Abrahams on Business Law - Case Study Example

Abraham has at least two possible claims in the law of tort. The first is Abraham's claim of negligence against the shop manager (as personal liability) and against the shop manager's employer under the principle of vicarious liability for the personal injuries sustained when he crashed into the windows left open to the pavement without any visible warning or danger sign. The second is his claim against the ambulance driver and the hospital or the driver's employer under the principle of vicarious liability for personal injuries sustained caused by negligent driving. Crates Ltd (or "Crates"), on the other hand, has a claim for damages against the workman Eddy for his negligence and against Eddy's employer, Divies Ltd. (or "Divies") under the principle of vicarious liability. Crates may likewise have a claim for consequential economic loss. For Abraham and Crates to successfully claim under the law of tort, it must be shown that the elements making up a successful claim of negligence exist: duty, breach, causation, and damage. In the case of Lochgelly Iron and Coal Co. v M'Mullan (1934), it was stated that the tort of negligence 'properly connotes the complex of duty, breach and damage thereby suffered by the person to whom the duty was owing'. It was likewise stated in Burton v Islington (1992) that 'it is now elementary that the tort of negligence involves three factors: a duty of care, a breach of that duty and consequent damage.' Based on the foregoing decisions, the tort of negligence to be actionable must have the following elements: (1) there is a legal duty of care owed by defendant to the plaintiff; (2) a breach of that legal duty of care consisting of an act or omission by the defendant; and (3) consequent damage on the part of the plaintiff as a result such act or omission by the defendant. [see also Markesinis, p. 69 (1999)] In the recent case of Jones v BBC, 2007 WL 2187023 (QBD), Jones, a freelance sound recordist for defendant BBC, claimed that he suffered personal injury caused by the negligence of the defendants. During a recording of the lowering of a windmill mast, and while Jones was walking under the inclined mast, the windmill rotor fell onto his back causing severe spinal injury rendering him paraplegic. In ruling for the claimant, the court stated that the BBC, as employer, had assumed responsibility for the health and safety of freelancers when they work on BBC productions. Since the safety crew had identified a risk of the falling mast, a discussion before filming should have been made to warn the crew not to go beneath it. But the safety crew did not give the warning. Such failure of BBC, through the safety crew, is considered negligent which caused Jones' accident. It had been held that it was incumbent upon BBC, its safety crew and the owners of the farm as occupiers of the site to take steps further to those they had taken to ensure that the BBC crew did not pass under the mast during its lowering. In the instant case, the shop manager breached the legal duty of care required of him under the circumstances when he failed to give a safety warning or danger warning after opening the windows onto the pavement because it is reasonably foreseeable that such window obstructs the path of the pedestrian and is most likely to cause an accident. Thus, in the case of Crowther v Kirklees Metropolitan Council (2006), the claimant ambulance driver claimed damages for personal injuries she sustained when she went to the house of a patient where the street was a narrow cul-de-sac with no footpaths. When plaintiff got out of the ambulance and placed her right foot on the step, as it was a high drop to the road, and her left foot on the ground, it entered a large defect centred around a circular utility cover measuring 5cm in depth, 40cm in width and 46 cm in length. When her foot entered the defect, she went over on her left ankle, which she strained. In ruling for the plaintiff, the court stated that it was reasonably foreseeable that the defect could result in injury to pedestrians. The road was a quiet cul-de-sac with no pavements and it was obvious that pedestrians would have to use the road as a walkway and it was thus akin to a footpath and thus having regard to the defect and its size, it presented a clear risk to the public. In the same manner, it was reasonably foreseeable that the obstruction caused by the opened window protruding into the pavement could result in injury to pedestrians like Abraham and presented a clear risk to the public. The question of whether the shop manager breached that duty of care depends on the standard of care she owed and whether it has taken reasonable steps considering the circumstances: Latimer v A.E.C. Ltd.