The Claim for Negligence - Law Cases - Essay Example

The Claim for Negligence - Law Cases   a)   Kevin negligently cut off the gas supply to Shelly’s factory while re-laying a water main in the road. The sudden loss of gas caused damage to some of the machines in Shelly’s factory. Until the gas supply was restored and the machines repaired Shelly suffered a huge loss of profits. b)   Sue is buying a house and goes to her local building society to arrange a mortgage. The mortgage company employ Notsogood, a firm of surveyors, to provide a report (at Sue’s expense) for them on the house she is hoping to buy. Notsogood are in a hurry and fail to report on some dry rot. Sue is shown the report by her building society. On the basis of this favourable report she buys the house. She later discovers the dry rot and has to spend a good deal of money to have it rectified.   c)Marianne has bought from Ann a house which is ten years old. When the house was built by Brick Ltd., the plans were approved by Greatshire local authority on the basis of a report of independent consulting engineers. The consultants had failed to report on a problem with the foundations. Cracks have now appeared in the kitchen wall which collapses and falls on Tom’s car which is standing beside it. Marianne is so worried by the state of the house that she sells it at £20,000 less than its market price. She wishes to sue Brick Ltd. I am British Law student so can you please use British English and british resources. That is a coursework from Tort law it is very,very important to use relevant cases and statues. At the moment we are using a book "Streets on Torts" 12th edition by John Murphy it is also important to use this book in the coursework. As a law student we have to argue everything all the time from both sides, it is not enough just to discribe sth, there has to be arguments. That coursework is very important so please, please no plagiarism. The starting point in a claim for negligence is to show that there has been a breach of a duty of care. In this particular situation there are several issues to be discussed in respect of liability. It is important to note in all of the above claims that no one has been physically injured in any of the occurrences and therefore all claims will be for pure economic loss1. In establishing who can be claimed against it is necessary to discuss the principles of negligence. Firstly it has to be shown that a duty of care was owed, that the duty of care was breached and that as a direct result of that breach harm was caused to the complainant. The test for a duty of care was established by the case of Donoghue v Stevenson2 which also established the principle of proximity and the neighbour test3. Under the neighbour principle the court established the general rule that ‘you must not injure your neighbour4’, and then went onto to establish who would be classed as your neighbour thereby developing the proximity principle. When applying the neighbour principle the courts will attempt to reach a conclusion that is ‘fair, just and reasonable’. This principle was applied in Spring v Guardian Assurance Plc5. Proving negligence also requires proving the foreseeability of the event that has occurred. The test for reasonable foreseeability requires the person asserting the fault caused to prove that the harm that has been suffered was reasonably foreseeable6. In order to be able to advise any of the parties in the above matters it is therefore necessary to decide who owes a duty of care to whom as a starting point. Beginning with Kevin it is obvious that he owes a duty of care to Shelley not to cause damage to her property by the work that he is doing. In judging whether he has breached that duty the courts would consider whether someone else in the same field of work as Kevin would have made the same error. One difficulty that might arise in the situation with Kevin would be his ability to pay compensation to Shelley for the damage especially if he is working for himself. It is likely given the work that he has been doing that he actually works for a company. This would mean that Shelley would be able to bring an action against his employers as they would be vicariously liable for the damage caused by him7. It may be difficult for the courts to make an exact award to Shelley for the damage caused as economic loss always causes problems for the courts. It is obvious that she should be compensated for any structural damage and the damage to the machines but it would be difficult to calculate the total amount of loss of profit that would be experienced by Shelley. This could mean that Shelley might lose a considerable amount of money as the courts will award what they decide is reasonable. The principle of the reasonable man varies for each and every case as there is no set standard. It is obvious that a higher standard will be required for a professional person such as a doctor then would be the case for a road sweeper8. In Kevin’s case the court will consider what qualifications should be required to carry out the work that Kevin does and then set the reasonable man standard at the level of someone in the same line of work as Kevin9. One case which might be useful for Shelley would be the case of Thames Water Utilities Ltd v Digginwell Plant And Construction Ltd10. This case is very similar to the situation above in that the defendant caused damage to properties in the locality by using a JCB to dig up the road. In this case the defendant fractured a water main which caused extensive damage to the properties. The defendants attempted to argue that the maps that they were working from were not up to date and therefore the pipe that they hit was not included in the plans. The court disagreed stating that the maps were only designed to assist in locating the pipes and that the defendants owed a duty to those affected to ensure that there was not any new pipe work that could be affected before using the