and scalp disorder (Leng 2007). Because the wife was not part to an agreement, she could not make an allegation under contract law. However, in their decision, the court concluded that under the contract, it extends to other users of the product whom the seller knew though was not part of that present contract (Leng 2007). The plaintiff was successful since the court held that the seller was negligence to the users of the product hence they owed them a duty of care. However, in his decision, the judge substituted the word negligence with the word fraud and followed the ruling in Langridge vs. Levy (1937). In the case of Amy, hospital directly owe her the duty of care and it is negligence for the hospital doctor to inject her with wrong medication, this is sufficient evident of negligence hence Amy vs. Hospital is a viable case. In the case of Heaven vs. Pender (1883), in this case, a ship painter was wounded when a stage slung over the side of the ship, which was standing collapsed (Morgan 2006). The platform was quite defective. Artist that had been contracted to do the painting by Gay owner engaged the Ship owner. Gray had then gotten into agreement with the Pender the owner the dock to supply the platform (Morgan 2006). The court was requested to give a ruling whether the defendant owed an obligation of care to a being that was to use the display place. In their verdict, the court ruled that the duty of mind was due to the individual who was to use the stage, more so as this was to be the time of his employment (Morgan 2006). The court went more to obiter dictum. “It is indubitable, however, that there may be the responsibility of such duty, from one person to another, although, in regard to such duty, there was no contract between them. The Construction Company had a duty to warn of the risk. An individual who owes an obligation of care to another person should give warning or prior information to the plaintiff in respect to the risk or other matters satisfying the duty of care to the plaintiff. In this case, Amy was not given prior information that passing next to that construction company could bring or pose a danger to her life. Another ground for argument is found in Caparo V Dickman (1990), case. Here there was no warning of the collapse of the building therefore Amy should consider instituting case against Super Builders Ltd. In second scenario, Amy would lodge case against the hospital who owes patients duty of care. The nurse injected Amy with a wrong medical prescription that amounts to negligence and omission. Defense to be considered in the second claims include Donoghue vs. Stevenson (1932) the snail in a bottle, in this case, Donoghue and her acquaintance stopped for a drink at the cafeteria, the friend ordered for a drink and paid for them. In the process, the ginger beer was served in dark and opaque bottle (Stapleton 1991). Donghue drunk filled her cup and drunk some of the content, as she enjoyed a drink and poured the rest of the content, she notices a decomposed snail that fell out of the bottle glass. Donoghue became sick and suffered nausea, gatro-entrities and shock. She sued the manufacture of the ginger under the law of negligence. In this case, Lord Atkin applied very different rule of the law stating that: “You must take reasonable care to shun acts or omissions which under your care you can reasonably foresee would be likely to inure your neighbor”. He went further to explain who your neighbor is “as under the law as any person who are so seal and openly pretentious by any perform that I must to rationally to have them in meditation as being to affected when I am directing mu mind to the acts or oversight which are called in question”. (Stapleton 1998) This case directly applied to the case of Amy since the hospital as acted in a way that has affected the patient. They owe her duty of care but because of omission, they negligently injected her with a different medicine making her stay more in the hospital. Amy should also sue Super Builders Ltd since their act of omission made the building fall on Amy. Harrinton vs. Stephene (1990), case provides fertile ground for defense in second case. In this case, the court was called upon to consider reproductive rights from the viewpoint of the unborn child. The court was asked to choose whether a youngster born with severe present at birth shortcoming, would have been aborted but for medical carelessness, has a right of act against the therapeutic practitioner a cause of deed, which has been known as a deed for wrong life (Stapleton 1995). Therefore, Amy should Sue for medical negligence in this case. So when Amy was walking down the street past a building that was being renovated by Super Builders Ltd. There be scaffolding on the side of the building adjacent to the street, which had become loose and collapsed down on to Amy as she walked past. The construction company ought to have given warning for passer by to avoid that route (Stapleton 1995). In the case of Barnett vs. Chelsea (1969) in this case, the workers of the hospital reported that they have been vomiting after taking tea, instead they were told to go home and call their own doctors. One of them passed away and the nurse argued that even if he had been admitted to the hospital he could have still died. In the conclusion, the judge argues that the plaintiff did satisfy the threshold of negligence since the deceased could have died still (Stapleton 1995). (b). Explain what has to be proven in an action for negligent misstatement. Your answer should include references to relevant case examples. The case of Hedley Byrne & Co Ltd vs. Heller & Partners Ltd (1964) was