The Tort of Negligence and Film Critic's Rights against CableFast - Assignment Example

1. With regard to Abigail’s rights against CableFast for breach of contract, there is no contention that the contract was a validly formed contract satisfying the formalities of offer, acceptance and consideration (Chitty, 2007). As a film critic, Abigail made it clear that she would require super fast and uninterrupted broadband connection continuously for the purposes of her job and that this was fundamental to her requirements in entering into the contract with CableFast. Accordingly, the fact that the connection did not work between 6pm and 9pm and was extremely slow points towards false representation and it is arguable that this misrepresentation gives Abigail the right to repudiate the contract on the misrepresentation constituting a condition (Poole, 2006). The burden would be on Abigail to prove this, which may be difficult on grounds that there is no record of her telephone conversation with CableFast. Additionally, as the contract was for the supply of services, the Supply of Goods and Services Act 1982 implies terms into Abigail’s contract, which cannot be excluded and therefore enforceable against CableFast. The 1982 Act provides that in a contract for the supply of services and where the supplier acts in the course of a business, there will be an implied term that the supplier will exercise reasonable skill and care in delivering the services. The 1982 Act requires the services to be provided to a satisfactory quality and fit for the purpose intended. Therefore, if Abigail can establish breach of these implied terms she will have a claim for breach of contract. The fact that the broadband connection was very poor will operate in Abigail’s favour in establishing breach. Alternatively, as the contract is a business to consumer contract and was concluded via telephone, it will constitute a contract at a “distance” under Regulation 3 (1) of the Consumer Protection (Distance Selling) Regulations 2000 (the Regulations). Most importantly for Abigail is the 7 day cooling off period provided by the Regulations, which enable consumers to cancel the contract during a seven day period. Whilst the Regulations permit businesses to stipulate the conditions and procedures for withdrawal, the right to cancel cannot be derogated from and information regarding the procedure for cancellation must be supplied to the consumer (Regulation 11). As Abigail’s contract was for the provision of services, Regulation 12 provides her with the right to cancel within 7 working days from when the order is made. Therefore, if Abigail can establish that the term regarding the fast connection and uninterrupted service was a fundamental term of the contract, then she will be able to claim breach of contract for misrepresentation. Additionally, the implied terms of the Supply of Goods and Services Act 1982 suggest that she clearly received a standard of service below what she was reasonable entitled to expect and therefore this will bolster her position in alleging breach of contract. Alternatively, as a consumer contract concluded by telephone Abigail will also have rights to cancel the contract under the Regulations within 7 days from when the order was made. Task 2 With regard to Abigail’s legal position vis-à-vis Slipstream films, there are clearly issues with regard to the legality of the contract. A void contract is an invalid agreement the result of which nullifies any legal obligations between parties and is held to be void ab initio (Treitel, 2007). At common law, a contract is void ab initio if the contract commits a crime, tort or fraud (Treitel, 2007). If a contract is void ab inito, then the innocent party is entitled to claim damages for breach of contract (Chitty, 2007). Alternatively, if the agreement is valid, Slipstream has excluded liability for the civil and criminal liability in the contract. As Abigail is a consumer, the provisions of the Unfair Contract Terms Act 1977 (UCTA) will be relevant to determining whether the exclusion clause is valid. Section 2(2) provides that any exclusion or limitation of liability must satisfy the requirement of “reasonableness”. This is determined by the circumstances of each case and there are no hard and fast rules (Poole, 2006). The fact Abigail has unequal bargaining power under the contract with Slipstream will point towards the exclusion of liability for negligence being unreasonable and therefore invalid. With regard to the exclusion of liability for contractual liability, Slipstream cannot exclude liability unless the clause satisfies the requirement of reasonableness under section 3(1) of UCTA 1977. Accordingly, the fact that Slipstream film’s activities were unlawful in the EU points in favour of Abigail arguing that the contract was void ab initio and instituting legal proceedings against Slipstream films for breach of contract and compensation. If the contract is valid, the onus will be on Slipstream films to establish that the exclusion clause is reasonable. On the basis of the facts provided, coupled with Abigail’s position as a consumer, it is highly likely that the exclusion clause will be invalid. TASK 3 Fleming’s statement suggests