Civil Liability and Self-Defence - Case Study Example

Civil Liability and Self-Defence Advice to Bill about the Physical Assault Committed by Alex I will advise Bill to file a complaint for civil damages against (1) Pumps and Pipes, the temporary employer, (2) Jobs Galore, the labour contractor and employment agency of Alex, and (2) Alex herself for having concluded a hasty but unfounded judgment which prompted her to hit Bill. While there was physical injury or battery, I will not counsel Bill to file a criminal action against Alex because there was no malicious intent on the part of the latter when she hit Bill albeit Alex is still civilly liable under the principles of the law on torts. On the basis of the attendant facts, it would appear on the surface that Alex committed a criminal act. Incidentally, this is not so in the case at bar. To prove a crime, two elements are required to be present. Firstly, there must be the external or criminal act, called actus reus in Latin. The second element is the malicious intent on the part of the actor, the Latin mens rea. In order to obtain a conviction, these two essential requisites must be established with proof beyond reasonable doubt.1 When Alex returned from her coffee break and found out Bill taking away a computer and trying to get another one, what was on her mind was that Bill, whom she does not know, was stealing the properties of her temporary employer, Pumps and Pipes, whose right or interest she would naturally try to protect. Indeed, Alex attempted to so do by hitting Bill in the stomach. Otherwise stated, there was no malicious intent or criminal design on her part to unjustifiably or unreasonably cause injury to Bill when she executed the assault. There was therefore no mens rea as there was no definite mind-set and clear objective to effect and perform a criminal act on the part of Alex against Bill and this is particularly true in the case at bar when she did not mean any harm more severe than what was only needed to avert what she believed was the illegal taking of the computers. The honest fear and apprehension of Alex were demonstrated by her running away and locking of the doors understandably anticipating what Bill would do in retaliation the latter being a male person. In short, the deed of Alex in harming Bill was only to defend the property of Pumps and Pipes which is embraced within the generic application of self defence. However, the question now is whether or not the act of defending and the extent of it were reasonable and justified. In the case of Ashley v Chief Constable of Sussex Police [2008] 2 W.L.R. 975, one issue which was resolved by the House of Lords was the question as to whether or not a defendant can claim self-defence when he had mistakenly albeit honestly perceived that it was necessary to defend himself against a clear danger even if the wrong belief was not reasonable.2 The decision in that suit enunciated that in a civil action for battery, as in the present situation, the burden of proof is on the defendant to convincingly show that not only was his belief honest but that it was reasonable. Under the circumstances, Alex does not qualify to put up self-defence as far as concerning the civil aspect. While she may be justified in assessing that Bill would commit an offence against the property right of her intermittent employer, the force or manner of defending that right did not appear reasonable. She could have just instead run away immediately, locked the doors and called out for assistance like what she did without unnecessarily hitting Bill. The events in the instant case find relevance in one not so old development. There had been moves to challenge and or to make clear the law on self defence. A farmer was adjudged to suffer the penalty of a life sentence following his alleged murder of a teen-aged intruder. No less than a police authority head rallied for a demand to put greater clarity in the law on self defence. It was charged that lawmakers must address this concern in order to give householders what real and specific right did they have against burglars.3 As earlier stated, the civil action on behalf of Bill must include the temporary employer, Pumps and Pipes and Jobs Galore, the employment agency. Alex is an employee of Jobs Galore who was contracted out to Pumps and Pipes who is therefore the temporary employer. It is basic in common civil law that the liability of the employee is likewise that of the employer especially in tort cases under the principle of vicarious obligation. Pumps and Pipes committed lapses concerning the employment of Alex. It did not exercise the necessary diligence in supervising and managing her functions despite being fully aware that she was on an intermittent basis and was new in the workplace. The management and supervisory staff of Pumps and Pipes should have introduced Alex to the regular employees and other permanent personnel in the office where she was to be temporarily assigned. She should have been apprised about computer maintenance, the schedule of repairs, the