Law of Tort. Majrowski v Guys and St. Thomas NHS Trust. Rylands v Fletcher - Coursework Example

?Question A. Ben The House of Lords’ decision in Majrowski v Guy’s and St. Thomas NHS Trust establishes that an employer is vicariously liable for workplace bullying or harassment by one employee of another.1 Therefore Ben is at liberty to pursue a claim against X Ltd. in tort for Amir’s harassment provided he can substantiate the requisite elements constituting harassment. The fact that Ben complained to management in the past and after the incident in which he was locked in a store closet will not exempt X Ltd. from liability under the principle of vicarious liability. Despite a formal warning, the harassment continued. The fact is, an employer can be vicariously liable even if the employer is not aware of the harassment leading to psychiatric injury.2 Since Ben can substantiate harassment for which the employer is vicarious liable under the House of Lords’ interpretation of the Protection from Harassment Act 19973, Ben will have to prove that the harassment took place in the course of employment. An employer can only be held vicariously liable for the conduct of an employee during the course of employment.4 In this regard, the Salmond test is instructive. The Salmond test provides that: An employer will be liable not only for a wrongful act of an employee that he has authorized, but also for a wrongful and unauthorised mode of doing some act authorised by the master.5 It can be inferred that since Ben complained in the past and Amir’s harassment only intensified, X Ltd. authorized the harassment and therefore Ben will be able to meet the definition of the Salmond test. As Lord Millett stated, the Salmond test would act as a guide for applying the law to different facts and circumstances.6 Vicarious liability under the Protection from Harassment Act 1997 broadens the Salmond test in that the employee need only be acting during work hours and in the workplace.7 Moreover, it was established in Jones v Tower Boot Co. Ltd., that the Salmond Test may not be applicable in cases of harassment. The Salmond test may only be applicable in cases where an employee’s tortious conduct is directed toward a third party. However, when the employee’s conduct is directed toward another employee, the employer will not escape liability. In this regard, the phrase “in the course of employment” will be interpreted liberally.8 In the final analysis, the test to be applied in establishing vicarious liability, is whether or not the behaviour complained of was such that it had an impact on the victim’s ability to perform his duties. Essentially, what this means is that once the harassment occurs during working hours and more especially in the workplace, the employer will be liable.9 In any event, there is no doubt that the bullying and/or harassment committed by Amir, did have an impact on Ben’s ability to work. He took three weeks off work and upon his return was subjected to further bullying which rendered Ben unable to return to work. Therefore in all the circumstances, Ben has a claim against his employer, X Ltd. for harassment at work under the principles of vicarious liability. B. Amir Section 1 of the Protection from Harassment Act 1997 provides for a new head of civil/tort claims in respect of harassment. Civil/tortious liability will arise when a person embarks upon a “course of conduct” that “amounts to harassment of another”. Although harassment is not defined by the 1997 Act, the House of Lords ruled that harassment would include causing anxiety or distress”. In fact, Section 3 of the 1997 Act permits the recovery of damages in respect of anxiety and distress resulting from harassment. Moreover Section 7 (2) provides that harassment includes “alarming the person or causing the person distress”. Section 7(2) would certainly include the silent telephone calls as well as the false report that Ben’s wife was in the emergency room of the hospital. On the facts of the case for discussion, Ben has certainly suffered what can be described as anxiety or distress since he became a nervous wreck and had to time off from work. The fact that he fabricated an excuse by asking his doctor to sign a sick note indicating that he had a bad back is evidence of the degree of distress Ben suffered. Ben was clearly attempting to come up with what he perceived was a plausible excuse to take time off work. Ben can also substantiate harassment by Amir under Section 7(3) which describes a “course of conduct” as involving “at least two” incidents. Even so, it was held in Banks v Ablex Ltd., that the course of conduct must be persistent.10 There is little doubt that Amir’s conduct was persistent. Despite previous complaints made by Ben, his conduct intensified. Even after Ben took time off from work as a result of Amir’s harassment, Amir persisted in his harassment. The course of conduct will include each of the incidents described in the case for discussion, including the text messaging as “conduct includes speech”. The case of Green v DB Group Services (UK) ltd.