Reparation Law and Evidence - Coursework Example

? Reparation and Evidence Law Paper Word Count: 3,477 Introduction This document examines a case in a relation to Susan, an management consultant employed by the firm K2 Management Services (K2MS). In a project with ISH-BETH, Susan works off site. At ISH-BETH's premises, Susan encounters an accident because ISH-BETH was undertaking a repair work. The incident causes Susan and Mark to sustain some injuries. In a chain of events, Susan's accident leads to a further issue that interrupts the electricity flow of the company and causes her to lose work meant for the client, ISH-BETH. This paper examines the core legal elements and facts relating to the situation and provides the various claims and defences that can be raised by the four core parties in the case. Broad Legal Context The law of tort revolves around the need for people to be responsible for their actions and ensure that their actions do not affect people negatively. The law of tort is steeped in the concept of good neighbourliness which requires people to be more careful about the implications of their actions to other people in the wider society1. There are five main components of the law of tort which gives rise to a tort and are important in determining the outcome of civil proceedings to tort cases2: 1. Recoverable loss: There must be some damage, injury or loss that can be valued and recovered. 2. Duty of care: The aggrieved party must have had some duty of care from the accused person. 3. Breach of Duty: The duty of care must be disregarded 4. Loss or Damage: The disregard of the duty of care and the loss must have led to some degree of loss or damage. 5. Foreseeability of the Loss: The loss should have been known or anticipated by a reasonable person. This report would therefore analyse all the different components of the study and this would lead to different assessments of the obligations, rights and their limits in terms of the relevant actions or inactions. ISH-BETH In terms of ISH-BETH, there are two areas in the Law of Tort that created issues in this case which are worth discussing. The issues are: 1. Whether the repair of the office heating system was done in the right way and manner to avoid a tort action by Susan and Mark or not. 2. The position of the loss of files caused by the accident and whether K2MS is responsible for liabilities for losing the file or not. In analysing the issues, it appears that ISH-BETH has a direct duty of care towards employing the two men who were fixing the air conditioners. Hence, they have an obligation towards them and their actions. In terms of the files, it appears that K2MS had a direct obligation towards ISH-BETH. And Susan's actions created a vicarious liability for K2MS. . It can therefore be inferred that the contract of delivering the project to ISH-BETH is the fundamental obligation of K2Management and not Susan3. Due to that, we will treat it under the aegis of K2Management and not under Susan's obligations since she is an employee and has no direct contract with ISH-BETH Rules Relating to the Slippery Floor The rules of Donoghue V Stevenson4 spell out the universal rules for dealing with tort and this indicates that the impact of a person's actions have an effect on his neighbours and due to this, there is the need for a duty of care to be placed on on persons to promote responsible behaviour. This means that there is the need for some standard of care to be imposed where there is a foreseeable damage or injury. Failure to do so will mean that the affected person can bring an action for negligence on the part of the perpetrator. In a workplace, the employer has certain obligations which imposes an inherent duty of care on the employer who controls the premises. First of all, the employer has a Common Law duty to ensure the safety of employees on his premises. The Health and Safety Act 1974 requires employers to meet some standard measures in the workplace to ensure that the the place is safe for all workers. The employee will have to balance the foreseeability of risk against the measure to eliminate it and provide the right atmosphere for employees. In the case of Latimer V DEC Ltd5, the floor of a factory had been flooded by a rainstorm. Due to this, oily substance had risen over the area and filled the factory premises. The employer had limited sawdust but he spread it on the floor. The claimant slipped and got injured. He stated that the employers had the duty of care of ensuring that the factory was closed until it was safe to be used. The House of Lords identified that there is no evidence that the employers failed to maintain a safe premises. They argued that in fulfilling the duty of keeping the premises safe, employers had to take measures to avoid injury that was reasonably foreseeable. However, this was to be limited to the resources available at its disposal. Thus foreseeable damages should be balanced against reasonable measures to deal with them. The Status of the Heating Engineers Another significant issue is the position of the two heating engineers and their role. Whether they are to be considered employees or independent contractors will be based on their four main things: the control, integration into the business, interpersonal tasks and whether they are working