The Duty of Care - Essay Example

 In order to be able to advise the parties in the above situations it is necessary to examine the potential claims against each. This will involve looking at the rules on general negligence as well as professional negligence. The starting point in proving all claims for tort is establishing whether a duty of care was owed and by whom, whether there has been a breach of that duty and whether as a result of that breach the party has suffered harm. In all three cases there needs to be a discussion as to whether the party causing the damage owed the victim a greater degree of care as they were supposedly professionals in their field of work. As none of the parties have suffered physical harm as a result of the tort all three case will concentrate on pure economic loss and there will need to be a discussion on the rules regarding pure economic loss. With all claims for negligence it is necessary to discuss the foreseeability of the events to determine whether it was reasonably foreseeable that the person committing the tort ought to have foreseen the possibility that the harm caused might occur. It would appear obvious from the reading of the above that in each of the cases the parties owed the victims a duty of care to ensure that their actions did not cause harm to the victim or their property1. Proving that there has been a breach will depend on the foreseeability of the accident2. In all cases the loss is of a financial nature3. The courts may decide in some of these cases not to compensate for all the losses suffered as the courts will only make an award for the foreseeable amount of the loss. This could mean that the victim would not be fully compensated for their loss. In bringing claims for economic loss the courts sometimes have difficulty in assessing how much can be claimed. With the principle of the duty of care the courts will look at the proximity of the plaintiff to the damage caused4. This principle of proximity has been developed from the case of Donoghue v Stevenson5 and is generally applied after a duty of care has been established. In imposing liability the courts will consider the principle of ‘fair, just and reasonable’ which was made central to the case of Spring v Guardian Assurance Plc6. Donoghue v Stevenson was the first case to establish the neighbour test7 which conveys the general principle that ‘you must not injure your neighbour’. The neighbour test confers a duty on all persons to take reasonable care to avoid acts or omissions which that person ought to reasonably foresee might cause harm to another. Starting with the situation with Kevin it is obvious that he owed Shelley a duty of care not to cause damage to her property by the work he was carrying out. Difficulties could arise in this situation as there is insufficient information as to how Kevin damaged the gas supply. Shelley could argue that Kevin ought to have been more careful in the way he was laying the water main to ensure that he did not damage any other pipe work in the vicinity. As a counter argument Kevin might be able to show that he was not aware of the gas pipe being close to where he was working. Shelley could argue in return that as Kevin has already done this kind of work many times before he ought to have realised that there could be gas pipes close by and that his actions might cause damage to the pipes which could then effect any businesses in that locality. In assessing Kevin’s negligence the court will judge him by the standard of the reasonable man8. The standard for the reasonable man is not a predetermined standard and will vary according to the skills expected of any other person in the same line of work as the defendant. In this case this would mean that Kevin would be judged by the standard that would be expected of someone else who was involved with the laying of water mains9. It is likely in the above situation that Kevin would actually be working for a company rather than as an independent contractor. If this is indeed the case then Shelley should pursue an action against the company Kevin works for as well as against Kevin as the company are more likely to be able to afford to pay compensation then Kevin would be. Shelley could rely on the case of Thames Water Utilities Ltd v Digginwell Plant And Construction Ltd10. In this case the defendant caused damage to neighbouring properties when they used a JCB to dig up the road to affect repairs. The defendant attempted to argue that they were not liable on the basis that they had consulted a map showing the various pipe work under the road and that the water main that the hit was not mentioned. The court stated that although the maps were designed to assist contractors in knowing where pipe work might be located the defendant was wrong to rely on the maps being accurate. They court stated that the defendant’s owed a duty to the victims to check more carefully and that they should not have used a JCB as no degree of accuracy in digging could be guaranteed using a JCB. In this case it is unlikely that Kevin will escape liability for his actions as the gas supply was cut as a direct result of his actions. If the supply had been cut because the water main had collapsed without anyone being responsible for its collapse then Kevin might be able to avoid liability as was the case in Transco Plc v Stockport MBC11 where the courts were unable to apportion liability as no one had been working on the water main when it collapsed. Under the rules of vicarious liability if Kevin is employed by a company it is likely