Provisional Assessment of Law Investigation - Essay Example

?Provisional assessment of our client’s case Re of Cwmfelin Researching the law I wish to you conduct detailed legal research based on thematerial sent you by myself and the relevant parties. Please ensure I receive this information at least two days before the end of this stage of the claim as I need time to give you feedback and arrange (hopefully) for negotiation to commence with the claimant. In this case, Mr Jones sustained an injury as a result of an accident at his workplace on 13th of September 2010. He works for Cwmfelin University as a maintenance man. Whilst he was walking down some stairs at the University on the day in question, he lost his footing on a loose step and lost balance which subsequently resulted in the injury. The following sections of this assessment are specifically going to focus on the relevant statutes that can be inferred when negotiating for a settlement as well as remedies. Case list and relevant statutes Briefly outline any cases/statutes you have researched in this area which are relevant to our client’s claim. This should be more than just a bulleted list. Basically, tort law commonly refers to a civil wrong not arising from a contract and in the case of negligence, everyone has a duty of care owed to the neighbour (Capiro Industries vs. Dickman 1990). Cooke (2010) suggests that a remedy can be given in the form of compensation where the plaintiff can prove beyond reasonable doubt that the defendant owed duty of care in the event of injury. Thus, in case of tort law, specific duties apply to everyone and are imposed by the law. According to Terry & Giugni (2009), there are four elements of the tort of negligence that have to be proved by the plaintiff and these include the following: there is need to prove that the defendant owed the plaintiff a duty of care, the defendant breached that duty by falling below expected standards, the defendant’s conduct caused the plaintiff to suffer physical or economic harm (causation) and the harm suffered by the plaintiff was reasonably foreseeable (remoteness). Under common law, duty of care must be observed whereby the breach of such duty, causation of damage, remoteness of damage and the defences would be taken into account as illustrated in the following cases below. Facts The case of Murphy v Brentwood[1991] 1 A.C. 398 can be used to establish the duty care owed by the contractors in the construction industry. Issue Were defendants negligent? Rule They were negligent because they did not take into account safety precautions when constructing the house. In our case, we did not constantly check the state of condition of our buildings. Analysis The court found that the engineers as well as contractors were negligent when they failed to take necessary measures to ensure that they construct a solid foundation of the house. In the case of Blyth v Birmingham Water Works Company, the facts are as follows; the defendants installed a fire plug near the plaintiff’s house that leaked during a severe frost, causing water damage and the jury found the defendant negligent, and the defendant appealed. Issue Were the defendants negligent? Rule Defendants can only be negligent when they fail to do what a reasonable person can do. Analysis This was an accident caused by natural causes. The case of Bolam V Friern 1957 also illustrates a case involving negligence but the court ruled in favour of the doctor because he was acting within his profession. In most cases, for a claim to be successful, the four elements mentioned above have to be proved. The Occupiers’ Liability Act (OLA) 1957 is mainly concerned with the duty care owed to the occupiers of a building and these can be classified as employees or visitors. They ought to take into consideration the risk of danger that may prevail. On the other hand, the employer is liable for breach of his duty if he fails to provide his employees with safety as well as safe equipment to use (Wilson and Clyde Coal Co Ltd v English [1938 ] AC 57 (HL) 141). This also includes a duty to ensure that the employees are not injured at work. This is also supported by the case of Reid v. Rush & Tompkins Group plc[1990] 1 W.L.R. 212. Where there is an employee and employer relationship, the employer is liable for the safety of all the employees within an organisation. In this case, the injury of Mr Jones was caused by stepping on a loose brick which resulted in him falling and badly injuring his right risk. From this argument, we are liable to the claimant. Summary of the law relevant to this area Briefly outline the law relevant to this area. Again, this should be more than just a bulleted list. In as far as the aspect of duty care is concerned, each person owes duty of care to the neighbour. The tort of negligence law is relevant to this area and it mainly derives from common law. The aim of this law is to ensure that a person who has suffered a civil wrong as a result of negligent behaviour is compensated according to the losses or injury caused by the actions of the defendant. It also aims to deter persons from acting in such a way that would cause injury to the other people. Tort laws are also meant to protect personal property, security as well as economic interests of individuals through provision of legal capacity whereby damages can be claimed in the event that there has been an injury caused to someone or economic loss as a result of negligent behaviour of the defendant. Us as the defendant, we must negotiate for a settlement with Mr Jones who is the claimant in this case since we are responsible for this injury. A summary of injuries and prognosis According to the Accident Report book as approved by the Secretary of State Social Services for the purposes of the SOCIAL SECURITY ACT 1975, Mr Jones fell down stairs after losing footing on a loose step. He landed on his right limb and badly injured his wrist and had to seek medication. However, some five months after the injury, he continues to complain of intermittent pain in the injured area. From what he claims, the intermittent pain and swelling of the limb can be attributed to the original accident though he made an