on 'loan' or not6. Application to K2Management Services From this case, it appears that ISH-BETH had sufficient control over Jack and Gordon, the heating engineers. This is because they were working on ISH-BETH's premises and as such, their work was integrated into the operations of ISH-BETH and they were acting as employees. This is justified by the precedence set in the case of Hawley V Liminar Leisure7 where it was held that the manager of a nightclub was responsible for the conduct of a security personnel who was supposed to provide labour from a different recruitment company. In likewise manner, it can be said that the two heating engineers were working under the control and aegis of the management of K2MS. Due to this, the heating engineers were acting in the place of their 'legal employers' ISH-BETH and the management of ISH-BETH should have taken reasonable steps to control affairs whilst they were operating on the premises of the company. This therefore suggests that ISH-BETH had a duty of care to ensure that everything on the premises was carried out according to specification and the required level. This standard of care is similar to the case of Muir V Glasgow Corporation8 whereby children were allowed to take refuge from the rain in the premises of Glasgow Corporation. However, in the premises, someone spilled hot water which scalded some of the children. The court held that the fact that the Glasgow Corporation opened its door to the children, they should have taken reasonable care to ensure that all of the children were safe inside the premises. The manageress of Glasgow Corporation argued that she assumed that the person holding the hot water would have been careful enough. And although she had a standard of care imposed on her, she could get a defence for the injuries that occurred. So in this case, it is apparent that ISH-BETH had a standard of care to adhere to. This is because they have a Common Law and Statutory obligation to ensure the health and safety of workers. From the case though, it appears that although there was no direct supervision of the two heating engineers, the engineers took reasonable steps to put up warning triangles. When th0e principle of Latimer V DEC Ltd is invoked here, it appears that ISH-BETH had a minimum obligation of ensuring that the premises were safe. And in doing this, ISH-BETH did not have any direct obligation to prevent injuries. In spite of this, the two heating engineers went the extra mile to ensure that triangles were placed at the point that relevant leakages could occur. This shows that they honoured their standard of care and balanced all foreseeable risks with measures to eliminate it9. Conclusion on ISH-BETH's Position Susan and Mark can sue ISH-BETH. This is because ISH-BETH had a Common Law duty of ensuring that their premises were safe for usage by their employees, which includes Susan and Mark. This Common Law position is strengthened by statutes like the Health and Safety Act 1974 which was not duly adhered to. It is clear that ISH-BETH bears vicarious liability for the heating engineers because they are employed on their premises and should have had some more control over them. This imposed a standard of care on them to protect the lives of their employees. In carrying out their activity, they took reasonable care to warn employees by placing triangles. This provides a strong defence for ISH-BETH against the injuries and damages caused by the injuries of their staff members. K2MS ISH- BETH lost a file and had to pay a contractual damage for their failure to submit the document. There are several issues that need to be examined to identify the legal components and also find the possible defences and claims that can be made against her. They include: 1. The legal scope of this issue, whether it can be treated under the law of tort or the law of contract. 2. The liabilities of K2MS in a tort case and 3. The kind of damages and their assessment in this case. Law of Tort Versus Law of Contract Basically, unless a tort is not consistent with a contract, the parties can take up a delicit case in court when there is a breach which leads to issues10. The only issue that can prevent a tortous act in the case of an alleged breach of a contract is where the contract limited the losses through a valid condition in the terms of the contract11. However, this must be within the scope of the Unfair Terms of Contracts Act 1977 and other related statutes. In this case, ISH-BETH has the right to raise this fundamental breach of contract in court through a civil proceeding. This is because aside the binding terms of the contract that was breached, there were foreseeable damages which could have only been avoided if they had carried out the contract. Thus, ISH-BETH can come up with a tort claim for damages for these losses that they suffered. Liabilities of K2MS Susan was an employee for K2MS. And due to that, she had a direct obligation to deliver and provide results for her employers. As an employee, she had a contract of service as an employee and her actions create vicarious liabilities for K2MS. Thus, K2MS had to control and ensure that Susan worked to meet the right obligations and standards. The court will place a standard of care on K2MS for the provision of the file for ISH-BETH to meet