WORKING IN THE LAW - Essay Example

? Working in the Law Introduction Contributory negligence is quite a barrier when it comes to seeking justice for many people across the world. The harsh application of the doctrine is unbecoming in cases where a person is capable of avoiding taking responsibility for the injuries he or she causes due to carelessness.1 The denial of recovery to an injured person, even in the least degree, does eliminate the public confidence in the legal systems’ fairness approach to justice. Those who advocate for the abandoning of this doctrine recommend comparative negligence, which is considered more equitable than this.2 When applying contributory negligence, the person who is injured ends up being forced to bear all the losses despite the losses having been caused by a second party’s misconduct.3 The person who is injured in this case assumes the collective burden while the defendant is given a chance to avoid taking personal responsibility for having caused the injury in question4. Spencer Dalyan Vs. Samson Singer This case involved two friends Mr Singer (who is my client, the defendant) and Mr Spencer (the plaintiff). Mr Spencer used to go visit Singer, his friend who was a contractor in Los Angeles. Spencer liked seeing new buildings under construction and would go visit the construction sites even when his friend Singer was absent. At times, Singer would even call Spencer to go and check whether his casual labourers had done the work assigned to them in case Singer was not able to make it to the site. One Friday evening, Spencer went visiting the construction site near some posh neighbourhood he was interested in settling there some day. During this visit, he happened not to inform Singer since it was sort of a routine when he was free and did not see the need to call his friend to inform him of this. Spencer climbed up to the second floor of this new unfinished building to have a clear view of the ocean. Unfortunately, while standing on the edge of the balcony, he happened to step on a wet blast that had been placed some few minutes ago before the workers had closed the work. This happened because he was so curious of the view and forgot to look at where he was stepping. Spencer slid and fell down the building but was lucky to have sustained fractures on his jaw and hand with some bruises on the lower part of the limbs. Court case for contributory negligence Various contributory negligence issues were presented by both parties: Plaintiff Spencer sued his friend Singer for damages since there was no sign indicated that the place should not be accessed until it dries and no wet floor warnings had been put and therefore Singer should foot the bills and pay for contributory negligence by paying damages to injuries sustained by him. The plaintiff Mr Spencer argued that Singer should have put signs to show that the concrete was wet and warn anyone to be careful not to access the floor. Alternatively, he argued that the entrance to the floor with wet concrete should have been sealed. He therefore demanded that Singer takes full responsibility for contributory negligence which led to the injuries. Defendant (my argument) When presenting the case to court against the suit, I argued that the plaintiff was fully responsible for his injuries since they occurred out of personal negligence. I raised various issues to defend my case. First, the claimant was not an employee to my client Mr Singer and therefore not authorized to visit the construction site. This meant that the building was only accessible to the workers of Singer and no other person unless it was completed and opened to the public. Second, the plaintiff neglected the fact that this was a building under construction and therefore wet concrete was inevitable and should have taken time to look at where he stepped first before he made the move. He was hence not concerned with his safety and this negligence led to his slide. Thirdly, the claimant did not even inform the defendant that he was visiting the site in his absence so as he could be briefed on various developments such as the wet concrete and inaccessibility of the second floor. Forth, the interest of Mr Spencer for visiting construction sites was not captured in the contract that Mr Singer had with his client and therefore this could be taken as intentional intrusion. Fifth, there was no evidence to link the claimant’s fall with the defendant since in the first place; the defendant was not even present at the site, a fact which the claimant consented to. Finally, the fact that this was a building under construction, it called for personal safety measures which the claimant ignored. It should be held: The claimant did not take logical and enough responsibility to guarantee his own safety. Evidence that the site was for construction and that the building was still under fresh construction was enough to prove that the claimant was negligent by getting into the building without seeking advice. The fact that the claimant went to the building alone without alerting the defendant shows that he acted out of his own motives and should therefore take responsibility for the injuries. The defendant was found guilty for not putting warning signs at the construction site and for leaving the doors to the wet floor open with no warning of the wet concrete floor. The award should therefore be reduced based on the contributory negligence on the part of the defendant5. Rulings of such cases could be established by the following examples: C and D while in D’s car happened to over drink in a pub. During their journey home, C forgot to put on a seat belt. Due to D’s negligence, he caused an accident where C got injured. It was held that the passenger was guilty of 20% contributory negligence.6 In the case for Froom V Butcher (1976) QB 286 (CA), the claimant was found not responsible for the accident that occurred. However, he was guilty of the extent to which he was injured since he did not wear a seat belt. It was held that since not wearing the seat