Hanby Borough Council Cases - Essay Example

 The Hanby Borough Council may be liable for claims of negligence that can be brought by both Abi and Burton for repairs needed to both properties for damages caused by the flood. In the case of Abi, the Council may be liable for breach of duty of care and omission in negligence for the costs she has incurred on repair of her house. The Council may also be held liable for her hospital costs to treat her injury incurred during rescue. However, there is a possibility that the Council may not be held liable for payment of renovation costs for Abi’s house, as well as her alternative accommodation, unless Abi is able to prove that such renovation was mandated by the damages caused due to flooding. In the case of Burton, the Council will be liable in negligence for damages to the premises and repair costs. However, where the question of potential losses of profit of 50,000 pounds is concerned, it appears unlikely that the Courts will hold the Council responsible for compensation of such purely economic losses. According to Alderson B, negligence is defined as “the omission to so something which a reasonable man….would do, or doing something, which a prudent and reasonable man would not do.”(Blyth v Birmingham Waterworks Co (1865) at 784). Two kinds of omissions have been identified; (a) a failure to take appropriate precautions and (b) passive inaction, with the general rule being that there is no duty on a person to take action to prevent harm from befalling others. (Smith v Littlewoods organization Ltd (1987)).The Hanby Borough Council may be liable for the failure to take adequate precautions to ensure that flood protection was provided. The omission by passive inaction could also apply in the case of Hanby Council, however it is a public body and therefore has a duty of care to the public to safeguard the premises and prevent the occurrence of flooding. While the general rule of negligence by omission through passive inaction may not impute a duty to prevent harm from befalling others, some of the exceptions that have been identified are (a) when there is an undertaking by the defendant (Barrett v Ministry of Defence (1995) or (b) when the defendant has control over the land or something which could be dangerous if interfered with. (Dominion Natural gas v Collins and Perkins (1909). Hanby Council had control over the land which had flooded before and caused damages. It had already been warned to improve the defences five years ago, which is equivalent to an undertaking being provided by the public body - Hanby Council for the protection of residents. But as of the date of the occurrence of the flood, they had still not completed the work on the flood barrier, despite the passage of five years, which in turn caused the damages to Abi and Burton. Therefore, the Council may be held guilty of an act of omission under negligence. Negligence is also equated to a falling below the standard of the ordinary reasonable person.(Bolan v Friern Barnet Hospital (1957); Wilsher v Essex Health Authority (1986).) Applying this precedent, the Hanby Council’s failure to erect the flood barrier even after five years, especially in view of prior knowledge about possible flooding, would fall below the standards of care of the ordinary reasonable person. In terms of assessing whether there has been a breach of duty due to a negligent act, the Courts will examine if there was a known risk that was involved by the negligent act which caused the damage.(Haley v London Electricity Board (1964). The failure to complete the flood barrier may qualify as a known risk, since the land had flooded before. Moreover, damages due to further flooding were also reasonably foreseeable. Kent v Griffiths (2000); Jolley v Sutton LBC (1998)). Since the land had already flooded before, therefore it was reasonably foreseeable that such an event would occur again and hence, there may be a duty of care imputed upon Hanby Council to have completed the flood barrier expeditiously. In view of prior flooding that had occur, the Courts may consider that it is fair , just and reasonable that the law impose a duty upon the Hanby Council to complete the flood barrier expeditiously to prevent further damage and its failure to do so would constitute a breach of that duty. (Capital v Hampshire County Council (1997); Vowles v Evans and Anr (2003). Abi would also be a valid claimant in negligence and breach of duty of care for the injuries she has suffered. In the case of Wagner v International Railway (1921) Cardozo J stated : “the wrong that imperils life is a wrong to the imperiled victim…” Since Abi has been placed in a perilous situation due to the flood and had to be rescued, therefore Hanby Council may have to compensate her for her expenses in the hospital for treatment of her injury, because such an injury might never have occurred if she had not needed rescue from a flooded house, which placed her under peril. While a claimant for a breach of duty of care