that the post modern era has culminated in a rapid transformation of contemporary living, which has brought with it an increased risk of fatality. As such, the law of tort has been continually redefined to address this risk. In reviewing the tort of negligence, it is important at the outset to consider the theoretical justification for fault based liability in tort. Indeed, Hassan El Menyawi propounds that such an evaluation is essential to a meaningful comparison of the arguments for and against a no fault scheme in the tort of negligence (El Menyawi, 2002). El Menyawi argues that “moral values” underpin the current fault based liability for negligence in the framework of a system of “corrective justice”. The fundamental difference between the corrective system and the no fault system of distributive justice relates to the legal approach to the structure of interactions. For example, corrective justice centres on the “transaction” between two parties, whereas distributive justice is rooted in a distribution whereby compensation is awarded to members of a group (Lunney & Oliphant, 2008). Theoretically the corrective justice system centres on “correcting the wrongdoers wrongful act” and to this end, the tort of negligence has developed a legal notion of fault for the purpose of establishing liability (Lunney & Oliphant, 2008). However, some argue that the current scheme contradicts the theoretical purpose of corrective justice due to fault based liability being limited to the confines of a rigid test of duty of care, proximity and foreseeability (Lunney & Oliphant, 2008). The concept of fault or blameworthiness is intrinsically buried in the definition of “tort” derived from the Latin “tortus”, which means “wrong” under the concept of “wrongdoing” (Lunney & Oliphant, 2008. Despite moral concepts of fault and “wrong”, the inherent difficulty of policing morality through a legal framework is highlighted through the inconsistent judicial approach to fault in the tort of negligence, which correlates to Fleming’s statement regarding the pressures on the legal system and the objectives of tort compensation. Moreover, Fleming’s argument further correlates to the debate regarding tortious liability on the one hand and the introduction of no fault liability schemes on the other. This is in turn is supported by the judicial approach to the definition of tortious liability (Slapper, 2006). The starting point for approaching the concept of fault in negligence is the landmark case of Donoghue v Stevenson ([1932] AC 562), which asserted the general principle that a defendant must be in breach of a duty of care in order for liability to be established. The breach of this “duty of care” was defined as conduct that “a reasonable person would not do”. Accordingly, the negligence concept of fault is attributed to failure to reasonable precautions to avoid causing harm that is reasonably foreseeable. However, whether this approach can be equated with blameworthiness in the corrective sense is questionable (Beever, 2007). For example, in Nettleship v Weston (1971] 2 QB 691), a learner driver was held liable in negligence for injuries she caused to her instructor by incompetent driving. During the case, it was agreed that there was no doubt that the defendant was driving to the best of her limited abilities, however liability was still established due to satisfying the legal concepts of fault. Whilst justifications for a corrective justice system are sound in principle, the problem is that the practical approach of the legal concept of fault is far removed from the actual definition of fault and blameworthiness (Beever, 2007), which begs the question as to whether the current justifications for fault based liability in tort are valid. Indeed Feldthusen asserts that “the symmetry between loss and gain disappears when, as perhaps in a motoring accident, an instant’s inattention makes a person liable for millions of dollars”, which in his view contradicts “the dictates of our moral intuitions” (1993). The Nettleship v Weston case clearly highlights the limitations of fault based liability, which ignores these distinctions. This creates the undesirable position in law where an individual can face liability for a momentary loss of attention yet the negligence concept of fault fails to address wider concepts of wrongdoing and blameworthiness. Additionally, it reinforces Fleming’s observation regarding the staggering economic costs of civil liability claims and the difficulty of the tort of negligence in acting as a regulator between losses and eventual allocation of cost. The issues raised by fault based liability in negligence are particularly highlighted by claims for accident compensation. With regard to accident compensation claims in negligence, the tort liability rules appear to be concerned with loss shifting in imposing responsibility on a defendant for the loss suffered by the claimant (Atiyah, 2006). The theoretical basis for this is that the “defendant is some way to blame for that loss” (Atiyah, 2006). However, the growth of insurance as customary practice has introduced the notion of loss distribution, where the question is not who is to blame, but who can most easily bear