(1953) The risk posed by the protruding window being reasonably foreseeable, it is thus incumbent upon the shop manager to put in place safety measures such as danger signs which is the duty of care required upon him. In McArthur v Strathclyde RC (1995), plaintiff claimed for damages for injuries in an accident which occurred at 1 a.m. when his car "struck a hole, raised manhole or drain cover, traffic cone or other obstruction on the road" which was "not marked by any warning sign and was not visible." While the action was dismissed because it was time-barred, it was recognized that the accident had been caused by a danger which was there because of defendant's negligence consisting of failure to place a warning or danger sign. Similarly, the shop manager is likewise liable for failure to place a warning sign brought about by the obstruction. In another case, D v AMF Bowling (2002), plaintiff was injured at a bowling alley when she crossed the foul line, slipped and fell, fracturing her left humerus. The only warning sign, measuring 22cm by 15cm, was situated on the gutter of the alley and depicted a figure slipping with the words "Danger slippery surface. Do not proceed beyond foul line." Plaintiff argued that she did not know the bowling alley was slippery and that the warning sign was inadequate. In ruling in favour of plaintiff, the court stated that defendant failed to discharge its common duty of care. The warning sign was present but inadequate due to the fact that it was not sufficiently prominent. Further, the positioning of the sign at the end of the alley did not afford any or any adequate opportunity for plaintiff to see the content of the sign in any event. If defendant in that case was found to be negligent notwithstanding the fact that a warning sign was placed, with more reason that the shop manager be found negligent for its utter failure to place a warning sign. In regard to the broken arm which Abraham sustained when the ambulance crashed, he has a claim in the law of tort against the ambulance driver for the latter's negligent driving. In Nettleship v Weston (1971), citing Glasgow Corporation v Muir (1943), it was ruled that it requires a driver to "drive in as good a manner as a driver of skill, experience and care, who is sound in wind and limb, who makes no errors of judgment, has good eyesight and hearing, and is free from any infirmity." (see Richley (Henderson) v Faull Richley, Third Party (1965); Watson v Thomas S. Whitney & Co. Ltd. (1966) The ambulance driver is thus expected to observe the same degree of care and must drive in as good a manner as a driver of skill, experience and care, sound in wind and limb, who makes no errors of judgment, has good eyesight and hearing, and free from any infirmity. But the ambulance driver failed to exercise the duty of care incumbent upon her because she drove carelessly in order to finish her shift. Her negligence thus renders her liable to pay damages to Abraham for the latter's personal injury. In both instances, i.e., protruding window and negligent driving, it is imperative for the claimant to establish causation. There is causation when both factual causation and legal causation are present. Factual causation refers to the nexus between the defendant's action and the claimant's damage (the 'but for' test) while legal causation refers to the break or 'novus actus' in the chain of causation. Applying the 'but for' test applied by Lord Denning in Cork v Kirby MacLean (1952), and illustrated in Barnett v Chelsea and Kensington Hospital Management Committee (1969), Abraham would not have sustained personal injury (being knocked unconscious and broken arm) but for failure of the shop manager and the ambulance driver to observe the required degree of care incumbent upon them under the circumstances. It could be argued that there is no evidence of a 'novus actus' breaking the chain of causation. They are therefore liable to Abraham as a result of their negligence. The respective employers of both the shop manager and the ambulance driver are likewise liable separately to Abraham for the personal injury he sustained based on the principle of vicarious liability. In the 2007 case of Majrowski v Guy's and St Thomas's NHS Trust (2007), the House of Lords stated that under the principle of vicarious liability, a blameless employer is liable for a wrong committed by his employee while the latter is about his employer's business. Hence, the negligent conduct of the shop manager by failing to observe the duty of care required of him under the circumstances, i.e., to place warning and danger signs, is attributable to his employer, the shop owner. In the same manner, the ambulance driver's negligence is attributable to her employer or the hospital. The shop manager and his employer may possibly raise the defence of contributory negligence because Abraham crashed into the window which is visible and above waist. In the Jones case wherein claimant was led under the mast, he was concentrating on his work and did not realise that he was passing under it. His conduct according to the court amounted to no more than a moment of careless inadvertence lacking the essential carelessness necessary for any finding of contributory negligence. Following Jones, it can be argued that Abraham's crashing into the window was merely a moment of careless inadvertence, if at all, lacking the essential carelessness necessary for any finding of contributory negligence. Nevertheless, the open window protruding into the pavement is a tort of public