may be required to produce evidence to demonstrate a lack of reasonable care on the part of the defendant, in this instance, the maxim res ipsa loquitor, i.e, the thing speaks for itself may apply, thereby holding the Council liable. (Scott & London v St. Katherine Dock Co (1865). While Abiu’s injury was not directly caused by the Hanby Council but by her rescuers, nevertheless, she may be able to establish that their negligence in repairing the flood barrier amounted to a material contribution to the injury. (Wilsher v Essex Health Authority (1986)). In so far as damages to Burton’s business are concerned, recoveries have generally not been allowed by the Courts for damages that may interrupt a plaintiff’s ability to carry on his business. (Cattle v Stockton Waterworks (1875). On this basis therefore, it appears unlikely that Burton can successfully claim the lost profits of 50,000 pounds. This amount constitutes a purely economic loss, which has occurred due to Burton’s inability to carry on his business, for which recoveries may not be possible. However, the Courts have also made a distinction between economic losses which are non recoverable and economic losses arising directly out of physical damage.(Spartan Steel and Alloys v Martin (1972). While losses arising directly out of the physical damage were held to be recoverable, purely economic losses unconnected with physical damage were not, according to the precedent laid out in Cattle v Stockton Waterworks (1875). Therefore Burton may be able to claim damages from the Hanby Council for repairs to his property caused by the flood damage and the Council may be ordered by the Court to compensate Burton for the amounts he has spent on repairs to his property. However, the amount of 50,000 pounds of potential profit loss which is also being claimed is a speculated amount and there is no guarantee that Burton would have actually made profits to the tune of 50,000 pounds. Therefore, this claim may be dismissed by the Courts as purely economic losses which are also speculative amounts and which are not directly connected to the physical damage. Hence, they may not be recoverable. In the case of Abi however, the Council may be liable for compensation for the repairs that have been carried out by Abi because such an expense has occurred directly as a result of the physical damage that has been caused to her property. However, in arriving at a determination on whether or not Hanby Council is to compensate Abi for the extensive renovation as well as her alternative accommodation during the period of renovation, the Courts may require Abi to furnish proof that such renovation was indeed necessary, over and above the basic repairs that needed to be carried out in order to restore the damages caused by the flood. In general, Courts have been reluctant to enforce claims of liability for negligence by public authorities , because (a) it could lead to unduly defensive practices by such defendants seeking to avoid such claims and produce a detrimental impact on the performance of their duties (Hill v CC of West Yorkshire (1988) and (b) award of damages would also reduce resources available to public authorities in performing its duties (X (Minors) v Bedfordshire CC (1995). On this basis therefore, the Court is likely to limit the extent of damages that may be claimed by both Abi and Burton. The Council may have to compensate for repairs to properties of both the claimants and may also be held liable for Abi’s injuries and her hospital treatment. However, compensation for Burton’s estimated losses in potential profit may not be granted by the courts and the Council may not be held liable for them. Similarly, unless Abi can prove that the renovation was in fact necessitated because the extent of the damage was to such a high degree, it appears unlikely that the Court would hold Hanby Council liable for such extensive renovation costs and Abi’s alternative accommodation costs. References: Books: * Rogers, W.V.H., 1998. “Winfield and Jolowicz on tort.” Sweet and Maxwell * Weir, Tony, 2004. “A casebook on tort” Sweet and Maxwell Cases cited: * Barrett v Ministry of Defence (1995) 3 All ER 87 * Blyth v Birmingham Waterworks Co (1865) 11 Exch 781 * Bolan v Friern Hospital (1957) 2 All ER 118 * Capital v Hampshire County Council (1997) QB 1004 * Cattle v Stockton Waterworks (1875) LR 10 QB 453 * Dominion Natural gas v Collins and Perkins (1909) AC 640 * Haley v London Electricity Board (1964) 3 All ER 185 * Hill v CC of West Yorkshire (1988) 2 All ER 238 * Jolley v Sutton LBC (1998)1 Lloyd’s Rep 433 * Kent v Griffiths (2000) 2 All ER 474 * Scott & London v St. Katherine Dock Co (1865) 3 H &C 596 * Smith v Littlewoods organization Ltd (1987) 1 All ER 710 * Spartan Steel and Alloys v Martin (1972) 3 All ER 557 * Vowles v Evans and Anr (2003) EWCA Civ 318 * Wagner v International Railway (1921) 133 NE 436 * Wilsher v Essex Health Authority (1986) 3 All ER 801 * X (Minors) v Bedfordshire CC (1995) 3 All ER 353 Read More