Tort Laws in the UK: Case - Essay Example

UK Tort Laws: Case Introduction Tort law offers an alternative way for non-criminal issues between two parties to be solved1. In England, tort law makes up a great deal of the law and helps to solve civil cases. Tort law deals with injury caused in the context of duty of care where one party’s action, or inaction, leads to some harm to another party. The harm can be bodily harm, economic loss or psychiatric injury. With regard to the case of Hesther Bloemenek, there are several issues that come up. The first issue is the issue between Bloemenek and Gladys. Bloemenek vs. Gladys It this situation it is evident that Gladys suffered a bodily harm that was as a result of the poor safety with regard to naked electric wiring. She also suffered further harm for falling as a result of the electric wire and thus injuring her spine cord. In this case, Gladys can choose to sue Bloemenek for negligent. If she chooses to d so, the issue will be to determine if Bloemenek had a duty of care with regard to the injury that Gladys suffered. Gladys could argue that Gladys had the duty of care to make sure that the whole building was good for human habitation. The fact that Bloemenek decided to start the business in this building would require that she had enured that everything was in order. Bloemenek’s decision to start the business there while some parts of the house were still not complete can be seen as a negligent of duty of care. It was also foreseeable that uncovered electric wires were likely to cause human injury. At the same time, it was also foreseeable that an aged building such as the one in which Bloemenek was starting her business would likely have some issues that would lead to human injury. To avoid this situation from happening, Bloemenek could have first renovated the whole building or with regard to the store room, she could have completely closed it off to prevent anyone from going there without knowing the danger that lurked. Instead, she decided to put the wine stock there and this therefore was indication that the room was safe for human habitation. English tort law requires that such a person be liable for their actions when they lead to such injury2. In her defense, Bloemenek can have a number of arguments against Gladys; Contributory negligence Contributory negligence refers to a situation where the claimant is seen to have contributed to her injury3. In such a case, the while the actions of the defendant are seen to have clearly contributed to the injury or loss of the claimant, the claimant negligent is also seen to have contributed to the same4. In such a case, the defendant may reduce the amount of settlement that the claimant can get. In the case between Bloemenek and Gladys, Bloemenek can argue that any reasonable person could have been able to know that the room was not completely safe. Apart from that, Gladys, because she was not an electrician should not have taken unto herself to fix the lighting system. By going to the room knowing that the house was an old one and that some of the room that were not used could have some danger, she willingly neglected the duty to protect herself. After all, she could have consulted with Bloemenek before going there. More so, when she found that the lights were not working properly, she could have consulted with Bloemenek for her to take the right action of know how the lights would be fixed, probably by calling for a qualified technician. Foresee ability In tort law, foresee ability refers to how much the event could have been easily predicated5. Bloemenek can also argue that it was not foreseeable to her that Gladys, or anybody for that matter, would go to the room without asking her, and then try to fix the lighting. This particular room was not part of the main premises of the business remises and so it was not expected that a person like Gladys could go there to do anything. If the accident could have happened at any of the main rooms, this could be taken as an act of negligence of duty of care on the part of Bloemenek. However, this was not the case. Vicarious liability Vicarious liability refers to a situation the negligent of duty of care is caused by a person for whom the defendant is responsible, such as an employee6. However, in the issue of independent contractors, the defendant is not considered to be liable for the action of the contractor in such actions, or inactions, lead to a tort7. If Bloemenek can prove that she had given the work of renovation to an independent contractor, Gladys case will not work against her. Remedies There are several remedies that can arise from the case between Bloemenek and Gladys if they decided to take the case to court. The first one is where Gladys is able to prove that Bloemenek failed in her duty of care by not renovating the room properly and also by not covering al electric wiring. In such a case, Gladys will be awarded full compensation. In the second instance, Bloemenek can prove that it was an issue of contributory negligence where even Gladys herself was also negligent. In such a situation, the court awards the whole compensation then calculates the amount that was due to the claimant’s negligence. They would therefore give her the difference. The third alternative is where Bloemenek is able to shift the duty of care to the contractor in this case and therefore there will be no compensation given to Gladys. Delivery lorry vs. Bloemenek Vicarious liability refers to the point where a third party is the cause of the tort due to his or her action/inaction. However, this can be adjusted as was seen in the of Honeywill and Stein Ltd v Larkin Brothers Ltd8 because independent contractors were involved. In the delivery men decide to sue her, Bloemenek can argue that the duty of care with regard to the faced was on the side of the contractor. This would however have to depend on whether she had hired an independent contractor. In fact, in this case, she could also decide to herself sue the delivery men for damage, since her façade was damaged. In this case, Bloemenek can argue that the delivery men had the duty of care to not park too close to the building. Furthermore, if she can prove that the vibration by the lorry was not at the expected level, that is, it was too much probably due to a faulty engine, she can further argue that the delivery men had he duty of care of making sure that the lorry was in good conditions, which thy neglected. In countering this argument, the deliverymen can argue on the principle of foresee ability. Bloemenek can also decide to sue the contractor in this case and argue that the contractor neglected his duty by not giving the right advice as to how soon the building should be used before the façade is firm enough not to cause harm. However, this would be depended on whether the contractor had done so in a formal way. Contributory negligence Bloemenek can also argue that the delivery men also contributed to the tort because it is their lorry that caused the façade to crumble, causing he disputed damage. If Bloemenek decided to go with this