Whether Joan Has a Claim in Tort against Barber - Essay Example

158038 In order to establish whether Joan has a claim in tort against Barber it is necessary to establish whether a duty of care1existed between theparties, whether there has been a breach of that duty2 and finally whether as a result of that breach Joan has suffered some sort of financial loss3 or physical harm4. Generally speaking where personal injury is property damage is concerned the test for breach of duty is simpler than where the damage is pure economic loss or nervous shock. When establishing whether a duty of care is owed the court examine the proximity of the claimant to the damage caused5. Proximity has evolved from the straightforward test that was applied in Donoghue v Stevenson6 and seems to be applied after the duty of care has been determined. In Spring v Guardian Assurance Plc7 the House of Lords seemed to emphasise the importance of the ‘fair, just and reasonable’ factor when making a decision on the imposition of liability. In this case the judge held that that an employer who provided a reference in respect of an employee to a prospective future employer owed a duty of care to the employee in respect of the preparation of the reference and was liable in damages for economic loss suffered as a result of the negligent preparation of the reference. In Donoghue and Stevenson8 the complainant went to a café with a friend who bought her a tumbler with ice cream. The shopkeeper poured a quantity of ginger beer from a bottle over the ice cream. The complainant drank from the tumbler and when her friend topped up the drink from the bottle the remains of a decomposed snail floated out of the bottle. As a result of this the complainant became ill. As there was no contractual relationship between the complainant and the shopkeeper the House of Lords were asked to consider whether the manufacturer if the ginger beer owed a duty of care to the ultimate customer. This led to the formation of the neighbour test9 the general principle of which was that ‘you must not injure your neighbour’. Under this test all persons must take reasonable care to avoid acts or omissions which that person can reasonably foresee would be likely to injure their neighbour. In defining the term neighbour the Lords in this case decided that a neighbour is a person or persons who are so closely and directly affected by the actions of the offender that the perpetrator ought to reasonably have had them in contemplation as being so affected. In Heaven v Pender10 the notion of proximity was applied by Lord Esher. In this particular case the court held that the plaintiff, being engaged on work on the vessel in the performance of which the defendant, as dock owner, was interested, the defendant was under an obligation to him to take reasonable care that at the time he supplied the staging and ropes they were in a fit state to be used, and that for the neglect of such duty the defendant was liable to the plaintiff for the injury he had sustained. Brett, M.R also stated that whenever one person is by circumstances placed in such a position with regard to another, that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger. Similarly in Le Lievre and another v Gould11 Lord Esher made the point that ‘Heaven and Pender established that, under certain circumstances, one man may owe a duty to another, even though there is no contract between them. If one man is near to another, or is near to property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property’. A L Smith LJ went on to state ‘The decision of Heaven v Pender was founded upon the principle that a duty to take due care did arise when the person or property of one was in such proximity to the person or property of another that, if due care was not taken damage might be done by the one to the other.’ It would appear that using the above proximity test that Barber does owe a duty of care to Joan, so the next point she needs to prove is that there has been a breach of that duty. In order to prove this Joan would have to show that Barber has been negligent12. The court judge this objectively first by deciding on the appropriate standard against which the defendant is to be judged and then by establishing whether on the balance of probabilities the conduct13 of the defendant has failed to reach the required standard14. The basis standard is that which is expected of the reasonable man15. This can be affected by the skill of the defendant in their line of work. For example a higher standard would be set for a doctor16 than for a road sweeper. Damage can also be assessed where the harm complained of arises from a decision by the defendant to engage in a particular activity. The court approaches liability on the basis of risk assessment. In Collins v Snowdome17 the claimant claimed damages for personal injuries sustained whilst undertaking sporting activities at the premises of the defendant. The claimant had suffered a soft tissue injury to her neck while participating in the activity of "tubing", which involved descending a section of the defendant’s artificial ski slope whilst sitting on an inflatable inner tube. At the end of the slope, there was a counter slope and foam filled buffers were positioned there as a means of slowing and stopping the tube and its