effort to return to work. This shows commitment on his part and he cannot be blamed for returning to work at an earlier date. It can be noted that Mr Jones is now incapable of doing certain things as a result of the after effects of the accident. The swelling and pain from time to time affects his grip and he also complains of discomfort especially during the winter season when it is cold. Mr Jones’ work is largely manual and it is feared that if the injury persists, he may not be able to apply for similar jobs in the future which puts him at a disadvantage. There is also risk that some complications can develop on his limb such as arthritis which can negatively impact on his prospects of his employment in the future since this can affect the functioning of the limb. He may not be able to lift or carry heavy weights. When Mr Jones was involved in this particular accident, he was on duty and it can be noted that it was not his fault. In actual fact, he fell down after losing footing on a loose step and this can be attributed to negligence by our foreman, Mr Vicks. A reasonable person is supposed to ensure that the working environment is safe such that the employees will not be injured. The Occupational Liability Act (1957) posits to the effect that the employer is responsible for the safety of the employees at their work place. To make matters worse, Mr Jones was injured while on duty and it can be safely argued that he is entitled to get full compensation since it was not his fault hence the need for us to negotiate for a settlement. He was carrying a heavy load and his vision was partially obscured when he stepped on a loose step. All these factors This is an indication that us as the responsible authorities did not put enough measures to ensure the safety of the employees while on duty. Your provisional opinion about merits of this case Are we in a position to negotiate a settlement with claimants? Please give some indication regarding the basis from which we will proceed with the negotiation. We are in a position to negotiate a settlement with the claimants to avoid a lawsuit. There is abundant evidence that can be used against us as the defendants. As noted, Mr Jones was injured while at work and there are statutory regulations that can be inferred such as the Occupational Liability Act (1957). It is the duty of the employer to ensure the safety of the workers while at the workplace. As a matter of fact, it was not Mr Jones fault which leaves the university liable for the injury hence the need for us to negotiate for a settlement. Secondly, the injury is persistent since Mr Jones is complaining of intermittent swelling and pain of the affected area. This can negatively impact on his future prospects of applying for the same job since he will no longer be considered as an able bodied person. This can be regarded as economic loss on his behalf since he will not be able to fend for himself and his family. This means that he will be unproductive. His future in this organisation is also uncertain as we are contemplating to lay him off so we can negotiate for a settlement which will not be very costly to us than wait for him to file a lawsuit. We may be forced to pay a lot of money so negotiation is the only alternative. Quantum Briefly summarise the areas of loss you wish to lodge a claim for with this client and estimate the amount The plaintiff has been injured while at work and this entitles him to get full compensation. Safety and environmental policies which are stipulated in the Occupational Liability Act (1957) are meant to protect the safety interests of the employees. On top of that, his future prospects of getting similar employment have been prejudiced by this accident and this must be taken into consideration as well by us the defendants. The amount to be claimed should include full salary during the days he was not working as it can be noted that he was paid a paltry statutory sick pay of ?79.15 a week. It was not his fault to be injured at work hence he should get all his money. We must also cover for all the medical expenses that were incurred. Since we are intending to lay him off, we can offer him redundancy package so that he will not sue us for unfair dismissal. We can peg this to the equivalent of his annual salary plus the benefits. Feedback from the Senior Partner References Cooke, J. Law of Tort. London. Pearson. Day of duty care, causation, remedies, breach of duty, foreseeability and risk (N.D). Retrieved from http://www.law-essays-uk.com/resources/sample- essays/tort/remedies.php Donoghue v. Stevenson [1932] All ER Rep 1; [1932] AC 562; House of Lords Retrieved from http://www.safetyphoto.co.uk/subsite/case%20abcd/donoghue_v_Stevenson.htm Koffman, L., & McDonald, E., (2007). The Law of Contract. 6th Edition. Oxford University Press. Negligence UK (2007) Retrieved from http://en.jurispedia.org/index.php/Negligence_(uk) Negligence: duty of care and breach of duty (ND). Retrieved from http://www.londonexternal.ac.uk/current_students/programme_resources/laws/subject_guides/tort/tort_ch3.pdf Paris v Stepney Borough Council [1951] AC 367 13 December 1950. Retrieved from http://www.a-level-law.com/caselibrary/PARIS%20v%20STEPNEY%20BOROUGH%20COUNCIL%20%5B1951%5D%20AC%20367%20-%20HL.doc Negligence UK (2007). Retrieved from http://en.jurispedia.org/index.php/Negligence_(uk) Clinical negligence and compensation laws (ND). Retrieved from http://www.hospitalnegligence.co.uk/clinical_negligence_definition.html HOUSE OF LORDS HILL v CHIEF CONSTABLE OF WEST YORKSHIRE [1989] AC 53 28 April 1988. Retrieved from http://www.a-level-law.com/caselibrary/HILL%20v%20CC%20WEST%20YORKS%20%5B1988%5D%202%20AER%20238%20-%20HL.doc Paris v Stepney Borough Council [1951] AC 367 13 December 1950. Retrieved from http://www.a-level-law.com/caselibrary/PARIS%20v%20STEPNEY%20BOROUGH%20COUNCIL%20%5B1951%5D%20AC%20367%20-%20HL.doc Richards, T. Ludlow, C. & Gibson, T., (2009). Tort Law in Principle. 2nd Edition. LBC Terry, A. & Giugni, D., (2009). Business and the law. 5th Edition. Cengage Learning Australia. The Occupiers Liability Act 1984 (2011). Retrieved from http://www1.euro.dell.com/content/default.aspx?c=za&l=en&s=gen Read More