Analysis of Concerning Law of Tort - Case Study Example

Law of Tort Betty Bloke in claiming in negligence of the three companies in this case, must prove that loss suffered was reasonably foreseeable. Negligence is a form of tort. A tort is a civil wrong. 'Tortious liability arises from the bread of a duty primarily fixed by law: such duty is towards persons generally and its breach is redressible by an action for unliquidated damages.' (Abbot, K (2002) If the plaintiff is to succeed in a negligence action, the must prove; a) That the defendant owed the plaintiff a legal duty of care and b) That the defendant has been guilty of a breach that duty, and c) That damage has been caused to the plaintiff. The burden of proof is placed on the plaintiff. In this particular case, we note that Betty was not employed by any of the three companies; it is her husband Harry who was employed by the three companies. The companies therefore do not owe Betty a duty of care directly. The duty care was established by Donoghue V. Stevenson (1932). It is well established that an employers owes a duty of care to his employee. In a negligence action, the employee will have to show that the employer's conduct fell below the standard that could be expected of reasonable employer. Because of the indirect relationship between Harry's wife and the three companies, the neighbour test should be considered. The courts will consider the interests of the victims whilst being fair to the said negligent parties. This brings in the question of sufficient relationship of proximity between the plaintiff and the defendant. 1 Proximity', does not mean physical. It is based on reasonable foreasibility. For example in Donoghue V Stevenson (1932). P's friend purchased a bottle of ginger beer manufactured by D and gave it to P. P drank most of the bottle but then noticed the decomposed remains of a snail in the bottom of the bottle. P subsequently became ill and sued D in negligence. D's defence was that he did not owe a duty of care to P because there was not contract between D and P. (Purchaser was P's friend) It was held that a contractual link should no longer be the unliquidated - damages determined by the court and previously not agreed by parties test for determining whether or not a duty of cares was owed. The House of Lords stated that a duty of care is owed to any person who we can reasonably foresee will be injured by our acts or omissions. The court described such persons as 'neighbours'. It was held that D could reasonably foresee that somebody apart from the original purchaser may consume his product and therefore P was held liable. 2 In the same argument, Betty could claim that despite not loving a contractual link with the three companies, they are liable for her injury. The plaintiff must show that as a result of breach of duty, she has suffered some damage: a) The damage must be caused to a substantial extent by the defendant's conduct. b) The damage must be sufficiently closely related to the negligent act, it must not be too remote. c) In most cases, the damage must be either physical injury to the plaintiff's person or property or economic loss consequential upon. The said breached duty of care by the three companies to Betty Bloke is arising due to their relationship with her husband, Harry. Harry worked for the three companies in a period of 35 years. He was employed by the companies. This implies there was a contract of employment between the companies and Harry Bloke, either expressly or otherwise. The contract of employment is a contract of service and not for services. Under a contract of service, a person places his/ her labour at the disposal of another and thus the relationship is constituted of employer and employee e.g. in the case of a chauffeur. In contract for services, the relationship is that of employer and independent contractor e.g. in the case of a taxi - driver. This distinction is important to determine general liability of torts within employment. (Dobson, P and Schnithoff, 1991). The employment protection (consolidation) Act 1978, (E.P.C 1978) S. 153 (1) defines an 'employee' as 'an individual who has entered into works under a contract of employment'. The test to determine a person's employment status has altered over the years from the original one of control and supervision of the workers to whether or not a person was on integral part of the employers business. Factors that the court must have regard to in determining whether one is employed These were developed in the case of Addison V. London Philharmonic Orchestra Lt (1981). They include; (i) The degree of control exercised by employer. (ii) Whether the employee had a prospect of profit or risk of loss in performance of work. (iii) Whether the employee was properly to be regarded as part of the employer's organization. (iv) Whether the employee was carrying on his own business or his employer's business. (v) The source of any equipment used in the work. (vi) The incidence of tax and national insurance contributions. (vii) Parties' own view of the relationship. (viii) Traditional structure of the employee's occupation and arrangements within it. However, McNeil J in Warner Holidays Ltd V. Secretary of State for Social Security (1983) counselled that an aggregate view to be taken to determine the intention of the parties in the absence of an unambiguous written agreement. With