belt contributed immensely to the claimant’s degree of injury, he was liable for a 25% penalty on the damages to be paid to him. For a reduction to be made on the damages, the claimant needs to prove a causative potency. In the case of St. George V The Home Office (2008) EWCA Civ 1068, a given 29 year old prisoner happened to fall out of bed due to the seizures that were caused by alcohol and drugs’ withdrawal after being addicted to them. The fall caused head injuries leading to brain damage. The fault of him taking hard drugs long ago was not established as evidence for the fall’s negligence.7 The failure to take good care of one’s own safety amounts to contributory negligence. It is therefore not necessarily that one has to breach his or her duty. Besides, it does not demand that the claimant must foresee the risk exposure that he succumbs to. In Jones V Livox Quaries Ltd (1952) 2 QB 608, the claimant did assume and disobeyed instructions the he should not ride on a lorry’s back. The claimant while doing so was assumed to have foreseen that it was possible he could fall off and be injured. Another lorry drove into the back of that lorry he was on and he got crush injuries. It was held that there was contributory negligence since it was because of his carelessness that exposed himself to the risk of injury.8 In calculating compensation during cases involving contributory negligence, the defence relies on the findings of the court and prove of the carelessness would affect the award of damages to a very significant level9. There are systems of calculating damages which have been proposed for use in cases involving contributory damages. One of such methods is the JSB Guideline which seeks to establish the final damage to be claimed by the plaintiff. Various factors are considered although at times they are not fully exhausted leading to arbitrary figures. Even after the damages have been decided, the claimant and the defendants both have the opportunity to appeal.10 Damage for pain, suffering and loss amenity: non-quantifiable losses and would be treated as general damages: Physical/emotional pain and suffering: The claimant should be awarded 2000 pounds for this loss. This is because there is an assumption of responsibility of the defendant to this claimant and the public. Disfigurement loss: The claimant should be awarded 3000 pounds since he will take some time before the fractures get healed. Impairment loss: The defendant should pay for the impairment loss suffered by the claimant to a sum of 12000 pounds. This is because the impairment will cost him for a long period. Enjoyment of life loss: The claimant will not be able to enjoy life due to the injuries suffered. For this case, 1000 pounds need to be awarded to him. A conventional award of 5000 pounds should be given to the claimant. This is because the injuries of the claimant would lead to loss of livelihood.11 The claimant should however be able to provide evidence relating to: Length of service at work; excellence awards and training; social standing at work; the social value lost; and outdoor work that he enjoys that would have been lost. Future loss of the chance to carry out personal beneficial activities such as investments should also be considered. If the claimant cannot provide such evidence, then the defendant could get a 10% reduction on the amount to be given for damages. Interest per annum should come to 8% of the total. The defendant has the benefit of a 20% reduction on the damages to be paid to the plaintiff. A 20% deduction should give 4000 pounds (5000 - 5000 x 20% = 4000) Interest of 8% addition to the payable damages: 4000 + 4000 x 8% = 4320 pounds. The basis for calculating the award of the above damages is the fact that the claimant suffered loss and would not be able to function normally as before. Under the contributory negligence doctrine, the defendant is responsible for the loss suffered to the decided extent. Total damages to be awarded will be: 2000 (physical pain and suffering) + 3000 (disfigurement) + 120000 (impairment) + 1000 (enjoyment of life) + 4000 (conventional) + 320 (interest) = 130320 pounds Indeed cases involving contributory negligence are complex and demand full attention and consideration of various factors when it comes to awarding damages12. It is assumed that the defendant is innocent and it is therefore upon the plaintiff to prove evidence of contributory negligence on the part of the claimant.13 This might prove to be hard especially when the claimant has no strong case against the defendant and when he or she was the cause of his or her own injury as a result of personal carelessness. Bibliography Basil S. Markesinis, Michael Coester, Guido Alpa & Augustus Ullstein, Compensation for Personal Injury in English, German & Italian Law: A Comparative Outline. Cambridge, (2005) Colleen M. Flood, New Zealand’s No-Fault Accident Compensation Scheme: Paradise or Panacea? 8(3) Health Law Review Daniel Orr, The Superiority of Comparative Negligence: Another Vote (1991) Guido Calabresi, The Costs of Accidents: A Legal and Economic Analysis (Yale University Press, New Haven, 1970); Jonathan Clarke, Contributory Negligence in PI Claims: The Basics & Some Recent Cases, A talk for APIL, Devon & Cornwall Group, 2010 Katherine Howells and Christopher Walker, Maximizing Damages In Medium And Low Value Claims Old Square Chambers; London 2005 Lawrence M. Spizman & Elizabeth Dunne Schmitt, Unintended Consequences of Tort Reform: Rent Seeking in New York State’s Structured Settlements Statutes, 13 Journal of Forensic Economics. (2000) Margaret Devaney, A Comparative Assessment of Personal Injuries Compensation Schemes: Lessons for Tort Reform? vol. 13.3 Journal of Comparative Law, (2009) Neville Cox, The New Rules Relating to Collateral Benefits & Undeclared Income, in Ciaran Craven & William Binchy (eds.) Civil Liability and Courts Act 2004: Implications for Personal Injuries Litigation (First law, Dublin, 2005) William S. Mills, Contributory Negligence, F O C U S. 2002 Read More