A Claim of Negligence - Essay Example

1 LAW CASE STUDY For a claim of negligence to succeed, the claimant must establish that the defendant owed him a duty of care, and that the defendant was in breach of that duty. If a breach occurred or not is more a question of actual fact which is to be established on the basis of the evidence. However, the standard of care (expected) is a matter of law. In English law, the prevailing principle is that the standard of care is absolutely objective. The defendant's actions or lack of actions are measured against the standard established by society for the task performed. In practice, the objectivity of the standard of care means, if a person purports to have a certain skill, or initiates endeavors which imply his possession of a specific skill, then he must display a level of competence associated with that skill. When we view the case of Wells v. Cooper 1958 DIY home repairs must meet the standard of a reasonably competent tradesman. On a whole the law of negligence is focused on who will pay the cost for the loss or damage. Generally, the motive of the defendant is irrelevant to the determination whether he breached the duty of care. We will first look at the Housing Act, 1966 s 39 which empowers the council to make loans for the acquisition of houses. To satisfy the necessary requirements in qualifying the borrower as a bone fide recipient and all the property as fit, the council must perform (via its agent or representative), an inspection of the dwelling on the basis of two pertinent criteria; (1) establishing the actual value and (2) that the dwelling will provide sufficient security for the loan. 2 When we view Ward v. McMaster [1988] IESC (10th May 1988), involving the Looth County Council, in carrying out its statutory duty, published a scheme for making loans by the Council under s 39 of the Act of 1966 and the Regulations of 1972, which stated in part: "No advance shall be made by the council, until the council is satisfied, as a result of the report by the Council's valuer, as to the actual value of an existing houseand thatis so situated as to be readily saleable, in the event of a sale by the Council becoming necessary, due to default by the borrower" (Ward). In an accompanying opinion in this case, Castell J., [1985] I.R. 29 at p 52 held that, "In light of the facts to which I have referred it seems to me that there was a sufficient relationship of proximity or neighborhood between the plaintiff and the council such as that in reasonable contemplation of the council carelessness on their part in carrying out of the valuation of the bungalow the plaintiff (in view of his knowledge that they were going to value the premises and his very limited means), would himself employ a professional person to examine it and so they should have known that if the valuation was carelessly done it might not disclose defects in the premises and as a result the plaintiff might suffer loss or damage. So it seems to me that a prima facie duty of care existed and there is nothing in the dealing between the two parties which should restrict or limit that duty on any way. In particular no warning against reliance on the proposed valuation was given" (Costello 1985) Also in Siney v. Corporation of Dublin [1980] IR400, O'Higgins, CJ states at p.414, "In this case it is sufficient to say that many of these recent decisions recognize a possible liability where the exercise of statutory powers in a negligent manner results in 3 injury to persons occupying houses for whose protection or benefit those powers were intendedobviously, that inspection should have been carried out to ensure what had been built or provided accord with the statutory requirements as to fitness for human habitation. Had the inspection by the defendants been so carried out, it would have disclosed that the ventilation system in this particular flat was defective and inadequate and that the defect was likely to lead to excessive humidity and to the kind of conditions of which the plaintiff and his family subsequently complained. In the circumstances the defect in the ventilation was a serious concealed danger of which the incoming tenant, the plaintiff, could not have been aware and which he could not reasonably have been expected to discover. In these circumstances I can see no basis for suggesting that the principle of Donoghue v. Stevenson should not apply" (O'Higgins). Lord Atkins' speech in Donoghue v. Stevenson 1932, espoused the 'neighbor principle' that a man has a 'duty of care' to those people whom it is reasonably foreseeable that his actions will affect. If he fails adequately to discharge that duty, then he will be liable for any adverse consequences that flow from his failure" (Lord Atkins) "Following on Donoghue v. Stevenson it has been established by a line of decisions (such as Dutton v. Bagnor Regis U.D.C., Anns v. Merton London Borough and Batty v. Metropolitan Realizations Ltd.) that where a person, including a builder or a local authority, carelessly provides a dwelling on which there is a concealed defect which the occupier could not have discovered by inspection, the person who provided the building may be liable for negligence for personal injury or economic loss suffered as a result of the defect. The precise conditions or limitations of that liability evolved in those 4 cases is applicable to the circumstances of this case" (Henchy, J., at 421) In Shelton v. Crane and Arlow U.D.C. (unreported, High Court, 17th December, 