Injuries and losses during the 2012 Olympics - Essay Example

Cowbell, Cole and Walsh 9 January, Re: Olympic Games/London Opinion The case brief reveals that a number of arrivals as the training facilities and the site of the Olympics in anticipation of the 2012 Olympics have culminated in numerous injuries and losses. The case brief also reveals that there are a number of possible claims under the ambit of occupiers’ liability together with damages under the egg shell skull rule and for nervous shock. Possible defences of, remoteness of damanges, contributory negligence and non volenti fit injuria may also apply to the possible claims.1 Each of the possible claims and corresponding defences are discussed in greater detail below. Occupiers’ Liability Since the Olympic site has been opened to visitors and athletes for ticket sales and athletes’ training, the persons at the site are presumed to be lawful visitors to the site. As a result the rights of the various athletes and visitors at the site, and the duty toward the safety of those lawfully at the site are covered by the Occupiers’ Liability Act 1957.2 By virtue of Section 2(1) of the 1957 Act, occupiers owe a “common duty of care to all his visitors” unless that duty is restricted or waived “by agreement or otherwise”.3 To this end it is first necessary to identify who is the occupier or occupiers of the Olympic site and thus who would be the possible defendants in a claim by the possible plaintiffs. An occupier is any person or official body or agent with control of the premises in question.4 It was also held in Wheat v E Lacon & Co. Ltd that it is possible for there to be more than a single occupier of a given property.5 Thus an employee in sufficient control of the premises can be an occupier together with an employer and an owner. Moreover, the owner need not be present to incur liability for damages to a lawful visitor.6 Based on the definition of occupier, it would appear that liability is shared jointly and severally between the various ticket vendors, the employees operating the various facilities and the owners of the Olympic site. The extent of the duty of care is described by Section 2(2) of the 1957 Act. The duty is a duty to take reasonable precautions to render the premises “reasonably safe” for visitors who are lawfully on the premises.7 The duty is generally discharged by posting conspicuous warnings of any pending or possible dangers to the safety of visitors lawfully on the premises.8 A mere warning that an event on the premises is dangerous would be sufficient to discharge the statutory duty of care.9 However, there appears to be no warning signs posted and as a result, Peter’s injury is indefensible on the grounds that the various occupiers did not take precautions to warn the possible plaintiffs of the dangers associated with the use of the Olympic site. Some precautions were taken with respect to barricading the ticket queues, but those barricades ultimately collapsed so that the question is whether or not those precautions were sufficient to safeguard against the incident of collapse and the resulting injuries suffered by various visitors queuing up to purchase tickets. Therefore while barricading the ticket queues may have been a sufficient precaution or warning of the dangers of the crowds, the main question is whether or not the warning or precaution was sufficient to discharge the statutory duty of care.10 It would appear that the precautionary measures taken by the police were insufficient to safeguard against the risk of harm attending the large crowds queuing up for the purchase of tickets. Remoteness of Damages Causation would be established by virtue of the fact that the occupiers of the Olympic site had a statutory duty to ensure that the safety of the visitors were provided for or that sufficient warning was provided to permit the visitors to remain safe. As established above, failure to discharge the statutory duty will amount to actionable negligence. However, if the defendants can demonstrate that damages sustained were not a reasonably foreseeable result of their negligence the various claimants will not succeed.11 Essentially, once the damages sustained are of the kind that the defendants should have reasonably foreseen, the defendant will be held liable for the ensuing damages to the plaintiffs.12 Peter’s injury in particular is arguably of the kind that the occupiers and thus defendants should have reasonably foreseen. To begin with, athletes were present practicing and training for the Olympics and thus possible injuries to bystanders and non-participating athletes was a real possibility. Moreover, with the javelin premises closed for safety reasons, the occupiers should have contemplated that javelin training would be conducted elsewhere on the premises. Indeed Jack used the areas cordoned off for athletes to warm up for training sessions. In the absence of restrictions against using the facilities for actual training, the occupiers could have most certainly contemplated that Olympians who did not have access to other training facilities would use the warm-up area to train and thus the damagers sustained by Peter were not remote. The fact is, Peter and Jack were using the premises in a manner that is consistent with the purposes for which they were permitted to use the premises. The fact that Peter ultimately suffered damages that were not remote renders the occupiers liable.13 Therefore although Peter cannot claim damages on the basis that he would have won