the first landmark ruling in the negligent misstatements where factors to be considered in proving action for negligent misstatement was made. In most situations, the query of the conditions, which would give augment to a duty of worried, has arisen. In order to make liabilities be within given bounds, courts have usually required the survival. The special relationship normally exist if one, the statement maker possess some special skills. Secondly, the maker of such declaration knows or ought to have known that the receiver would rely on the statement and lastly, the statement was reasonable for receiver to rely on the same statement. Amy should proceed with suing both parties since both owed her duty of care In the case of Ann vs. Merton LBC (1977) in, which the judge allows recovery based on the Lord Wilberforce decision tests of foreseeable and policy consideration that was laid down in this case (Commonwealth of Australia 2002). The House of Lords court decision in Caparo Industries plc vs. Disckman and others (1990) have overwhelmingly rejected the test. The one single approach that had been earlier own used by informative the continuation and extent of a duty of care in every circumstances has been thrown out in favor of a more cautious and restrictive case by case approach applying the concept of foreseeability, proximity and fairness (Commonwealth of Australia 2002). In the application of Caparo case, the court of appeal in the James McNaughton paper Group ltd vs. Hicks Anderson & Co. (1990) used the concepts of the foreseeability, proximity and reasonability and concluded that firm chartered accountants who had ready a set of draft accounts for a company (Commonwealth of Australia 2002). Collection did not owe a duty of care to invasion bidder who had relied on the accounts. The court of appeal emphasized on the fact that the accountants presented to the potential investor had been merely a draft accounts and thus was not a foreseeable that the bidder would essentially rely on them on the same manner has they would have relied on the final books of accounts (Abbott 2007). The court of appeal had the same issue in the case of Morgan Crucible Co plc vs. Hill Samuel & Co. Ltd, in which similar facts arose. The takeover bidder in this case sought to amend his statement of claim concerning the Caparo case to charge that there was the essential nearness for the defendants including the company director, auditor and financial advisor to be indebted him a responsibility of care in relative to financial statements made after the bid was announced (Stapleton 1991). In the case of Al- Nakib Investment (Jersey) ltd vs. Longcroft (1990) it was the issue of to what extent of the director's duty of care for financial statement other that the information provided in the annual audited report do (Amirthalingam 2008). The court of appeal held the company directors not accountable and owes no obligation of care to owners who had purchased shares in the market in reliance on the alleged misstatement in a brochure and a temporary report issued in relative to the incorporation of the subsidiary company do (Amirthalingam 2008). The decision of the court NIL sent interim report to the existing shareholders of the parent company. It was for allowing them to decide whether to take up the offer of civil rights issue and not to help them in deciding whether to procure shares in the market do (Amirthalingam 2008). Some of the principles to be applied in determining whether a duty of acre exists include: Foreseeability is not the sole criterion of liability. The duty extends to a specific transaction in the maker's mind at the time of making such statement. It has to be fair and rational to oblige accountability on the maker of such statement and lastly, the proximity must be justifiable. List of cases 1. Al- Nakib Investment (Jersey) ltd vs. Longcroft (1990) 2. Ann vs. Merton LBC (1977) 3. Barnett vs. Chelsea (1969) 4. Caparo Industries plc vs. Disckman and others (1990) 5. Caparo V Dickman (1990), 6. Donoghue vs. Stevenson (1932) 7. George vs. Skivington (1896) 8. Harrinton vs. Stephene (1990) 9. Heaven vs. Pender (1883), 10. Hedley Byrne & Co Ltd vs. Heller & Partners Ltd (1964) 11. James McNaughton paper Group ltd vs. Hicks Anderson & Co. (1990) 12. Langridge vs. Levy (1837) 13. Winter bottom vs. Write (1842) Bibliography Amirthalingam K. 2008. Refining the duty of care in Singapore,LQR 42 Hoffmann L. Causation 121 LQR 592 Commonwealth of Australia, Review of the Law of Negligence, Final Report (September 2002) at Howarth D 2006. Many Duties of Care – or a Duty of Care? Notes from the Underground 26 OXJLST 449 Kinsky C. 2006 SAAMCO 10 years on: causation and scope of duty in professional negligence cases (2006) 22(2) PN 86 Leng T. 2007. The search for a single formulation for the duty of care: back to Anns (2007) 23(4) PN 218 Morgan J 2006. The rise and fall of the general duty of care 22(4) PN 206 Neil Cuthbert & Alan Berg, “After Caparo:can banks rely on audited financial statements?” 1990 Apr IFLR 17. Stanton K. 2007.Hedley Byrne and Heller: the relationship factor (2007) 23 PN 94 Stapleton J. 1991. Duty of care and economic loss: a wider agenda 107 LQR 249 Stapleton J. 1998 Duty of Care Factors: a Selection from the Judicial Menus”, in Cane & Stapleton (eds), The Law of Obligations: Essays in celebration of John Flemming (Clarendon, 1998) p 59 Stapleton J.1995 Duty of Care – Peripheral Parties and Alternative Opportunities for Deterrence (1995) 111 LQR 301 The Hon Tony Abbott MP. 2007 , Minister for Health and Ageing, Media Release: ‘Medical Indemnity: more affordable, more secure’ (22 February 2007). Read More