Section One of the Compensation Act - Essay Example

? Duty of care and compensation under section of the Compensation Act 2006. “Section of the Compensation Act 2006” has been mainly designed to dispel the UK public misapprehension that a compensation culture subsisted, rather than the actual number of claims initiated that had negative impacts thereby inculcating a risk-averse tendency. The main objective of section 1 of the above Act is to dispel the fear of possible defendants that the UK courts are willing to see the negligence where is any corroboration that an accident was avoidable? However, under common law in UK, there exists the provision as regard to discourage / deterrent impact of needing a specific preventative measure in the interest of risk minimisation. Section 1 of Compensation Act reaffirms the present common law, and it should be noted that it was not meant to transform the law but to only to transform the perception among the public mind. (Lunney & Oliphant2008:178). Under English common law, an action for infringement of statutory duty can be initiated if an individual has suffered damage due to a breach of a statute and can initiate an action in tort as regards to such damages. In such cases, the claimant has to establish that the defendant had failed to carry out his legal duty in this regard. Thus, there is no necessity to prove whether such breach of duty was either negligent or intentional. It is to be noted that in Couch v Steel1, it was held that whenever there is an infringement of a law provision which resulted in damage to an individual interest, a right of action can be initiated under tort. However in Groves v Lord Winborne 2 and in Atkinson v New Castle and Gateshead Waterworks Co 3 which were the leading nineteenth century cases which strikingly barred the ambit of the tort, and demanded that any individual claim for infringement of statutory obligation must first prove that the legislature had an intent that an infringement of such individual’s interest or right should be tortuous. Lord Denning MR in Ex p Island Records Ltd held that if a private right is being hindered with by a criminal act, thereby resulting in a special damage over and above the generality of the public, then, under such scenarios, such individual can approach the court as a private individual and prey that his private rights should be safeguarded. (Murphy & Street 2007: 492). In establishing the standard of care, the courts will also look into any pertinent social utility linked with the defendant’s conduct. This includes fortitude of the general public interest so that issues other than just in dispute between the defendant and the claimant may be taken into account in evaluating the standard of care need of the defendant. (Murphy & Street 2007: 101). However, now, the English courts are giving due importance to the social utility of would be respondent activities, which have been now given statutory force. The section 1 of the Compensation Act 2006 now provides that where a court is judging a claim of negligence, it will, in establishing the needed standard care, “have a conscience to whether there is a need to take those actions which are required to meet that standard might be a) bar a proposed activity from being perused at all, to a specific magnitude or in a specific way, or b) dissuade such individuals from perusing such activities in relation to such desirable activity.” (Murphy & Street 2007: 102). In Anns v. Merton London Borough Council4, the plaintiffs were the lessees of a group of flats owned by the defendant. The lessees subsequently discovered that the flats were constructed with inadequate foundations. In this case , the House of Lords confirmed the findings of the Court of Appeals that plaintiffs could initiate an action against the defendants for the cost of repairing the foundations.( Christie 2000:123). In Stovin v Wise5 , it was held that even where the administrators have entered into some type of action to prevent the third party, and if they carelessly skip some probable “follow-through”, this may not essentially be regarded as sufficient ground to necessitate an imposition of a duty. For instance, it is not unusual for police to choose to caution rather than to book a person who is committing offenses again and again. Would it be in the interest of public for all such occurrence s probably to give rise to legal course on the footing that care needed some sorts of post-caution surveillance on such individual?(Cane & Stapleton 1998:86). In Gorringe v Calderdale Metropolitan Borough Council6, the Court of Appeal followed the approach perused by Lord Wolf in Larner. In Gorringe, the claimant contended that there existed a duty under s.39 of the Road Traffic Act 1988 and contended that the defendant council was responsible as it had not taken adequate duty of care. The lower court found for the claimant and however, in the appeal, the Court of Appeal decided in favour of the defendant. (Cornford 2008: 185). In Tomlinson v Congleton Borough Council, a trespasser sustained injury in a lake under the management of defendant council. In this case, it was held that council did not have any duty of care by virtue of section 1 of the 1984 Act as there was not imminent peril on the occupier’s land as lakes being intrinsically perilous. Lord Hoffmann held that there existed no concealed perils. It was deep in some part of lake and shallow in some part of lake but that is the character of lakes.7 (Murphy & Street 2007: 102). In some cases, it has been held that there is no necessity to make any warning of any apparent dangers, like those connected with diving head first into a swimming pool with hardly any water in it. In Ratcliff v McConnell8, it was held that if some individual takes some foolhardy steps, it does not contradict the prevalence of duty of care to take reasonable steps to bar such individuals from carrying out those actions. (Murphy & Street 2007: 216). In Trustees of the Portsmouth Youth Activities Committee v Poppleton,9 the defendant suffered an injury