its obligations. The rule from Caparo V Dickman12 indicates that there should be a duty of care between the parties and the duty of care must have been breached and it should be just and fair to impose a duty of care. The fact that K2MS and ISH-BETH were in a contract provides sufficient grounds for a tort case. In the case of Paris V Stephney Borough Council13 employers of a mechanic who was blind in one eye followed standard industry practice and allowed him to work without goggles even though they knew he was in a higher risk than a person not blind in one eye. The man got involved in an accident and he got blinded in his second eye. It was held that the employers should have known that the man was exposed to a more severe risk and they should have minimized it by insist on him using a goggle. In line with this, K2MS should have also put in place measures to ensure that the files that Susan was working on was saved appropriately. This was the standard of care that was expected of K2MS because they had a contractual obligation to ensure that the work was delivered on time. And this is a case where they failed so they are liable for the failure to meet their duty of care. Assessment of Damages. The loss of the file is likely to cause so much issues to ISH-BETH. This could include loss of work time, loss of a business partner and other things. However, under the Law of Tort, the claims for damages should not include pure economic loss. In the famous case of Spartan Steel and Alloys Ltd. v Martin & Co. (Contractors) Ltd14 it was held that a case should make a distinction between pure economic losses and direct loss of property as a result of the tortous claim. Pure economic loss involves indeterminate claims over an indeterminate time frame which was not known to the defendant15 Conclusion on ISH-BETH's Claim ISH-BETH can raise a case for the recovery of the loss that they incurred in the form of the penalty they are to pay for K2MS's failure to deliver the material on time. This means that the defined loss which relates to the penalty can be claimed from K2MS. However, this does not include other economic losses like idle time and other loss of opportunities that are not directly identifiable and attributable to the incident. Mark's Injuries In the case of Mark, there are several issues and pointers that need to be examined to ascertain the legal obligations under the law of tort. The first issue relates to the question of who bears the obligation for the extensive burns and shock he suffered as a result of the spill that Susan's fall occurred. Secondly, there is the issue of a possible contributory negligence which resulted from Mark engaging Susan in a conversation which caused her to lose sight of the warning triangles. Thirdly, in the case of the motor accident that Mark suffered, there are issues relating to the driver's obligations and Mark's choice to voluntarily discharge himself from the hospital. Assessment of Causation In English Law, there is a cause in fact and a cause in law16. Cause in fact refers to the situation whereby a given damage or injury would not have occurred if the defendant had not done what he did. Cause in law refers to an act or omission that played a significant role in causing the claimant to suffer some damages or injury. In both cases there must be some action that significantly created a direct situation which caused the injury or damage. Mark's injury was caused by the accident involving Sarah. However, it appears that Sarah also did this because there was a situation outside her control and she can argue on the premise of novus actus interveniens. It is however clear that the accident of Mark was caused by Sarah and he has a claim on ISH-BETH for their inability to maintain a safe premises for him and Sarah as employees. Mark and Susan's Chat It can be argued that Mark and Susan were busy chatting and this disrupted Susan from seeing the warning triangles that the heating engineers had erected. It is apparent that without the distraction of the chat, Susan would have been able to identify the triangles and its limitations. This would have prevented the accident. In this sense, it can be said that there was a case of contributory negligence. Okrent identifies that in Common Law, the plaintiff has a primary duty of caring for himself and this means that he needs to take reasonable steps to avoid damages and injuries17. Failure to do so will result in the case of contributory negligence. The Law Reform (Contributory Negligence Act) of 1945 specified that the court can reduce the damages to be awarded to a claimant on the basis of the percentage of contributory negligence that can be attributed to the claimant's actions. This will be done by examining the level of contribution made by the claimant to the damage and the blameworthiness of the claimant18. Mark's Road Accident In the case of Waugh V James K. Allan Ltd19, G suffered a stomach upset. He recovered and continued driving. It later resurfaced as a heart attack and he died behind the steer. In the process, he veered off the road and hit the claimant. It was held that if G had realized that the first stomach upset would be a heart attack, he would have been in voluntary breach of his duty of care. However, in this case, he did not know it. Also, the principle