the gold medal, he may claim damages for a loss of the chance to participate in the Olympics and to compete for the gold medal.14 Likewise the rush for tickets at the ticket sale and the ensuing damages were not remote. It was contemplated that there would be a rush to obtain tickets and indeed there was. The fact that a rush was contemplated is evidenced by the fact that the police put up safety barriers to safeguard against the dangers of the impending crowds seeking to purchase tickets. The basic test relative to the remoteness of damages is whether or not the damages sustained were of the kind that could have reasonably been foreseen.15 Certainly it would have been foreseen that persons attending the ticket sales would have been damaged and that children would have been separated from their parents/guardians as in Julie’s case. The test will likewise be applied to the damages arising out of the fire emanating from the accident during the lighting of the Olympic torch practice session. Would a fire of the kind that actually occurred have been reasonably foreseeable? Certainly the fire itself was reasonably foreseeable, as the practice session involved fire. Thus, the main question is whether or not the precautions were sufficient to discharge the duty of care to ensure the safety of lawful visitors. The fire department was called and thus the question is whether or not the fire department could have reasonably foreseen that a spark could have escaped and caused a fire of the kind that occurred later on. According to the ruling in Jolley v Sutton London Borough Council [2000] 1 WLR 1082 it is not necessary that the exact damages be foreseen. Specifically, it is not necessary for the plaintiff to prove that the severity of the damages was foreseen or that the exact manner in which the damages occurred had been foreseen. It is only necessary to show that the damages incurred were of the type that could have reasonably been foreseen even if they occurred in an entirely unexpected manner or was were more serious than contemplated.16 Thus it is within the realm of possibilities that a fire once started and treated could be reignited and that persons caught in a fire would attempt to escape and others would attempt to rescue others and that 3rd degree burns and other injuries would occur. Thus the wide range of damages including the damagers to Rashid and Anton (the volunteer) were damages that were reasonably foreseeable and thus the volunteers are liable for the damages resulting form and incidental to the fires and the ticket queues. Egg Shell Skull Rule The egg shell skull rule applies in situations where a plaintiff’s injury is only caused by or exacerbated by a pre-existing vulnerability to injury that an otherwise normal plaintiff would not have incurred.17 The egg shell skull rule firmly establishes that once the defendant is negligent, despite the fact that the victim’s specific vulnerability is not reasonably foreseen, the defendant is nonetheless liable for the injury.18 Rashid’s existing bone condition renders him paralyzed as a result of being crushed by the crowds at the Olympic sites. Rashid has also been informed that he would have made a full recovery had he not suffered from the bone disease. However, based on the ruling in Robinson v Post Office, the occupiers are liable for the damages sustained by Rashid nonetheless under the egg shell skull rule. As a result, Rashid is entitled to damages for loss of income and the damages applicable to his dependents since he was the primary source of financial support to his wife and two children.19 The fact is, under the egg shell skull rule the plaintiff is entitled to his actual losses and this would include the loss of his support to his dependents. Contributory Negligence It is possible that the occupiers may seek to rely on the defence of contributory negligence as a means of sharing or reducing liability. Pursuant to the Law Reform (Contributory Negligence) Act 1945 the courts may share or apportion liability for damages. A plaintiff’s own conduct or omissions may be deemed to have contributed to the injuries at the time that the courts consider compensation.20 In such a case the actual damages awarded will be reduced to reflect the plaintiff’s contribution to the damages. Denning LJ explained that contributory negligence is established when the individual: ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless.21 In this regard, Penelope may find that any award of damage that she might have for nervous shock may be reduced by the fact that she should have been aware of the dangers involved in taking her child to the ticket queue for the men’s 100 metre race since the rush for the tickets had been previously broadcast. Others sustaining damages as a result of the dangers implicit in ticket queues may also find that their damages may be reduced by virtue of their conduct which ultimately brought the safety barriers down. Volenti non Fit Injuria The defence of volenti no fit inujuria is available where the defendant can show that the plaintiff consented to the risk of harm and thus cannot subsequently complain of the harm suffered. However, Denning LJ held that: Knowledge of the risk of injury is not enough. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree expressly or impliedly to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant: or more accurately due to the failure by the defendant to measure up to the duty of care which the law requires of him.22 Moreover, the plaintiff must be shown to have full knowledge of the degree of the risk that they exposed themselves to.23 Thus considering that the athletes and the visitors were visiting the facilities prior to the actual sporting events and only in preparation for and for the purchase of tickets it is implausible that they would have foreseen or expected to suffer or sustain injuries and thus it is unlikely that they had full knowledge of the degree of harm that actually resulted from training and purchasing tickets. The harm that actually resulted in most cases were totally unrelated to actual sporting events. Only the accident involving Peter’s javelin training may have been reasonably foreseeable. However, the requirement of implicit or express consent to harm does not appear to be present. Considering that the athletes were contemplating getting fit and conditioned for actual competition it is doubtful that they would have implicitly or expressly consented to the risk of harm as a result of negligence. Moreover, the rescuers/volunteers will not be deemed to have accepted the risk by rescuing persons from the fire. It was held in Baker v TE Hopkins & Sons Ltd. that rescuers are not deemed to have voluntarily submitted to the risk of harm.24 In all the circumstances, the defence of volenti no fit injuria will not likely succeed. Nervous Shock Once negligence is established on the part of the occupiers, the claimants are entitled to recover all damages emanating from the negligence and compensation for injuries consequential to the negligence. Since all of the potential claimants are visitors lawfully on the premises they are each entitled to protection from harm resulting from negligence of those in control of the Olympic site. In this regard, all damages that are general and quantifiable are recoverable. There is one caveat, and that is that the damages can be supported by proof.25 In this regard, Penelope’s mental distress and Rashid’s deep depression must rise to the level of psychiatric injury usually referred to as nervous shock in order to provide proof of recoverable damages. Thus Penelope and Rashid would have to obtain medical evidence of psychiatric harm in order to recover damages for mental distress and depression.26 For Penelope, the right to recover damages for mental distress may be more difficult that for Rashid. Penelope only has mental distress to claim, whereas, Rashid has other damages since he was paralyzed. When mental distress is the only damages claimed it is much more difficult to succeed. However, when mental distress is claimed in conjunction with physical damages, mental distress can be successfully claimed. It has been stated that: Whilst there is no evidence to support a right to claim such damages in their own right, there is sufficient authority for a separate head of damages as part of the claimant’s general compensatory claim.27 It would therefore appear that while it appears that Penelope has little hope of succeeding in a claim for nervous shock, it is far more likely that Rashid will succeed. His physical condition may be said have made his mental condition more fragile and as such, having heard of and not witnessed the actual death of his loved one is sufficient to substantiate a claim for nervous shock provided he obtains the requisite medical evidence to support it. His proximity to his uncle in terms of relationship is sufficient to support a claim for nervous shock upon hearing of rather than witnessing his uncle’s death. Rashid’s proximity to the events that caused his uncle’s death should suffice. Conclusion In the final analysis, the events that occurred at the Olympic site were the result of negligence on the part of the occupiers. Moreover, the damage were not remote in that they were of the kind reasonably foreseeable in the event of negligence. The persons suffering harm were lawful visitors to the site. Therefore the occupiers had both a common law and statutory duty to safeguard against or minimize the risk of harm to the visitors. Since the occupiers failed to do so, they are liable for the damages sustained. The occupiers may however successfully claim a defence of contributory negligence against the crowds at the ticket queue independent of the fire and Penelope. Otherwise, the occupiers are liable for damages fully in all other cases. Bibliography Textbooks Harpwood, V. Modern Tort Law, (Oxon, UK: Routledge-Cavendish, 7th Edition, 2009). Mulcahy, L. and Tillotson, J. Contract Law in Perspective. (London, UK: Cavendish, 2004). Articles/Journals Gillier, P. ‘A ‘New’ Head of Damages: Damages for Mental Distress in the English Law of Torts.’ (March 2000) 20(1) Legal Studies, Vol. 20(1): 19-41, 19. Jaffey, A.J.E. ‘Volenti Non Fit Injuria’. (1985) 44 The Cambridge Law Journal, 87-110. Cases Baker v TE Hopkins & Sons Ltd. [1959] 1 WLR 966. Crossley v Rawlinson [1981] 3 All ER 674. Harris v Birkenhead Corpn [1976] 1 All ER 1001. Jolley v Sutton London Borough Council [2000] 1 WLR 1082. Jones v Livox Quarries [1952] 2 QB 608. Lagden v O’Connor [2003] UKHL 64. Margereson v JW Roberts Ltd, Hancok, v Same [1996] PIQR P358. Nettleship v Weston [1971] 3 WLR 370. Revill v Newbury [1966] 1 All ER 291. Robinson v Post Office [1974] 2 All ER 737. Spring v Guardian Assurance Plc [1995] 2 AC 996. The Wagon Mound (No.1) [1961] 1 AC 388. Wheat v E Lacon & Co. Ltd [1966] AC 522. White v Blackmore [1972] 3 All ER 158. Wooldridge v Sumner & Anor [1963] 2 QB 43. Statutes Law Reform (Contributory Negligence) Act 1945. Occupiers’ Liability Act 1957. Read More