[2006] EWHC 1898 provides more substantiation of Ben’s claim of harassment and/or bullying in the workplace. Relying on the Majrowski the court in Green emphasized that in order to succeed on a claim of harassment pursuant to the Protection from Harassment Act 1997, the claimant must prove that the distress or anxiety claimed was a result of the harassment complained of. The claimant must also demonstrate that the conduct was “calculated in an objective sense to cause distress” and upon an objective view, the conduct was “oppressive and unreasonable.” There is no other way to view the alarming telephone call, the silent telephone calls and locking Ben in a closet. Amir may also face an additional claim from Ben for false imprisonment under the tort of trespass against the person. The tort of false imprisonment is established when the tortfeasor does an act that restrains the free movement of the victim.11 Locking Ben in the store cupboard would have certainly restrained Ben’s freedom of movement. It will make no difference if Amir only restrained Ben for a very short period of time.12 C. Chris Chris’s telephone call to Dorris, although unintended did in fact cause her distress within the meaning of Section 7(2) of the Protection from Harassment Act 1997. All that is required under Section 7(2) is that the tortfeasor’s course of conduct be calculated to alarm the victim or cause the victim distress.13 Certainly the Protection from Harassment Act 1997 has as its goal the creation of both civil and criminal liability for any form of harassment and it does not depend on whether the harassed person is the intended victim or not.14 A telephone message warning Dorris, the unintended victim, to watch her back would certainly constitute harassment, but only if it constituted a course of conduct and was persistent.15 Therefore, Dorris will not have a claim against Chris for harassment since it was an isolated incident. Dorris’s only recourse against Chris in tort, would be a claim for negligently causing her a psychiatric injury. However, it is doubtful that Dorris would be able to satisfy the first pre-condition for such a claim. She would have to prove that she suffered a psychiatric condition that is recognized.16 Being terrified would not amount to a recognizable psychiatric condition. In all the circumstances, Dorris might only have recourse against Chris under criminal law. Chris’s confrontation with Amir may give rise to a claim by Amir of trespass to the person for assault and battery as well as false imprisonment. In the initial confrontation however, Chris did not commit a tort or assault or battery as he only demanded that Amir apologize to his father. Amir was responsible for turning the confrontation into a hostile situation that gave rise to what might amount to assault and battery. It would also appear that Amir committed an assault first. An assault is committed when the victim perceives that immediate physical force is likely. It is not necessary for the victim to be afraid. The victim must simply have a reasonable expectation that battery would ensue.17 Amir had previously told Chris that it was only the fact that others were around that he did not give him a good kicking. Now alone in the toilet and immediately following a scuffle, Chris can be said to have reasonably believed that Amir was going to use physical force. Since Chris’s retaliation is based on the fear that Amir would attack him it does not reach the level of hostility required to render the physical force a battery. It was held in Wilson v Pringle, that the touching must be hostile.18 In the event the court finds that Chris’s fear of an immediate battery was ill-conceived and not reasonable, Chris will be held accountable for Amir’s head injury. A battery does not have to be direct. For instance a mother who was hit dropped her child from the force of the blow. The defendant was liable for battery to the child.19 By analogy, Chris could be liable for the injury to Amir’s head as it was sustained as a result of Chris’s alleged battery. Arguably, Chris faces a tortious claim on Amir’s part for false imprisonment. False imprisonment will arise if any act of the defendant prevents the claimant leaving any location.20 Chris pushed Amir into a cubicle and jammed the door shut. All indications are that by jamming the door, Amir was prevented from leaving. The fact