the loss caused by a particular accident (Atiyah, 2006). For example, in Smith v Eric S Bush (1989] 2 WLR 790)_Lord Griffith asserted that: “The availability and cost of insurance must be a relevant factor when considering which of the two parties should be required to bear the risk of loss”. Whilst Lord Griffith’s comments are justifiable as a practical approach to the reality of accident compensation claims and as a justification for the introduction of a no-fault scheme; introducing elements of no fault liability through the back door compounds uncertainty in the current application of fault based liability in tort. It further creates uncertainty as to the definition of tort liability and actual risk allocation (El Menyawi, 2002). This is further compounded by the current inconsistency in enforcement of accident compensation claims. Indeed, the decision in Gardner v Moore ([1984] AC 548) suggests that the enforcement of “fault” in tortious liability for accident claims is selective and limited in considerations of where the loss lies. In turn, this approach arguably demonstrates the inherent limitations of a no fault scheme justified on grounds of insured risks and loss allocation under the current approach to tortious liability. Accordingly, Fleming’s statement clearly reflects the judicial approach to tortious liability in attempting to implement loss allocation. The inconsistent application of “fault” clearly creates uncertainty compounded by its inability to cover the wide range of circumstances that fall within the tort. Furthermore, as some element of culpability will inherently be linked to the effective running of a no-fault compensation scheme, this in itself highlights the fundamental need to reassess the law’s approach to the concept of fault. The fundamental problem is the arbitrary nature of the current application of fault. Accordingly any review of this area must consider change specific to certain claims and it is submitted that any proposed legislative reform should consider implementing separate guidelines in relation to concepts of fault in specific cases. TASK 4: CableFast ‘s(CF) potential liability in negligence to the individuals on Abigail’s street, will require the residents to establish that CF owed them a duty of care, CF breached this duty of care and the breach caused the residents actionable damage, which is not too remote. The test for establishing a legal duty of care was established in Donoghue v Stevenson ([1932] AC 562) where Lord Atkin asserted that a manufacturer owed a legal duty of care to the ultimate consumer of his product. In discussing duty of care as a legal concept, Lord Atkin established the “neighbour” principle: “You must take reasonable care to avoid acts or omissions which you cannot reasonably foresee would be likely to injure your neighbour”. Lord Atkins continued to define the term “neighbour” in the legal sense as being “persons who are so closely and directly affected by my act that I ought to reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.” The test for establishing a legal duty of care in tort has developed over the years and in Caparo v Dickman ([1990]1 ALL ER 568), the House of Lords confirmed the following three stage test to determine whether a duty of care exists: 1) Whether the consequence of the defendant’s actions were reasonably foreseeable; 2) Whether there was sufficient proximity to impose a duty of care; and 3) Whether it is fair, just and reasonable to impose a duty of care. The latter stage of the test is only applicable when the issue of whether a duty of care exists has to be determined by the courts (Hodgson & Lewthwaite, 2007). Accordingly, for the present purposes the first two questions of the test are relevant in determining whether CF owed a duty of care. In context of the current scenario, it must be established that it would be reasonable for CF to have foreseen that the damage was foreseeable and that CF should have taken precautions against this. It is clear that CF would have known that by negligently cutting through the electricity cable, they would have affected the power supply in the area and that as a result any businesses in the area would have been affected. Accordingly, the reasonably foreseeable test has been satisfied and the next question is whether there was sufficient proximity for CF to owe a legal duty of care. Although the possibility of harm was clearly foreseeable, Charles, Davina and Euanis may have difficulty in establishing proximity. The facts indicate that CF was undertaking maintenance work in the area and for Abigail and not specifically for the residents. The case of Anns v Merton London Borough ([1978] A.C. 728) asserted that the proximity test relies on a consideration of the nature of the relationship between the parties. The courts will consider whether the residents were a member of a group to which a duty of care was owed. For example, in Hill v Chief Constable of West Yorkshire ([1988] A.C. 175) it was asserted that although the police owed a duty of care to the public generally to catch criminals efficiently, it was not possible to define a particular group of potential victims to which a duty was owed for proximity purposes. If we