the transformation since 1963 of the contract of employment into a contract of incorporation, customary practices, on one hand and terms applied by common law on the other, have afforded a more restricted scope as sources of the contract of employment. Nevertheless, certain categories of implied terms were established by judicial decision and will normally be treated as part of the contract unless contradicted by something expressly agreed or incorporated. In Courtaulds Northern Spinning Ltd V. Sibson &T.G.W.U (1988) it was held' 'in cases .. Where it is essential to imply some term into the contract of employment as to place of work. The court does not have to be satisfied that the parties, if asked, would in fact have agreed the term before entering the contract. The court merely has to be satisfied that he implied term is one in which the parties would probably have agreed if they were being reasonable. Implied terms of employment by common law 1. Co-operation - It is an implied term that both parties to the contract should facilitate the performance of their mutual obligations under it. There is an implied term of contract that the employers treats the employee with respect and not break to mutual relationship of trust, confidence and faith. 2. Duty of fidelity - Both parties have duty of good faith and mutual respect. 3. Duty of care - Both parties are under a duty to take care in performance of the contract. The employer must take reasonable care for the safety of his employees in the course of their employment and in particular must provide safe tools, a safe place of work, and a safe system of working and select properly skilled fellow employees. Having established that Harry Bloke was employed by right Ltd, Ruff ltd and Shoddy P/c respectively either by contract or conduct, the three companies can be held liable for losses incurred by Harry directly or indirectly. The employer is not liable for his own failure to use due care and diligence. The employer must be covered by and insurance policy pursuant to The Employer's liability (compulsory Insurance) Act 1969 and Employer's Liability (Defective Equipment) Act 1969 also provides that an employer shall be liable in negligence if an employee in the course of employment is injured and injury is attributable wholly or partly to the negligence of a third party, whether the third party is identified or not. However, the employer's liability is without prejudice to the law of contributory negligence and to any remedy by way of contribution or in contract otherwise which is available to the employer in respect of the injury. An agreement between employer and employees to exclude or limit the employer's liability under the Act would be void. 3 The employee must also exercise reasonable skill and care in the performance of his duties. If the companies could prove that Harry did not exercise reasonable care e.g. informing his wife of the dangers of asbestos, they could claim contributory negligence. The law relating to health and safety at work comes from a number of statutory and common law sources, such as common law negligence, the Health and safety at Work Act 1974 (HASWA) and various regulations brought in to implement EC Directives. HASWA does not give rise to any civil liability - there is no provision for an employee to sue breach of statutory duty or claim compensation, although he may do so under some of the associated regulations. If an employers has been convicted of a breach of HASWA he will almost certainly be liable in an action for negligence by the employee. HASWA imposes a general safety requirement on employers to ensure, as far as reasonably practicable, the health, safety and welfare of far workers S.2 (1) Some specific duties under HASWA include; The provision and maintenance of safe plant and systems of work. If there is not safe way of doing the job, the employer may not be guilty in Martin V. Boulton and Paul (Steel construction) Ltd (1982) an employee was knocked off a beam which had been lifted in place by a crane. The magistrates decided that, although the system was dangerous, other methods were no safer and since the system was in common use, the employer was not guilty under HASWA. The risk to employees must be weighed against the cost of avoiding harm. Under this, the three companies could argue that there was not less risky way of Harry Bloke performing his duties. Thus reducing their liability. 4 The provision of necessary information, instruction, training and supervision. This would equip employees like Harry with necessary information of law to reduce risks to his health and also that of his wife. Under S 2 (3) HASWA an employer who employs five or more people must produce a health and safety policy document which contains information about safety procedures, specific risks and so on. Under S. 3 HASWA, an employer owes a duty not only to employees, but also to anyone who might be harmed by the way he conducts his operations e.g. in Mara (1987) a contract cleaning company left its machines at a shop which it cleaned. Employees of the shop were allowed to use the machines. An employee was killed after receiving an electric shock from one of the machines, which had a faulty cable. The director of the cleaning company was guilty under S. 3 The following are some of the general duties under HASWA. General duties of employers to persons other than their