passenger. The claimant had worn a safety helmet and had received safety advice and had also signed a document which confirmed the activity was of an extreme nature and that she participated at her own risk. The claimant submitted that the piste should have been monitored more closely to reduce speed, in particular that the defendantS should have raked the piste, warned the claimant specifically of potential injury to her neck, and advised her to brace just before the point of impact with the buffers. In this case it was held giving judgment for the defendant that the defendant had failed to take reasonable care for the claimant’s safety was not permissible on the evidence. The defendant was not in breach of the duty of care owed to the claimant as its lawful visitor under the Occupiers Liability Act 1957 s. 2. The defendant had given a clear warning for the potential for personal harm from the activity and it was not relevant to the issue of negligence whether or not the claimant was specifically warned of a risk of injury to her neck. Participants were provided with protective equipment and were given verbal safety instructions before the activity began. There were designated lanes for the descent and a series of foam filled buffers on a counter slope at the bottom of the slope were designed to stop the tubes. The defendant had undertaken a risk assessment which had identified the potential risk involved to tubers as they were brought to a stop at the end of the slope. The defendant had tested three alternative stopping methods and adopted the one offering the best protection. The success of the chosen method was borne out by the very few instances of accidents recorded in the accident book. There was no conclusion as to whether the claimant should have been advised to brace before impact, save that there was no evidence to suggest what the outcome of that would have been. It is usually the duty of the plaintiff to prove the negligence18 of the defendant except where the damage would not have occurred if the defendant had taken proper care19. In circumstances where there is evidence to show that the damage caused would not have been caused had the defendant been exercising proper care the defendant will be liable unless he can give a reasonable explanation as to how the damage occurred20. The test for the reasonable man has been described as ‘the man on the Clapham omnibus. In Hall v. Brooklands Auto-Racing Club21 it was held that it was the duty of the appellants to see that the course was as free from danger as reasonable care and skill could make it, but that they were not insurers against accidents which no reasonable diligence could foresee or against dangers inherent in a sport which any reasonable spectator can foresee and of which he takes the risk, and consequently that there was no evidence to support the verdict of the jury. It could be argued in this case that Barber was negligent by putting the colorant into bottles that did not carry a warning as to the possible side effects or problems that might occur if these products are not used correctly. It is reasonably foreseeable22 that if the bottles do not contain instructions then those using the contents could use more then they are supposed to or fail to check a customers skin reaction to the chemical before applying it on their hair. Joan could rely on Nash v Sheen23 where it was held that an application of a "tone-rinse" to the plaintiffs hair without her consent by the defendant, a hairdresser to whom she went for a permanent wave, was a trespass, and that the dye in the rinse having caused the plaintiff a painful rash, she was entitled to GBP 450 damages. If Joan can satisfy the courts that Barber’s actions are negligent and that the harm caused was reasonably foreseeable she is likely to be successful in her claim against Barber as she has suffered physical harm. She is likely to be able to prove that the scalp reaction and the hair loss is as a direct result of the use of the colorant but she may well have difficulty in proving that the rash on her arms and back are also caused by the colorant as it is unlikely that the colorant would have come into direct contact with her arms and back. In general terms there are a number of defences that a defendant can attempt to put forward when faced with a claim for negligence. The defence of consent or necessity are in general only in relation to specific torts. It is unlikely that necessity could be argued in this instance but probable that consent may be used as a defence. It is unlikely that a claim for contributory negligence would be successful as the plaintiff has not one anything that has caused the chemical to damage her hair and scalp in such a way. If Joan was suffering from some form of skin complaint or had allergies to certain chemicals which she knew about but failed to inform Barber of before the treatment then Barber may well be able to establish a claim for contributory negligence on the grounds that Joan would have been advised against having the colorant applied. Barber could rely on the case of Ingham v Emes24 where the hair dye used on the plaintiff resulted in dermatitis being caused. In this case the court held that the customer could not recover on the implied term in the contract because in making known the particular purpose for which the dye was required she should have disclosed her allergy, and she had not done so The defence of volenti non fit injuria is sometimes described in terms of consent. In this instance it could be interpreted as a voluntary assumption of risk by the plaintiff. In Nettleship v Weston25 the court Lord Denning MR stated that ‘knowledge of the risk of injury is not enough. Nor is a willingness to take the risk of injury. Nothing will suffice short of an agreement to waive any claim for negligence. the plaintiff must agree, expressly or impliedly, to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant: or more accurately, due to the failure of the defendant to measure up to the standard of care that the law requires of him.’ Under that Law Reform (Contributory Negligence) Act 1945 the apportionment of liability in cases of contributory negligence comes into affect where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons26. In this particular case it is unlikely that Barber would rely on this as a defence as Joan has not done anything herself that would cause the harm complained of. If Joan had used some chemical on her hair prior to her treatment by Barber and the 2 chemicals had reacted and caused the injury complained of then Barber could rely on this as a defence. In this case Barber is more likely to rely on the defence of volenti non fit injuria onn the grounds that by Joan consenting to having her hair coloured she was also consenting to the risk involved in the process such as an allergic reaction or damage to the hair itself leading to possible hair loss. In order for Barber to succeed in a defence on these grounds Barber would have to show that Joan had been made aware of the dangers that were inherent in the treatment and had given her consent on the basis that she was aware of the risks but willing to take those risks. It is unlikely that Barber would succeed in any defence against the claim for negligence as the person applying the colorant is unlikely to have informed Joan of the problems that might be caused by using the dye as the bottle in which the chemical was placed was not labelled and did not carrying any specific instructions or warnings. In this particularly case my advice to Joan is that she is likely to succeed in her claim against Barber as she can prove that she was owed a duty of care and that Barber was negligent in placing the dye in unmarked bottles as those using the dye were unable to inform clients of any risks involved in using the dye as well as the correct procedure for the application of the contents. Bibliography Civil Procedure Volume 2, The White Book Service, 2002, Sweet and Maxwell Cooke, J, Law of Tort, 7th Ed, 2005, Pearson Education Elliott, C & Quinn, F, Tort Law, 2005, Pearson Education Harvey & Marston, Cases & Commentary on Tort, 3rd Ed, 1998, Pitman Publishing Rose, FD, Statutes on Contract, Tort & Restitution, 10th Ed, 2000, Blackstone’s Weir, T, A Casebook on Tort, 8th Ed, 1996, Sweet & Maxwell Table of Cases AB v Nugent Care Society (formerly Catholic Social Services (Liverpool)) [2006] EWHC 3031 Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582 [1957] 2 All E.R. 118 [1955-95] P.N.L.R. 7 (1957) 101 S.J. 357 Burnett v Grampian Fire and Rescue Service 2007 S.L.T. 61 2007 G.W.D. 1-11 Collins v Snowdome [2006] 11 C.L. 347 Corr v IBC Vehicles Ltd [2006] EWCA Civ 331 [2007] Q.B. 46 [2006] 3 W.L.R. 395 [2006] 2 All E.R. 929 [2006] I.C.R. 1138 (2006) 103(16) L.S.G. 24 Times, April 21, 2006 Independent, April 6, 2006 Donoghue v Stevenson [1932] A.C. 562 Farraj v Kings Healthcare NHS Trust [2006] EWHC 1228 [2006] 2 F.C.R. 804 [2006] P.I.Q.R. P29 (2006) 90 B.M.L.R. 21 (2006) 103(25) L.S.G. 29 Given v James Watt College 2007 S.L.T. 39 2007 G.W.D. 1-13 Haimes v Watson [1981] R.T.R. 90 Hall v. Brooklands Auto-Racing Club (1933) 1 KB 205. Heaven v Pender (t/a West India Graving Dock Co) (1882-83) L.R. 11 Q.B.D. 503 Hiles v South Gloucestershire NHS Primary Care Trust [2006] EWHC 3418 Ingham v Emes [1955] 2 Q.B. 366 [1955] 2 W.L.R. 245 [1955] 2 All E.R. 740 (1955) 99 S.J. 490 Jain v Trent Strategic HA [2006] EWHC 3019 Kelly-Madden v Manor Surgery [2007] I.C.R. 203 [2007] I.R.L.R. 17 Le Lievre v Gould [1893] 1 Q.B. 491 Lillywhite v University College London Hospitals NHS Trust [2005] EWCA Civ 1466 [2006] Lloyds Rep. Med. 268 Mountford v Newlands School [2007] EWCA Civ 21 (2007) 151 S.J.L.B. 164 Nash v Sheen Times, March 13, 1953 Nettleship v Weston [1971] 2 Q.B. 691 [1971] 3 W.L.R. 370 [1971] 3 All E.R. 581 [1971] R.T.R. 425 (1971) 115 S.J. 624 Pearson Education Ltd v Charter Partnership Ltd [2007] EWCA Civ 130 Times, March 7, 2007 Revill v Newberry [1996] Q.B. 567 [1996] 2 W.L.R. 239 [1996] 1 All E.R. 291 (1995) 92(44) L.S.G. 31 (1996) 146 N.L.J. 50 (1995) 139 S.J.L.B. 244 Times, November 3, 1995 Independent, November 10, 1995 Sasin v Australia (1984) 68 Fed. L.R. 404 Spring v Guardian Assurance Plc [1995] 2 A.C. 296 [1994] 3 W.L.R. 354 [1994] 3 All E.R. 129 [1994] C.L.C. 766 [1994] I.C.R. 596 [1994] I.R.L.R. 460 (1994) 91(40) L.S.G. 36 (1994) 144 N.L.J. 971 (1994) 138 S.J.L.B. 183 Times, July 8, 1994 Independent, July 12, 1994 Willis v Nicolson [2007] EWCA Civ 199 Zarb v Odetoyinbo [2006] EWHC 2880 (2007) 93 B.M.L.R. 166 Table of Statutes Law Reform (Contributory Negligence) Act 1945 Read More