Law of Torts - McWilliams v Sir William Arroll 1962 - Essay Example

1 Law of Torts I would advise Mr. Andy that his accident occurred in the type of area commonly known for producing similar types of vehicle mishaps, and it will not be necessary for him to prove any type of vicarious liability. It is the duty of the owner to make the property safe. . in the case of McWilliams V. Sir William Arroll 1962, the 'but for' test is applicable on the premise that he (Mr. Andy) would not have sustained the injury but for the breach of the (property owner) defendant. Moreover as in Anns V Merton (1977), Lord Wilberforce proposed a two-staged testonce neighborhood was established, there is a prima facie duty of care, which can only be rebutted on policy ground. (Boone) I would also caution Mr. Andy that his contributory negligence in not wearing a seat belt as requested by Suzie, may be just cause for his compensation to be reduced. The defendant might introduce the Contributory Negligence Act of 1945, which in part states: Where any person suffers damage as a result partly of his own fault and partly of the fault of any other person or persons, a claim in respect to that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard the claimants share in the responsibility for the damage. (Act 1945) Notwithstanding a counter claim by the defense on the grounds of contributory negligence, the judge may be inclined to take a stand similar to that taken in Armstrong and Anor V. First York Ltd. [2005] 1 WLR 2751 where the judge is entitled to prefer the evidence of the claimant. Additionally, we can rely on Moy V. Pettman, Smith (a firm) 2 and others [2005] 1 WLR 581, where settlement of the action is guaranteed whether it is conclusive. I will also advise Mr. Andy on the prospect of two additional potential claims. Where vicarious liability is obvious in one and not so clear in the other. While he was in fact a passenger in a vehicle driven by Suzie, she is not personally liable for his injury. To illustrate this I will use the chain of causation as the example and it works thusly: A caused B, B caused C, then A Caused C. In other words, A (kid blindly exiting from vacant lot) caused B (Suzie to make an abrupt emergency stop when she slammed on her car brakes), caused C (Mr. Andy to break his nose). Which in the strict sense of the law represents an additional claim of negligence for Mr. Andy. Under English Law, David's mother is obliged to know where her non-adult children are at all times. She has specific responsibilities concerning their behaviour. The parent is liable for any harm or damage which the child might cause, as a consequence of being unsupervised. However, I would think that Mr. Andy would in all probability in this instance, be willing to exhibit some compassion, and this case would be a moot point, since David is now deceased and his sibling was badly burned in a fire on the vacant lot. Also, since Mr. Andy was the passenger in the vehicle driven by Suzie, where he encountered an accident, he is at liberty to file a claim against her car insurance company. But, I would advise Mr. Andy against filing the latter claim for a number of reasons: (1) Suzie requested that he wear the passenger seat belt on the passenger side of the car. Either due to the comfort level (given the fact that he is overweight), or simply due to his recalcitrance, he rebuked her request. His refusal of her common sense suggestion was a contributor to the injuries he sustained, and it should in his minds eye free her from any 3 and all liability in the situation. And (2) Mr. Andy was neither coerced nor drafted, he offered his services to be the 'good samara tin' and provide driving lessons to Suzie, with the full knowledge that she was an inexperienced driver. Having settled that delicate matter, I would then advise Mr. Andy to file a negligent claim and seek indemnification for compensatory damages naming the owner of the lot as the sole defendant. Compensatory damages covers all financial expenses and all ailments associated with personal injury including: Loss of wages, emotional distress, pain and suffering (such as grief, fright, anxiety, humiliation, and depression) permanent disability, mental impairment, earning capacity impairment, loss of profits, medical bills, interest due from money withheld, repair and replacement of property. Compensatory damages are also called actual damages. (fyi) My advice to the mother of Sam and David is that on behalf of her two sons, she must file a negligence claim against the property owner. The negligent claim should assume the posture of Re Polemis 1921, which ruled that once some damage of a particular type was foreseeable, all directly-caused damage that type was attributed to the defendant, however remote. The defense will probably challenge the basis of the claim on foreseeability as ruled in Polemis and stress that the principles found in Wagon Mound 1961, which held that damage that is not itself reasonably foreseeable cannot be attributed to the defendant it will be the position of the plaintiff, that it is totally foreseeable that a fire will be started on a vacant lot full of leaves and debris. In other words, the ingredients for such an occasion are abundant throughout the lot. As in Hughes V. Lord Advocate 1963, The House of Lords held: that damage caused by an oil explosion was, in effect, a foreseeable consequence 4 of leaving an oil lamp unattended in public. The injury suffered by the claimant- severe burns-was of the same type as should have been foreseen (i.e.. minor burns) and therefore was not too remote. What this case seems to establish is that the type of injury or damage that must be foreseeable, not the extent. (Acumnen) The mother will seek indemnification for both of her children on the basis of a negligence claim and she will ask for compensatory and punitive damages. Additionally the mother will file a wrongful death suit on behalf of David. Her claim for David will be based on the Fatal Accidents Act of 1976, where she will be entitled to 7500 pounds from tortfeasor under 51A. She will also submit an accompanying claim under The Civil Liabilities (Contributors) Act 1978. Under The Law Reform (Miscellaneous Provisions) Act (1934), her claim will be based on four types of damages, special damages, pain and suffering, loss of amenities and damages for funeral expenses. I will subsequently advise the mother that she can also claim for her own personal injury based on a prima facie case of nervous shock She would also have to prove duty of care, breach and causation for her claim. Which is this instance, it is a foregone conclusion, she will have no trouble establishing this basis. Bibliography Acumen Legal Search Advise on Torts [on line] Available from: www.Acumenlegal.com Anns V. Merton (1977) [on line] Available from: Bccls.bc.ca/cmsindex.cfmgroup_id33365 Anor V. First York Ltd. [2005] 1 WLR 2751 Boone, Kevin, 2004, Breach of the Duty of Care [on line] Available from: Law.web-tomorrow.com/twiki/bin/view/mainbasicprinciples Fatal Accidents Act of 1976 [on line] Available from: www.the-compensation-shop.co.uk/fatal-accident-claims FYI Personal Injury Law,info on punitive and compensatory damage. Hughes v. Lord Advocate 1963 [on line] Available from: www.torts-neg.html McWilliams v. Sir William Arroll 1962 [on line] Available from: www.londonexternal.ac.uk/current_students/programme Moy V. Pettman, Smith (affirm) and others [2005] 1 WLR 581 Negligence Act of 1945 [on line] Available from: Llr.lls.edu/volumes33issue3/hayden Polemis 1921 [on line] Available from: Julian-wyatt.com/remoteness The Civil Liabilities (Contributors) Act 1978 The Law Reform (Miscellanous Provisions) Act (1934) www.aamai.or.id/web/index.phpcat_id=01.2.1&lang=1 Wagon Mound 1961 [on line] Available from: www.manymedia.com/law/notes/torts-neg.html Read More