apply this to the resident’s position, although the damage was foreseeable, it is questionable whether there was sufficient proximity for a duty of care. CF owed a general duty not to be negligent in undertaking its work, however if the electricity cable supplied a wide area, then a potential claim may fail on grounds of proximity and policy grounds (Conahan, 1999). However, as CF was working close to the resident’s business, it would have known that the businesses in the area would have been affected by the loss of power and on this basis proximity may be established. Therefore if the residents can establish sufficient proximity, the next step will be to prove that CF breached its duty. The standard of care to determine breach of duty is objective (Donoghue v Stevenson). The degree of care to be expected is founded on considering what a reasonable man, careful for the safety of his neighbour would do and requires a consideration of the degree of the likelihood of harm occurring, the cost and practicability of measures needed to avoid it and the seriousness of the consequences. In Nettleship v Weston (1971) it was asserted that “A man need not possess the highest expert skill…. It is well established that it is sufficient if he exercises the skill of an ordinary competent man exercising that art”. It is evident from the information provided that CF’s employee negligently cut into the cable and in the absence of any sufficient justification from CF, the doctrine of res ipsa loquitur applies and CF appears to be prima facie in breach of its duty of care. As a result of B’s breach, P must then prove that on the balance of probabilities the damage was caused in fact and in law by the negligence. The preliminary test for determining causation is the “but-for” test and whether the residents would not have suffered the damage “but-for” CF’s negligence (Cork v Kirby MacLean [1952] 2 ALL ER 402). On the basis of the facts, it is evident that damage to the cannabis plants, ceramic containers and the thesis was a direct result of CF’s negligence and therefore the causation requirement has been satisfied. The main issue now is whether or not the residents can claim for losses. It is a general principle of law that a tortfeasor is only liable for damage that is of a kind that is the natural and probable consequence of his wrongful act (Lord Scarman in Hodgson & Lewthwaite, 2007).Although it was clearly foreseeable that the power failure caused by CF’s negligence would cause loss of business to businesses in the street, if we consider each resident separately, the position is likely to be as follows: 1) With regard to Charles, it may be difficult to argue that the damage to the cannabis plants was a “natural and probable” consequence and therefore there is a significant risk that a claim for the street value will fail. In any event, as growing cannabis is illegal, even if the damage was foreseeable, CF would have a defence to a negligence claim on grounds of the illegality defence ex turpi causa non oritur actio. This defence prevents a claimant from seeking compensation if engaged in illegal activities at the time of negligence; 2) With regard to Davina, again her claim may fall on grounds of being unforeseeable; 3) With regard to Euanis, whilst the foreseeability test may be satisfied, any damages claimable may be reduced or negated by his contributory negligence in not saving the work as he was writing his thesis. In any event, even if with regard to Davina, the loss of business was foreseeable, the difficulty for Davina and indeed any of the residents in bringing such a claim is that claims for economic loss are problematic in negligence due to the objective of negligence to protect and compensate for physical damage. This was determined in Cattle v Stockton Waterworks ((1875) L R 10 QB 453), where the courts held that unless accompanying physical damage could be established, it was difficult for a claimant to recover damages for pure economic loss. This general presumption against claims for pure economic loss was also confirmed in Weller v Foot and Mouth Disease Research Institute ([1966) 1 QB 569( and Candlewood Navigation Corporation v Mitsui OSK Lined ((1985) 2 All ER 935). It is possible for a claim for economic loss to succeed if based on physical damage, however in the current situation, it is very likely that the physical damage to the plants and the ceramic containers will be considered to be too remote and therefore any associated claim for pure economic loss is unlikely to succeed. Bibliography Arno R Lodder, Henrik W.K Kaspersen., (2002) Edirectives: Guide to European Union Law on E-Commerce – Commentary on the Directives on Distance Selling, Electronic Signatures, Electronic Commerce, Copyright in the Information Society and Data Protection. Kluwer Law International. P. S Atiyah (2005). Sale of Goods.11th Edition Longman. Atiyah’s Accidents, Compensation and the Law. 7th Edition, Cambridge University Press (2006). 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Legislation & Websites Unfair Contract Terms Act 1977 Sale of Goods Act 1979 Supply of Goods and Services Act 1989 Sale and Supply of Goods to Consumers Regulations 2002 www.opsi.gov.uk Read More