intervals of pulling out the units, the employees having charge and function over such maintenance, repairs and pull-out. These were simple routines that could have been regularly, normally and usually adopted in giving orientations to new, temporary, intermittent or casual workers like Alex. Had this been done, Alex could have known which computers were to be pulled out, when were these to be taken and who were tasked to do this job. Had it been done, Alex could have known and familiarized with Bill and could not have assaulted the latter. Good and logical management dictates that this kind of process of introducing new personnel, particularly ambulant or temporary ones, have to undergo some form of introduction to the company, including the dynamics and variables in the workplace environment and the existing staff and organization. This was not difficult for Pumps and Pipes to do and it could have saved itself with the trouble of an otherwise unnecessary and unwanted controversy. There are instances where the civil obligation of the employer and the contractor has to be delineated and defined. In the case of Hawley v Luminar Leisure Ltd [2006] IRLR, it was ruled that the determination of where to place the burden of liability will depend on the distinct circumstances and facts of each case.4 It was pronounced in the case that it was a heavy burden to lay the burden to the general employer to show that the accountability has shifted to the temporary employer. Several factors were then considered in getting into the bottom of finding who exercised over the employees, who paid them and to whom do they report and pay obedience while working with the temporary employer. The ruling court handed down the dictum that it was the temporary employer who must be responsible as it was the one exercising apt control over the contracted employees and how their duties are carried out. The decision therefore is to be understood that the obligor is determined by whoever has authority over the hired employee while the latter is in the workplace. Likewise taken into account is which of the two, the general and the temporary employers, shoulders the payroll of the contracted personnel and to whom do these workers pay obedience or receive instructions and advice while carrying out the duties assigned to them. The facts and information in the present case apparently point out that Alex was reporting in the workplace of Pumps and Pipes. However, it is not evidently clear where she gets instruction and to whom does she report. It is possible for contracted personnel to stay in the workplace of the temporary employer while they get their assignments from the contractor or employment agency. Having not been categorically established, it is honestly opined that both Jobs Galore and Pumps and Pipes be pleaded in the civil litigation to be filed for and in behalf of Bill. Along that notion, their liabilities will be one of joint and solidary together with Alex. It is worthy to note that the obligations due from Alex, Jobs Galore and Pumps and Pipes must be equitably reckoned and calculated only up to the time prior to the delayed arrival appearance of the ambulance which Bill and the manager called up by telephone immediately upon seeing Bill collapsed. If it can be shown that Bill could not have sustained the severity of physical damage that he did had he been attended to in a timely fashion, the chain of causation is cut and stalled and the intervening or supervening factors have to be seriously considered in the apportionment of liability. Confessed is the fact that general law and jurisprudence have it that no person shall be liable for unforeseen events or, even if foreseen, are inevitable. Since there is no showing that the probable defendants had some substantial and direct participation in the further complication of the health condition of Bill, they could not altogether be made liable to such an extent as would stretch after they the call for help was made as there was then already a break in linking causation to the final outcome of the tortuous act. It would have been different if, after Alex and the manager found out that Bill had collapsed, they abandoned him for no reason. In the latter case, the causation continues and act of abandonment becomes part of the proximate cause as a whole. To illustrate, if a car accidentally bumps a pedestrian and the driver brings the victim to the hospital but, along the way, robbers block the way and the driver could do nothing, he would not be totally responsible for the total damage and injury which could have been mitigated if timely medical assistance was extended. In that event, the liability shall be equitably calculated under the concept of mitigated defence. Advice to Bill about the Delay of the Ambulance Service The ambulance service is liable, barring any excuse for a fortuitous even or for an act of God. The nature of an ambulance service is logically that it must be prompt and always ready. The people who are supposed to operate the ambulance vehicle are presumed