that Amir was unconscious is irrelevant. It remains false imprisonment as long as his freedom to move was totally restrained.21 Chris may have a defence in self-defence against assault, battery and false imprisonment provided he can prove that he reasonably feared Amir would injure him or apply physical force.22 Question 2 A. The Rule in Rylands v Fletcher and Nuisance The law of nuisance and the rule in Rylands v Fletcher both function separate and apart from the general law of negligence. Negligence is not necessary to prove nuisance under the rule in Rylands v Fletcher.23 The fact is negligence does not have to be proved under the rule in Rylands v Fletcher. Rylands v Fletcher is strictly concerned with the escape of noxious substances and not with the conduct of defendants.24 Nuisance too is distinguished from the general law of negligence in that liability is strict and protects interest in land rather than the in the person whereas, negligence relies entirely on fault and protects various interests.25 The rule in Rylands v Fletcher clearly establishes that it serves a function outside of the general law of negligence and as such is necessary to prevent interference with the enjoyment of one’s property. Without the rule in Rylands v Fletcher, there would be no liability unless there was negligence.26 Rylands v Fletcher involved the escape of water onto neighbouring land. Essentially the rule in Rylands v Fletcher was expressed by Blackburn J as follows: The person who brings on his land for his own purposes, and collects and keeps there, anything liable to do mischief if it escapes, must keep it in at his peril.27 The rule in Rylands v Fletcher is therefore independent of the general law of negligence and will expose a defendant to liability regardless of negligence. Expansion of the rule however, has created some overlaps with the general law of negligence. For instance in Cambridge Water v Counties Leather the court expanded the rule in Rylands v Flecther by requiring, as with under the tort of nuisance, foreseeability of damages in order to substantiate liability.28 In other words, as with the general law of negligence, remoteness of damage is relevant to a claim under the rule in Rylands v Fletcher and a claim for nuisance. Moreover, the plaintiff claiming damages under nuisance or under the rule in Rylands v Fletcher must demonstrate that the use of the land was non-natural.29 Again, this expansion of the rule in Rylands v Fletcher point to some element of fault-based liability as would generally be found under the general law of negligence. Even so, the rule does not subject the claimant to the kind of explicit test that are required under the general law of negligence. While remoteness of damage and unreasonable or non-natural use of the land are essential prerequisites, it is far easier to succeed under the rule in Rylands v Fletcher than it is to succeed under the general law of negligence. This is a manifestation of the significance attached to the protection of one’s property and privacy under Article 8 of the European Convention on Human Rights. The House of Lords reminds of the significance of liability for nuisance and liability under the rule in Rylands v Fletcher. In Transco v Stockport MBC, the House of Lords stated that the rule in Rylands v Fletcher was a “sub-set” of the tort of nuisance. While nuisance established liability for interference under circumstances where the interference is continuous or repeated, the rule in Rylands v Flecther was created to deal with a single event. In addition, the House of Lords stated that the rule should only be applied to cases in which the user of land brings onto that land, something that is decidedly dangerous and represents a significant risk to his or her neighbours in the event it escapes. Moreover, the use of the land must be such that it is an exceptionally unusual use of the land.30 In the final analysis, although nuisance and the rule in Rylands v Fletcher overlap with the general law of negligence, this overlap is very limited. It is limited to remoteness of damage and the non-natural or unreasonable use of one’s land. However, a plaintiff making a claim for damages under the rule and in nuisance will not have to go to the trouble that a plaintiff will have to go to under the general law of negligence to substantiate a claim. The rule in Rylands v Fletcher and the tort of nuisance are essential as torts separate and apart from the general law of negligence because they will encourage a land user to use his or her land responsibly. B. The Law of Defamation The purpose of the law of defamation is to protect against the wrongful harm to an individual’s reputation.31 The operative phrase here is wrongful