employees It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety. In such cases as may be prescribed, it shall be the duty of every employer in the prescribed manner and in the prescribed circumstances to give persons (not being his employees) who may be affected by the way in which he conducts his undertaking the prescribed information about such aspects of the way in which he conducts his undertaking as might affect their health or safety. The two duties above show that the three companies have a duty towards such persons as Betty who may be exposed to risks to their health or safety in the course of their (the companies') undertakings, though they are not employees of the companies. General duties of manufacturers etc as regards articles and substances for use at work It shall be the duty of any person who designs, manufactures, imports or supplies any article for use at work. To ensure, so far as is reasonably practicable, that the article is so designed and constructed as to be safe and without risks to health when properly used. To carry our or arrange for the carrying out of such testing and examination as may be necessary for the performance of the duty imposed on him by the preceding paragraph. To take such steps as are necessary to ensure that there will be available in connection with the use of the article at work adequate information about the use for which it is designed and has been tested, and about any conditions necessary to ensure that, when put to that use, it will be safe and without risks to health. It shall be the duty of any person who undertakes the design or manufacture of any article for use at work to carry out or arrange for the carrying out of ay necessary research with a view to the discovery and so far as is reasonably practicable, the eliminations or minimization of any risks to health or safety to which the design or article may give rise. It shall be the duty of any person who erects or installs any article for use at work in any premises where the article is to be used by persons at work to ensure, so far as it is reasonably practicable, that nothing about the way in which it is erected or installed makes it unsafe or a risk to health when properly used. The above duties imply that the three companies, having supplied asbestos sheeting for Harry to use at work are liable in a number of ways; If they did not take such steps as to give information about risks involved with the use of asbestos sheeting. If Harry was aware, he would have reasonably known that asbestos dust would risk his wife's health. If the companies did not arrange for the carrying out of any necessary research with a view to discovery and, so far as is reasonably practicable, elimination and minimization of any risks to health or safety. The companies, through research could have known that asbestos could give rise to serious illness e.g. mesotholioma which Betty suffered from. They could also take measures to minimize the risks to employees and other persons employed by them e.g. ensuring employees' overalls are laundered in their company by people aware of the risks and who take necessary reasonable precautions during laundering. If the companies did not ensure, so far is reasonably practicable, that nothing about the way in which it was elected or installed makes it unsafe or a risk to health e.g. Right ltd who were shop fitters should have taken reasonable steps to ensure that the way in which Harry fitted the asbestos sheeting does not expose him to so much asbestos dust that it affects even his wife who washes his work overalls. However, the companies in their defence can argue that: - It was not reasonable foreseeable that Betty, Harry Bloke's wife would suffer asbestos - related mesothelioma from washing Harry's work overalls. It was not reasonably practicable to minimize the health risks of exposing Harry to asbestos dust thereby exposing his wife too. The companies did not owe Betty a duty of care. If it proves hard for Betty to prove a breach duty of care and she decides to resort to the maxim res ipas loquitur (the thing speaks for itself) i.e. referring to her asbestos - related condition of mesothelioma, then the burden of proof will shift to the defendants. The three companies must prove that they showed reasonable care. If they can prove that despite the facts they acted reasonably, then they succeed. The companies could also argue that it was an inevitable accident like in the case of Stanley V. Powell (1891). D fired his gun at a pheasant but the bullet hit a tree and ricocheted into P. D was held to be completely blameless and not therefore liable in negligence. 5 Bibliography Abbot, K; Pendlebury, N. and Wardman, K. (2002): Business law 7th edition. London: Biddles Ltd, Guildford and King's Lynn. Dobson, P and Schnitthoff, C. (1991): Charles worth's Business Law. 5th edition, London: Sweet and Maxwell Emanuel, S. L. (2004): Fundamental of Business Law, 4th Edn, Sydney, Educational Publisher Emerson R. W (2003): Business Law, 5th Edn, Sydney, Educational Publisher Jertz, A., Miller L. R, (2004): Fundamentals of Business Law, 3rd Edn, London, Macmillan Publisher Kronman, A.T (1985); Contract Law and the State of Nature, Journal of Law, Economics, & Organization, Vol. 1, No. 1 (spring, 1985), pp. 5-32 Penrose, R (2005): Road to Reality: A Complete Guide to the Laws of the Universe, Sydney, Longman Publisher Read More