JCB. It is highly unlikely that Kevin will avoid liability in this case though as mentioned above Kevin is more likely to be working for a company and so therefore it would be them that would have to compensate Shelley. In the second situation with Sue and the building society Sue would initially be claiming against the building society as she would not have gone ahead with the purchase had the valuation revealed the repairs that needed doing to the property. The surveyors who carried out the survey were independent of the building society and so therefore the claim should be against the surveyor and not the building society. The problem raised by this is that it was not Sue who commissioned the surveyors to carry out the survey but the building society. This would mean that Sue would not be able to bring a claim against the surveyor’s but the building society would be able to. In defence of her claim Sue could use the case of Woolfson v Gibbons11. In this case it was decided that the surveyors were liable as the plaintiff would not have entered into the contract if they had been informed that the property was structurally in need of substantial repairs. By contrast the surveyor could defend against a claim from Sue on the grounds that the report they prepared was not for her but had been prepared at the request of the building society. This argument was used in the case of Bank of Scotland v Fuller Peiser12. The court felt in this case that it would be wrong for the surveyor to be expected to know that a third party would be relying on his report in order to decide whether to proceed with the purchase. In the case of Smith v Peter North and Partners13 the surveyor was able to avoid liability by proving that he had not been asked to comment on the need for repairs and had just been asked to give a valuation of the market price of the property. Surveyors have also avoided liability where they have not been specifically informed that the person requesting the survey intends to rely on that survey to decide on whether to proceed with the purchase14 In the final situation with Marianne there are two areas where liability has to be discussed. Firstly there is the issue regarding the wall collapsing as a result of problems with the foundations and secondly the damage caused to Tom’s car when the wall fell on it. In essence Tom should be claiming against Marianne as the damage to his car has been caused by her wall falling on it. Marianne is proposing claiming from Brick for having not informed her of the problem with the foundations. There are several problems with the claims in these areas. Firstly Marianne would have to prove that Brick knew of the problem with the foundations when they sold the house to her. This could be difficult as they were not the ones that commissioned the consultants to carry out the structural survey. This was ordered at the request of the local authority. There is no mention within the problem above to state that Brick knew of the existence of the problem. If this indeed is the case then Marianne would not be able to bring a claim against them for having not told her. As with the situation above with the building society Brick would not be able to bring an action against the consultants as they were not the ones that commissioned them to carry out the work. The local authority would be able to bring such an action. This would become what is known as a Part 20 case15 where Tom brings an action against Marianne, who subsequently requests that Brick be joined in the action. Brick would then be entitled to insist in the local authority also being joined in the action and as a final joinder16 the consultants could be included by way of complaint by the local authority17. If Brick had known of the problems before selling to Marianne they would be liable for the damage caused for having not disclosed this information to her. In the case of Hilda’s Montessori Nursery Ltd v Tesco Stores Ltd18 the courts found that the defendant’s were liable for the damage caused to the plaintiff’s property as they had not told them of the problem when they purchased the house. Tom should be able to claim from Marianne for his damaged car as she should be covered by buildings insurance which protects not only the homeowner but also those that are visitors to the home owner’s property. When looking at all of the above it is obvious that Kevin is liable, as is the surveyor and the consultants, however, Kevin is the only one that could be directly liable to the plaintiff. In both the other cases the plaintiff’s have not been directly involved with the person at fault. It is difficult to decide who will win in each of these cases, however, in all cases there is a strong possibility that the victims might not receive the full amount they wish to claim as the courts will award an amount that is just and fair. In Sue’s case the amount claimed or loss of profit is most likely to be affected as the courts have difficulty assessing potential losses. 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 Rogers, W V H Rogers, Winfield and Jolowicz on Tort, 17th Ed, Sweet & Maxwell Rose, FD, Statutes on Contract, Tort & Restitution, 10th Ed, 2000, Blackstone’s Weir, T, A Casebook on Tort, 8th Ed, 1996, Sweet & Maxwell Weir, T, Tort Law, 2002, Oxford University Press Table of Cases Baker v Quantum Clothing Group Ltd [2007] EWCA Civ 750 Bank of Scotland v Fuller Peiser 2002 S.L.T. 574; 2002 S.C.L.R. 255; [2002] P.N.L.R. 13; 2002 Rep. 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 Donoghue v Stevenson [1932] A.C. 562 Hilda’s Montessori Nursery Ltd v Tesco Stores Ltd [2006] EWHC 1054 L v Reading BC [2007] EWCA Civ 1313; Times, December 27, 2007 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 PR Records Ltd v Vinyl 2000 Ltd [2007] EWHC 1721 (Ch) 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 Wilson v DM Hall and Sons [2005] P.N.L.R. 22 Woolfson v Gibbons 15 January 2002 2002 WL 45096 Read More