harm. The courts have achieved this purpose by defining defamation as the “publication” of a false statement about an individual that has a tendency to impugn his or her reputation “in the opinion of right-thinking members of the community”.32 It therefore follows from this definition of defamation that the law of defamation operates to compensate an individual only if an untrue statement causes harm to the reputation of an individual in the view of others. If an untrue statement is not heard by others and does not harm the reputation on the claimant, there can be no recovery under the law of defamation. The law of defamation achieves its protective purpose by dividing defamation into two categories: libel and slander. These are the two ways that an individual’s character can be impugned. Libel is the broadcasting or printing of untrue harmful statements and is actionable per se.33 Obviously, if an untrue statement that impugns the reputation of an individual is published in print or by virtue of broadcast, it will undoubted reach a number of persons and harm the reputation of the subject. It is therefore only right that libel is actionable per se. Slander occurs when the untrue harmful statement is spoken in the presence of others.34 Slander too can be actionable per se. In Say v British Gas Limited, the claimant’s gas was disconnected at his place of business in the presence of customers in respect of an outstanding account that was not the claimant’s. The clerk sent out by the defendant to disconnect the gas supply made statements indicating that the plaintiff had been running his business poorly by using energy although he could not afford it and by doing so was acting “dishonourably”.35 The court ruled that the statements made by the defendant’s clerk were designed to impugn the plaintiff in “his business”.36 Moreover, the statements were false since it was not the plaintiff’s outstanding bill. The gas was disconnected, not because the plaintiff had failed to discharge a debt, but because the previous occupant had failed to do so. As a result the plaintiff was entitled to damages for slander per se.37 The law of defamation would not serve its purpose of protecting an individual’s reputation unless the defendant had a good or fair reputation to begin with. To accomplish this, the law of defamation provides for specific defences to defamation claims. They are: truth or justification; fair comment; absolute or qualified privilege; and innocent dissemination.38 In addition to ensuring that an individual’s reputation is not protected in a disproportionate manner by virtue of permitting defences, the courts also try to manage the quantity of damages awarded. For instance in Rantzen v Mirror Group Newspaper, the Court of Appeal ruled that in instructing juries, the trial judge should caution jurors to ensure that the damages awarded are consistent with the plaintiff’s reputation and the harm suffered.39 It therefore follows that the law of defamation sets out to achieve its objective of protecting the reputation of individuals in ways that are arguably successful. First the law of defamation ensures that the claimant has a reputation worthy of protecting in the first place. Secondly, it ensures that damages awarded are such that they are proportionate to the reputation and the degree of imputation. Essentially, the law of defamation will not function to merely protect the individual’s feelings. The law of defamation looks primarily at how the individual is viewed by others as a result of the imputation. C. Occupier’s Liability Occupier’s liability falls under the Occupiers’ Liability Act 1984 and Occupiers’ Liability Act 1957. The 1957 Act refers to the duty of care owed to visitors and the 1984 Act refers to the duty of care owed to non-visitors (trespassers).The duty is expressed in Section 1(3) of the 1984 Act as a duty to safeguard against the risk of harm to trespassers if the occupier is “aware of the danger” or reasonably believes a danger exists” or : He knows or has reasonable grounds to believe that the other is in the vicinity of the danger concerned or that he may come into the vicinity of the danger (in either case, whether the other has lawful authority for being in that vicinity or not); and the risk is one against which, in all the circumstances of the case, he may reasonably be expected to offer the other some protection.40 The duty of care to visitors as expressed in the Occupiers’ Liability Act 1957 is one of a “common duty of care.”41 The common duty of care is as duty “to take such care as in all the circumstances” “is reasonable” to ensure that visitors are “reasonably safe” while “using the premises for the purpose for which they are invited or