nuisance (a tort) because it interferes with the enjoyment of property whose use is shared by the public: (Rose v Miles (1815). Crates, on the other hand, has a claim of negligence against the workman Eddy and his employer under the abovementioned principle of vicarious liability. Employee and employer are both liable not only for the direct consequences of the negligent act but also for those consequences of the act that can be said to be reasonably foreseeable. Such liability for consequential economic loss results from the lack of power for four days caused by the careless cutting of the power line. In Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd, (1973), it was ruled that financial loss which is not the direct result of physical damage is too remote to be compensated for. By negligently cutting an electricity cable, defendant caused an interruption in the power supply to plaintiff's factory. Plaintiff lost (a) GBP 368, the value of the metal in the course of processing, (b) GBP 400, the profit which would have been made on that metal, and (c) GBP 1,767, the profit which would have been made on further lots of metal which would have been processed in the hours until the electricity supply was restored. The court ruled that only the GBP 368 and the GBP 400 were recoverable, the GBP 1,767 was purely economic loss and was too remote. (see also Cattle v Stockton Waterworks Co (1874-75); SCM (United Kingdom) Ltd v WJ Whittall & Son Ltd (1971)) Thus, following the Spartan ruling, Crates may claim not only for the consequent loss of production costs of GBP150,000 but also the economic loss consequential upon the loss of production costs or the profit that could have been made on the finished product. It cannot be argued that such damage suffered or loss by Crate was too remote from the negligent act of cutting the factory's power line carelessly. On the contrary, such loss was reasonably foreseeable from the careless cutting of the power line because the test for remoteness of damage is that the damage must have been reasonably foreseeable. (Wagon Mound No 1[1961]). In summary, Abraham has at least two possible claims in the law of tort. The first is Abraham's claim of negligence for the personal injuries sustained when he crashed into the windows left open to the pavement without any visible warning or danger sign against the shop manager (as personal liability) and against the manager's employer in the baker's shop under the principle of vicarious liability. The second is his claim for personal injuries sustained caused by negligent driving against the ambulance driver based on his personal liability and against the hospital or the driver's employer under the principle of vicarious liability. Crates has a claim for damages against the workman Eddy for his negligence and against Eddy's employer, Divies under the principle of vicarious liability. Crates may likewise have a claim for consequential economic loss. BIBLIOGRAPHY Cases Cited Lochgelly Iron and Coal Co. v. M'Mullan [1934] AC 1, 25 Burton v. Islington HA [1992] 3 WLR 639, 655 Crowther v Kirklees Metropolitan Council, 2006 WL 4589038 McArthur v Strathclyde RC, 1995 S.L.T. 1129 D v AMF Bowling, [2002] C.L.Y. 4550 Nettleship v Weston (1971), [1971] 3 W.L.R. 370 Glasgow Corporation v. Muir [1943] A.C. 448, 457 Richley (Henderson) v. Faull. Richley, Third Party [1965] 1 W.L.R. 1454 Watson v. Thomas S. Whitney & Co. Ltd. [1966] 1 W.L.R. 57) Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd, [1973] Q.B. 27 Cattle v Stockton Waterworks Co (1874-75) L.R. 10 Q.B. 453 SCM (United Kingdom) Ltd v WJ Whittall & Son Ltd [1971] 1 Q.B. 337) Jones v BBC, 2007 WL 2187023 (QBD) Wilsons & Clyde Coal Company, Limited v English, [1938] A.C. 57 Latimer v A.E.C. Ltd.[1953] McDermid v Nash Dredging and Reclamation Co. Ltd. [1987] Majrowski v Guy's and St Thomas's NHS Trust, 1 A.C. 224 [2007] Wagon Mound No 1[1961] Cork v Kirby MacLean [1952] Barnett v Chelsea and Kensington Hospital Management Committee [1969] Piggott v Aulton (Deceased) [2003] R.T.R. 36 Barot v Morling [2002] C.L.Y. 3258 Froom v Butcher [1976] Q.B. 286 Wattleworth v Goodwood Road Racing Company Limited, [2004] EWHC 140 (QB) (A Child) v Commissioner of Police of the Metropolis, 2000 WL 33201536 (QBD) Condon v Basi, 2 All E.R. 453 (1985) Watson v Gray, 1998 WL 1043474 Rootes v Shelton, [1968] A.L.R. 33; (1967) 41 A.L.J.R. 172 (HC (Aus)) Blake v Galloway, 3 All E.R. 315 Leebody v Ministry of Defence, [2001] C.L.Y. 4544 (CC (Bristol)) Pitcher v Huddersfield Town Football Club Ltd, Unreported (QBD) Richardson v Davies, [2006] C.L.Y. 2879 (CC (Medway)) McNamara v. Duncan [1979] A.L.R. 584 Donoghue v. Stevenson [1932] A.C. 562, H.L.(Sc.) Reg. v. Billinghurst [1978] Crim. L.R. 553 Lindesay v Lamb [2007] EWHC 2948 (QB) Bennett v Brinks Ltd [1999] C.L.Y. 1378 1999 WL 1111840 Kaye v Alfa Romeo (GB) (1984) 134 N.L.J. 451 Richley (Henderson) v Faull (Richley, Third Party)[1965] 3 All E.R. 109 Davies v Swan Motor Co (Swansea) Ltd [1949] 1 All E.R. Books B. S. Markesinis, S. F. Deakin. Tort Law; Clarendon Press, 1999. PWD Redmond and Peter Shears. General Principles of English Law, 1993 Read More