during rock claiming in the plaintiff’s leisure theme place. The defendant argued that he might have been forewarned about the perils involved in such adventures. It was held by the Court of Appeal that if supervision or training were needed for such an endeavour, it would have needed for the entire gamut of commonplace leisure activities. Per May L.J viewed that “There being inbuilt and palpable perils in the activity which Mr. Poppleton was willingly perusing, the act did not in my outlook need the appellants to stop him from perusing it...............” It is to be noted that in Harris v Perry, High Court found that there existed negligence on the part of a parent who failed to take necessary steps to prevent a serious head injury during a birthday party to a child. However, the Court of Appeal turned down this verdict on the footing that (a) such grave injury could not have foreseen (b) that the acknowledged duty of care , to forewarn or supervise such activity did not warrant to a necessity of prolonging supervision.( Mandelstam 2008 :120). Thus, as elucidated in the cases like Tomlinson v Congleton Borough Council, a trespasser, Trustees of the Portsmouth Youth Activities Committee v Poppleton and in Gorringe v Calderdale Metropolitan Borough Council, we can conclude that one of the aims of the Compensation Act 2006 is to address the deterrent effect of potential liability on desirable activities being undertaken and to safeguard the defendants from the duty care provisions under the tort act. ANNOTATED BIBILIOGRAPHY Cane, Peter & Stapleton, Jane. (1998) ‘The Law of Obligations: Essays in Celebrations of John Fleming’, Oxford University Press, p86. This book is about the contribution made by John Fleming to the law of torts. The authors had collected contributions from many academicians around many jurisdictions and from judges. John Fleming “Law of Torts” was a great work on law of torts in which he synthesised major provinces of precedent, distilling and unravelling wider principles of law extended to common –law. In his book, John covered not only legal rules but also covered the provinces of instability in law of one jurisdiction with the law of other jurisdiction as a way of comparative law analysis. I have quoted the case law of Stovin v. Wise analysed by John Stapleton in page 86 of this book. Stapleton stresses that by citing Stovin case, there is no continuous duty of care is warranted even though a regulator had followed some partial duty of care. Christie, George C. (2000), ‘The Notion of an Ideal Audience in Legal Argument’, Springer, p124. This book analyses how some legal systems and cultures encourages wider general principles rather than a circumscribed and specific style of legal argument. As to the role of judge, the author argues that divergent legal cultures have varied idealised perceptions. Thus, varied conceptions of the role of judge will sway many features of legal decision making which includes how other authoritative official instruments and statues should be construed. While discussing a general / particular legal background in page 123, Christie has quoted Anns v. Merton London Borough Council, where the House of Lords confirmed the findings of the Court of Appeals that plaintiffs could initiate an action against the defendants for the cost of repairing the foundations Cornford, Tom. (2008), ‘Towards A Public Law of Tort’ Ashgate Publishing Ltd, p185. In this book, the author, Cornford has advocated that there is a necessity of reforming the English law of administrative liability. According to Cornford, the root cause of the perplexity that engulfs law of administrative liability is conceptual and the author’s main aim is to find a solution to some of the conceptual perplexity. Cornford has identified some aspects of the public authorities that demand for a particular guise of liability for their action. In page 185, Cornford discusses about Gorringe v Calderdale Metropolitan Borough Council case where the Court of Appeal followed the approach perused by Lord Wolf in Larner and in the appeal, the Court of Appeal decided in favour of the defendant. Lunney, Mark & Oliphant, Ken. (2008), ‘Tort Law: Text and Materials ‘, Oxford University Press, p178. This book has wider extracts from academic articles and from case law and author commentary and spotlights the chief legal points and offers a clear concise for the legal materials and cases. This book lucidly explains about the tort law which facilitates the reader to have easy understanding of significant academic views of tort law. The authors have correctly emphasised that Section 1 of Compensation Act was meant to transform the perception among the public mind. Mandelstam, Michael. (2008), ‘Community Care and the Law. ‘Jessica Kingsley Publishers, p120. In his book, Mandelstam has dealt elaborately dealt with policy, legal and practice transformation that impacts community care. This book offers a comprehensive and simple elucidation about community care laws and the other laws that are more pertinent to medical practitioners. The author cited the case Harris v Perry, and elaborated how Court of Appeal turned down the earlier verdict on the footing that (a) such grave injury could not have foreseen (b) that the acknowledged duty of care, to forewarn or supervise such activity did not warrant to a necessity of prolonging supervision. Murphy John & Street, Harry. (2007). Street of Torts. Oxford: Oxford University Press. This book offers an exhaustive analysis of tort law, illustrating how tort laws are functioning and elucidating the social objectives behind them. This book gives the reader a thought-provoking and contextual narration of tort law thereby making the readers to have a wider picture engulfing the issues behind tort laws. In this book, the authors discuss about Tomlinson v Congleton Borough Council case and analyse that the council did not have any duty of care by virtue of section 1 of the 1984 Act as there was not imminent peril on the occupier’s land as lakes being intrinsically perilous. Read More