permitted” to be on the premises.42 The common duty of care however, can be waived if the visitor is competent and agrees to accept the risks.43 As for children, occupiers are expected to take greater care in safeguarding against the risk of harm to children than they would adults.44 The common duty of care owed to a visitor can be discharged by adequately warning the visitor of any risks on the premises.45 Similarly, an occupier can avoid liability for harm to a non-visitor by issuing an adequate warning of the danger. In Westwood v Post Office, the court ruled that a warning attached to a door stating that only an “authorised attendant” was allowed entry was sufficient to notify a person of average intelligence of going beyond the door could be dangerous and that they should therefore stay away.46 Harpwood explains that warning notices are not the only ways that occupiers can discharge the duty of care to avoid the risk of harm to visitors and non-visitors. Ultimately, occupiers can take steps calculated to discourage visitors and non-visitors taking the risks associated with the danger. This can be accomplished in a variety of ways but must not include the use of methods that might cause harm. For instance an occupier would not discharge its statutory duty to a trespasser by setting man traps. Cordoning off a potentially dangerous location on the premises would be sufficient to discharge the statutory duty of care to both visitors and non-visitors.47 Just as occupiers owe a duty of special care under the Occupiers’ Liability Act 1957 in respect of children, occupiers also owe a special duty of care to children characterised as non-visitors under the Occupiers’ Liability Act 1984. In this regard, while cordoning off a dangerous area on the premises will be enough to discharge the duty of care to safeguard against the risk of harm to adult visitors and non-visitors it will most likely not be enough with respect to children. The fact is it is well known that children will climb fences.48 In all circumstances however, an occupier will not have a duty to discharge to a non-visitor unless the occupier has reason to believe that the non-visitor is in or will be in the area where the danger exist. For example, the plaintiff sustained injuries after taking an unauthorized shortcut on a pavement on the defendant’s property. The judge at first instance ruled that the occupier had no reason to believe that the plaintiff would be in the area of the danger.49 Bibliography Textbooks Elworth, S. and Holder, J. Environmental Protection: Text and Materials. (Cambridge University Press 1998). Harpwood, V. Modern Tort Law. (Taylor and Francis 2008). Heuston, R. and Buckley, R. Salmond and Heuston on the Law of Torts. (21st Ed. Sweet and Maxwell, 1996). Holland, J. and Burnett, S. Employment Law 2008. (Oxford University Press, 2009). Rush, J. and Ottely, M. Business Law. (Cengage Learning 2010). Waite, A. ‘Deconstructing the Rule in Rylands v Fletcher.’ (2006) 18(3) Journal of Environmental Law, 423-442. Articles/Journals Cuttenden, T. and Atkinson, C.‘DIY Harassment Law.’ (Jan 2007) 5 New Law Journal, 19. Glofcheski, R. ‘A Frolic in the Law of Tort: Expanding the Scope of Employers’ Vicarious Liability’. (2004) 12 Tort Law Rev. 1-23. Jones, H. and Benson, C. Publishing Law. (Taylor and Francis 2006). Middlemiss, S. ‘Liability of Employers under the Protection from Harassment Act 1997’. (2006) 10 Edin Law Review, 307-309. Post, R. ‘The Social Foundations of Defamation Law: Reputation and the Constitution.’ (1986) 74 California Law Review, 691-742. Table of Cases Austin and Another v Commissioner of Police for the Metropolis [2007] EWCA Civ 989. Banks v Ablex Ltd. [2005] EWCA Civ 173. Cambridge Water v Eastern Counties Leather [1994] 1 All ER 53. Goldsmith v Bhoyrul [1997] 4 All ER 268. Green v DB Group Services (UK) ltd.[2006] EWHC 1898. Haystead v Chief Constable of Derbyshire [2000] 3 All ER 890. Hinz v Berry [1970] 2 QB 40. Holden v Chief Constable of Lancashire [1987] QB 380. Lane v Holloway [1968] 1 QB 379. Lister v Hesley Hall Ltd. [2002] 1 AC 215. Majrowski v Guy’s and St. Thomas NHS Trust [2006] UKHL 34. Maloney v Torfaen County Borough Council [2005] EWCA Civ 1762. Rantzen v Mirror Group Newspaper [1994] QB 670. Read v J. Lyons and Co. Ltd. [1947] A.C. 156. Rylands v Fletcher [1866] LR 1 EX 265. Say v British Gas Limited [2011] All ER 216. Sim v Stretch [1936] 2 ALL ER 1237. Stephens v Myers [1830] 4 C and P 349. Transco v Stockport MBC [2003] 3 WLR 1467. Westwood v Post Office [1973] 1 All ER 184. While v Mellin [1895] AC 154. Wilson v Pringle [1986] 2 All ER 440. Table of Statutes Occupiers’ Liability Act 1984. Occupiers’ Liability Act 1957. Protection from Harassment Act 1997 Read More