alert, well-trained and will be on the go at any time demanded of them. Comprehending its meaning and definition as a vehicle with special equipment to carry the wounded or the sick, the purpose and intention of commissioning an ambulance have that essence within the ambit of emergency and urgency.5 In sum, the company or the entity that operates an ambulance service must act with utmost diligence in the conduct of its business. In the case of Bill, he could have been treated with swiftness and dispatch if the ambulance arrived very much earlier than the forty eight minutes of travel that it made in a span of only five miles. Separating seriousness from levity, it did not run like an emergency vehicle, it walked like a funeral car. Resultant of the turtle slow pace of the trip the ambulance consummated in reaching the collapsed Bill, the emergency treatments supposedly executed by the paramedical personnel on him were delayed proximately causing permanent damage to his health. Bill could have been better off had timely initial treatment was rendered unto him. He could not have suffered a more severe physical and health condition. Using the argument of Lord Atkins in a litany of cases under the so-called neighbour principle, the ambulance service did not accordingly act in order to extend the then urgently needed care to Bill. Such being the incident, the ambulance service must be held answerable for its misdeeds and must tender compensation for damages. This becomes more true because it is the duty of the managers and other men behind to see to it that the emergency vehicles under their charge are on the dot in any eventuality which demands the prompt delivery of injured persons and other patients within the timeframe necessary under the circumstances. This means that the ambulance operator is not only an ordinary neighbour, he is a special neighbour tasked to do so special duties and responsibilities. It is always expected of an ambulance service to be extra prudent and diligent in carrying out its emergency operations. In a case (Bailey v Ministry of Defence [2008] EWCA Civ 883) where the plaintiff suffered brain damage under the care of a hospital due to cardiac arrest owing to certain complications, the litigation was ruled in favour of the claimant. In that case, it was found out that the patient could not have sustained the worse situation if there were no failures in the care given her after the operation. The hospital was especially mandated to observe the maximum degree of concern over the health needs of the patient to avoid aggravated illness. The court resolved in favour of the claimant for the failings of the hospital noting that she could have been less weak, or stronger, if only appropriate, timely and efficient care were attendant during her confinement.6 While it was admitted that the weakness of the patient was a result of her being inherently susceptible to physical and health shortcomings, it was decided that it was likewise caused by inadequate care and other lapses on the part of the defendants. The hospital therefore materially contributed to the damage and the injury. The above-cited jurisprudence is similar to the instant case of Bill, that is, if immediate medical attention was applied to him, he could not have been a victim of permanent health damage. In sum, the negligence of the ambulance service substantially and significantly added adverse effects to his already sorry state. For that, the ambulance entity must be considered materially contributory to the complications suffered by Bill. There is, however, a big and crucial question here. What if it was not the fault of the ambulance vehicle in incurring the delay which slowed down extending medical help to Bill What if, along the way, a humongous traffic jam caused by flash floods put everybody in the street in suspended motion What if two cars in front of the ambulance equipment collided and the latter could not get through In that eventuality, the ambulance service may not be blamed or faulted. As earlier discussed, no one is liable for unforeseen happenings or, even if those happenings are foreseeable, the same are inevitable and cannot be avoided. Works Cited Ambulance. Webster's Definition. YourDictionary.com. [internet] Accessed August 21, 2009. Available at: An Introduction to UK Criminal Law 67. HubPages. [internet] Accessed August 21, 2009. Available at: Bermingham & Brennan: Tort Law Directions. Chapter 3 page 37. Oxford University Press. [internet] Accessed August 21, 2009. Available at: < http://www.oup.com/uk/orc/bin/9780199227983/01student/updates/ch03/> Bermingham & Brennan: Tort Law Directions. Chapter 6. Page 93. Ibid. internet] Accessed August 21, 2009. Available at: Bermingham & Brennan: Tort Law Directions. Chapter 11. Page 196. Ibid. [internet] Accessed August 21, 2009. Available at: Clearer self defence law demanded. BBC News. Monday, 24 April, 2000. [internet] Accessed August 21, 2009. Available at: http://news.bbc.co.uk/2/hi/uk_news/724416.stm Word count including footnotes and bibliography: 2,656 Read More