that the action will be against the company as they are more likely to be able to compensate Shelley for the loss. In Cleanaco Ltd v Revenue and Customs Commissioners12 the court held the company to be vicariously liable for the employee’s actions of failing to disclose the full profits of the company erroneously. The actions of the employees had not been deliberate and were due to lack of training; however the court still found the company liable. With regard to the claim of Sue against the building society for the negligent survey it is likely that they would argue that the surveyors were an independent company and that any court action should be brought against the surveyors direct. In bringing a claim Sue could rely on the case of Woolfson v Gibbons13 in which the court held that the plaintiff would not have entered into the purchase of the property had it not been for the survey issued by the defendant. The plaintiff continued with the purchase believing the property to be structurally sound when it fact it was not. In defending a claim with regard to the negligent survey the surveyor could rely on the case of Bank of Scotland v Fuller Peiser14. In this case the surveyor avoided liability on the grounds that he had been commissioned by the purchaser to carry out the evaluation and that the bank who lent the purchaser the money had not been expected to rely on the valuation in deciding whether to lend the money. The court agreed that the bank were not entitled to rely on the purchasers valuation and that they should have sought their own valuation prior to agreeing to the loan. The surveyor might also be able to avoid liability if they can prove that they were not asked specifically to comment on the extent of any repairs that might need doing to the property. This was held to be the case in Smith v Peter North and Partners15. A similar conclusion was reached in Wilson v DM Hall and Sons16 were the court held that the surveyor was not liable as he did not expect the plaintiff to rely on the valuation when deciding whether or not to purchase the property. With regard to Marianne she might have difficulty claiming against Brick Ltd as she would have been expected to have carried out her own survey of the property before deciding to buy. It would also appear from the information given above that Brick Ltd might not have known of the defect themselves. It would be difficult to bring an action against Brick Ltd without proof that they must have known of the defects. The local authority is also not likely to be held responsible as they employed independent consultants to carry out the survey. As the consultants were hired by the local authority the only persons that would be able to bring an action against the consultants would be the council. In essence Sue would have to file a claim against Brick Ltd who would in turn name the local authority in a joinder action and the local authority would then ask for the consultants to also be joined in the action. If Brick Ltd knew of the damage to the foundations then they would be liable to Marianne for having not informed her of the problem. This was held to be the case in Hilda’s Montessori Nursery Ltd v Tesco Stores Ltd17 where it was held that the damage that had been caused to the foundations by the trees should have been reported to the house purchaser. The court stated that the purchaser would not have gone through with the purchase had they been made aware of the defect. As mentioned above the difficulty in this case would be in proving that Brick knew of the defect. The conclusion that can be drawn from all the situations above is that Kevin would be likely to be held responsible for the damage caused by the gas main, although if he is employed by a company then they are more likely to be held responsible under vicarious liability. With Sue she could attempt to claim for the negligent survey, however, the surveyor could avoid liability on the basis that he was asked by the bank to carry out the survey and not by Sue. The surveyor might also avoid liability if he can show that he was not specifically asked to comment on repairs that might need doing. In the final situation Marianne’s claim against Brick might not succeed as she would have to prove that they knew of the defect. 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L.R. 2; 2001 G.W.D. 37-1411 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 Cleanaco Ltd v Revenue and Customs Commissioners VAT and duties Tribunal 11 January 2007 Donoghue v Stevenson [1932] A.C. 562 Hilda’s Montessori Nursery Ltd v Tesco Stores Ltd [2006] EWHC 1054 Jain v Trent Strategic HA [2006] EWHC 3019 Mountford v Newlands School [2007] EWCA Civ 21 (2007) 151 S.J.L.B. 164 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 Smith v Peter North and Partners [2001] EWCA Civ 1553; 82 Con. L.R. 126; [2002] Lloyd's Rep. P.N. 111; [2002] P.N.L.R. 12; [2002] 1 P. & C.R. 37; [2001] 42 E.G.C.S. 138; (2001) 98(41) L.S.G. 35 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 Thames Water Utilities Ltd v Digginwell Plant And Construction Ltd [2002] EWHC 1171; [2003] Env. L.R. 21; [2002] E.H.L.R. 20 Transco Plc v Stockport MBC [2003] UKHL 61; [2004] 2 A.C. 1; [2003] 3 W.L.R. 1467; [2004] 1 All E.R. 589; 91 Con. L.R. 28; [2004] Env. L.R. 24; [2003] 48 E.G.C.S. 127; (2003) 153 N.L.J. 1791; (2003) 147 S.J.L.B. 1367; [2003] N.P.C. 143; [2004] 1 P. & C.R. DG12; Times, November 20, 2003; Independent, November 25, 2003 Wilson v DM Hall and Sons [2005] P.N.L.R. 22 Woolfson v Gibbons 15 January 2002 2002 WL 45096 Read More