1987) Lardner J., accepted the principle stated by Costello J., he said: The proximity of the parties is clear. They were intended mortgagors and mortgagee. This proximity had its origin in the Housing Act, 1966, and the consequent loan scheme. This Act placed a statutory duty upon the County Council and it was in the carrying out of that statutory duty that the alleged negligence tool place. It is a simple application of the principle in Donoghue v. Stevenson [1932] AC 562 confirmed in Anns v. Merton London Borough [1978} AC 728 and implicit in Siney v. Corporation of Dublin [1980] IR 400 that the relationship between the first plaintiff and the County Council created a duty to take reasonable care arising from the public duty of the County Council under the statute. The statute did not create a private duty but such arose from the relationship between the parties. As for Reasonable foreseeability, Lardner J., stated: "In my view, it does not require much imagination for the officers of the Housing Authority to contemplate that a purchaser under the scheme will both lack the personal means of having an expert examination and may well thinkthat the very circumstance of the housing authority investing its money in the house was a badge of quality" In further establishing a duty of care and projecting negligence, we view Acrecrest Ltd. V. W S. Hattrell & Partners [1983] QB 260 1 ALL ER 17, the court held; "although a building owner who was not negligent fall within the ambit of the local authority's duty of care, the scope of that duty might well be restricted or affected by 5 owner's opportunities for inspection and control made questions of causation (i.e. whether the building inspector's negligence caused the damage) and contributory negligence (i.e. Whether the building owner had opportunities for inspection and control or that he had employed architects and builders as independent contractors did not remove him from the local authorities negligence. It followed that the local authority owed the plaintiff prima facie duty of care and, since the loss suffered by the plaintiff had not been caused by their own negligence, they were not excluded from such duty of care. I would advise Mary to file a complaint against the council for not strictly adhering to their statutory responsibility. The councils non compliance with its own stipulations, placed Mary and her child in peril, for which the child has developed a condition which must be treated and monitored. I would further stress to Mary that she has a very good prima facie case of negligence, which could net her compensation for medical expenses and the cost for the necessary repairs. Further, that the contractor did not present the house in a habitable condition, that his presentation of less than skillful craftsmanship, was a breach of his duty of care and thereby rendered him negligent. This negligence on his part, could also result in the awarding of damages. Consequently, Mary could be a plaintiff in a three party suit with two defendants. The significance of the Unfair contract terms in consumer contracts legislation is that it is now making the public aware that all of their personal negotiations are a two way street. That the supplier or vendor are not the only parties to the contract with rights, and that any term in a contract is subject to negotiation. Moreover, the advent of legislation has manifested the creation of governmental agencies who now possess the 6 authority to both oversee and regulate activity within the consumer sector. Additionally, the legislation has sparked the creation of a number of non-government consumer organizations, who serve as watch dogs over the public good. It is no longer acceptable for a contract to be presented, which have not been negotiated collectively by all of the concerned parties. The legislation has prompted the spirit of good faith and fosters that all contracts are negotiated and executed with the proper balance. Consumers are now cognizant of the fact that they can also provide input into the formulation of the contracts which they are to become a party too. Consumers are now aware that they are not compelled to sign or engage in cookie cutter contracts. That if their input was not sought or not included after providing input, then the entire contract can be voided. That all terms or conditions which are included in a consumer contract, must be made clear to the consumer. There are explicit and implicit terms which by statute are considered to be unfair. Through legislation, it is stipulated that contracts must be written in simple language, so that it reduces the chances of the wording being misunderstood, and to further promote fairness. The legislation has exhibited its positive slant towards safeguarding the rights of the consumers in a number of ways, one such example is, whenever, there is a dispute about the meaning or significance of a word or term. Then the consumer gets the bye; the interpretation will go in the direction, which is most favourable to the consumer. Works Cited Acrecrest Ltd. V. W. S. Hattrell & Partners [1983] QB 260 1 ALL ER 17 Anns v. Merton London Borough [1978] AC 728 Batty v. Metropolitian Realizations Ltd. Donoghue v. Stevenson [1932] AC 562 Dutton v. Bagnor Regis U.D.C. Housing Act 1966 Shelton v. Crane U.D.C> (unreported, High Court, 17th December 1987) Siney v. Corporation of Dublin [1980] IR400 Unfair Terms in Consumer Contracts 2000 Ward v. McMaster [1988] IESC 10th May 1988 Wells v. Cooper 1958 DIY Read More