of novus actus interveniens is applicable to Mark's road accident. The principle implies that a new incident that causes a separate injury does not cancel the previous injuries. Also, the egg-skull theory can be invoked in this matter and the defendant should take his victim as he finds him20. Case Analysis of Mark's Situation From this case, it appears that the burns that Mark suffered are directly attributable to Susan's accident. The principle of proximity in analysing causation indicates that Susan was the direct cause of Mark's accident. However, since Susan was not in the position to exercise due care since she was in the process of falling when the coffee spilled on Mark, she cannot be held fully liable for Mark's situation. Being an employee of ISH-BETH, the obligation falls upon the management of ISH-BETH who had a duty of care under the principle of occupier's liability. Hence, Mark can lay claims against ISH-BETH for failing to realise this. ISH-BETH can argue on the premise of contributory negligence. This is because the people fixing the heater took reasonable steps to warn people using the area of the wet condition of the floor by erecting the triangles. Mark was distracting Susan with a conversation and that caused her to be less careful and this contributed to the accident. Hence, there can be some deduction of awards on the grounds of contributory negligence. In the case of Mark's voluntary discharge from hospital, it is apparent that he knew he was not too well. Yet he defied the need to stay in hospital and get healed. This caused him to walk on the streets in a negligent manner that caused the car to hit him. It is also apparent that the driver of the car took reasonable steps to avoid hitting Mark. This means that he is not liable to a claim under tort because Mark was in voluntary breach of his duty of care to use the streets when he knew he was not too well. Also the driver did all he could to prevent hitting him. In spite of the fact that he has been hit, Mark cannot force ISH-BETH to take responsibility because it was a novus actus interveniens and it should be treated differently in legal terms and must be attributable to the car driver. Susan's Case Although Susan is not an employee of ISH-BETH, her presence there was to work and technically, she was an employee at that time in question. This means she qualifies for all rights of an employee and should have been protected as such. Also, ISH-BETH had an occupiers' liability to protect Susan who was on the premises to work. Although the heating engineers tried to find ways of preventing the fall by providing the triangles to warn her, it seems she has a case because the fall was directly as a result of the wet floor. Under the principle of causa sine qua non21, Susan would not have fallen if the floor was not wet and although they took some precautions to warn her, her fall was directly attributable to the wet floor22. Susan [and Mark] can sue for non-pecuniary loss which will include taking damages for the pain, suffering and loss in amenity23. This would cover the injury and the hearing loss that she has suffered. Also, Susan can sue for pecuniary losses which will include all the bills she has incurred from the hospital bills through to the general damages that would result from the hearing loss and possible reduction in life expectancy24 However, it must be noted that the court might be compelled to reduce the claims of Susan due to her contributory negligence which involved chatting with Mark in the premises when she was fully aware that repairs were going on. Bibliography Books Cathy J. Okrent. Tort and Personal Injury Law (3Edn, Mason, OH: Cengage, 2009) James Quincy Beatson, Anson's Law of Contract (27th Edn, Oxford: Oxford University Press, 1998) John. Sweeney, Law of Tort (2Edn, Oxford: Oxford University Press 2011) Mark Lunney and Ken Oliphant, Tort Law: Text and Materials (3Edn, Oxford: Oxford University Press 2010) Martin. Hunt, Tort (3Edn, London: Sweet and Maxwell, 2010) Vivienne Harpwood, Modern Tort Law (7Edn, Oxford: Routledge-Cavendish, 2009) Journals Norris, Williams, “The Duty of Care to Prevent Personal Injury” (2009) JPI Law 2 114 – 134 Cases Allan V Barclay [1864] 2 M 873 Barnett V Chelsea and Kensington Management Committee [1969] 1 QB 428 Bolton V Stone [1951] AC 850 Caparo V Dickman [1990] 2 AC 605 Donoghue V Stevenson [1932] SC (HC) 31 Green V Sunset and Vine Production Ltd [2010] EWCA Civ 144 Gregg V Scott [2005] 2 AC 176 Hawley V Liminar Leisure [2006] P1QR P17 Henderson V Merrett Syndicates [1995] 2 AC 145 Latimer V DEC Ltd [1953] AC 643 McGhee V National Local Board [1973] SC (HL) 37 Morton V William Dixon Ltd [1909] SC 807 Muir V Glasgow Corporation [1943] SC (HL) 3 Overseas Tankship Ltd V Mount Dock and Emergency Co [1961] AC 388 Paris V Stepney Borough Council [1951] AC 367 Pickett V British Rail Engineering [1980] AC 136 Reid V Rush and Tompkins [1989] 3 A11 ER 228 Robinson V P. E. Jones Ltd [2001] EWCA Civ 9 Rouse V Squires [1973] QB 889 Sayers V Alanlow Urban District [1958] 2 AII ER 342 Simmons V British Steel PLC [2004] UKHL 20 Smith V Leech Brain [1962] 2 QB 405 Waugh V James K Allen Ltd [1964] SC (HL) 102 Statute Health and Safety Act 1974 The Law Reform (Contributory Negligence Act) of 1945 Unfair Contract Terms Act 1977 Read More