argument, she will need to indicate that the vibration of the lorry was as much a contributing factor in the resulting accident as the status of the façade itself. Bloemenek can also argue that the duty of care with reread to the damage caused by the facade was not ion her side but on the side of the contractor. The delivery men can on the other hand counter this argument by arguing that Bloemenek had the duty of care because a reasonable person should have known that a newly renovated house should take a few days before being habited. They can argue that Bloemenek did not have to have technical knowledge on the matter for her to know that there was possible harm lurking. Remoteness of negligence Bloemenek could formulate her argument on the issue of remoteness of the causation of the harm and the actual harm. She can argue that even though it was true that the injury was caused by the façade, the relationship between the two were too remote for her to take the reasonability. Bloemenek can also argue that the unfortunate event was not reasonable writing the foreseeable range of danger. She can argue that even though the causation of the event was the faulty façade, sthere was not way she could have foreseen that the vibration of the lorry would cause the facade to crumble done. After a, if she could have seen this occurring, she could have avoided it because the unfortunate incident also led to her incurring the economic cost of having to rebuild the façade. Settlements There are a number of settlements that can come from this case between Bloemenek and the delivery men. The first settlement is the situation where the judges find that Bloemenek had a duty of care that she neglected and that led to the loss by the delivery men. In such a case, the delivery men will be awarded the full compensation, to be paid by Bloemenek. The second scenario is where the court finds that it was an issue of contributory negligence where both party had some contribution to the issue. In such a case, she may give partial compensation to the delivery men, to be paid by Bloemenek. Thirdly, the court can find that the delivery men were the ones who had negligence of duty and therefore compensate Bloemenek, either partially or fully with regard to the loss she incurred for her faced being bought down by the vibration of the lorry. Last, the court can find that the negligence of duty of care was by the independent contract. In that case, the delivery men cannot sue the independent contractor since the proximity between them and the contract is beyond the threshold of what tort laws may allow. In such a case, Bloemenek can sue the contactor and can get either partial or full compensation. This can be informed by the principle of remoteness9. The case of Donoghue v Stevenson10 also informed this principle of proximity and set precedence. Tim’s mother vs. Bloemenek With regard to the case between Tim’s mother and Bloemenek, there are a number of issues that can come up with regard to duty of care. Tim’s mother can sue Bloemenek citing negligence of care with regard to the fenced-off area. In her argument, Tim’s mother can argue that even though Bloemenek had fenced off the area and placed warnings of danger and trespass, this did not apply to young children like Tim who had no cognitive ability to heed the warning11. At the same time, Bloemenek should have done a better job in not just fencing off the area but doing properly so that the young children could not have possibly managed to enter the area. Tim’s mother can cite the principle of occupier’s responsibility which was used in Cooke v Midland Great Western Railway12 and is supported by the Occupiers Liability Acts, 1957 and 1984. In this situation, the court ruled that the children should be compensated for the harm they got from their unfortunate curiosity. This applies in the case for Tim’s mother and Bloemenek. Bloemenek can counter this argument by citing the principle of contributory liability. While the child may have been harmed as a result of the fact that Bloemenek had not fenced off the dangerous area properly and because of the dangerous property in this area which was part of her estate, Tim’s mother was also a contributing factor in that she neglected the duty of caring and restricting her child so that he would not have to go to where danger was lurking. Every parent is responsible for their children and even if the boys were too young to be able to heed the warning of trespass in the unfortunate property, the parent was the one who should have protected the child. In countering this argument, Tim’s mother can argue that this kind of event was foreseeable, due to the fact that the children were likely to cross the fence despite the warning of trespass and the danger that lurked behind the fence. In such a case, this having been a clearly foreseeable event, Bloemenek had the duty of care of not just erecting the fence and placing the warning, but should have taken further actions of care such as announcing to the parents that they must be careful with their children so they do not go to this area. Tim’s mother can also argue that Bloemenek should have taken enough measures to make sure that the fence was enough to prevent such innocent children from entering. Settlements There are a number of settlements that can be derived from this case, depending on the principles of tort law that would seem to apply to this case according to the discretion of the court. In the first instance, the court can decide that Bloemenek had neglected her duty in that even though she put a fence and placed a warning, this only applied to adults and not children. In such a case, the court can cite Cooke v Midland Great Western Railway of Ireland and decide to give full compensation to Tim, or rather Tim’s mother. In the second instance, the court can decide that both parties, that is, Bloemenek and Tim’s mother had contributed each to some extent to the incidence and that both had neglected some duty of care . In such a case, they will offer partial compensation to Tim’s mother. Reference list: Boom Van & Helmut Koziol. (2004). Pure Economic Loss: Volume 9 of Tort and insurance law,. London, UK: Springer Publications. Alastair Mullis & Ken Oliphant. (2011). Torts: Palgrave Macmillan Law Masters. London, UK: Palgrave Macmillan. Casenotes, Casenote Legal Briefs. (2006). Torts. London, UK: Aspen Publishers Online. Christian von Bar & Ulrich Drobnig. (sellier. european law publ). The Interaction of Contract Law and Tort and Property Law in Europe: A Comparative Study. London, UK: sellier. european law publ. Cooke v Midland Great Western Railway of Ireland [1909] AC 229 . Donoghue v Stevenson [1932] UKHL 100 . Honeywill and Stein Ltd v Larkin Brothers Ltd [1934] 1 KB 191. Mark Lunney & Ken Oliphant. (2013). Tort Law: Text and Materials. Oxford, UK: Oxford University Press. Miquel Martín-Casals. (2006). Children in Tort Law, Part I: Children as Tortfeasors. London, UK: Springer. Paula Giliker. (2010). Vicarious Liability in Tort: A Comparative Perspective. London, UK: Cambridge University Press. Ulrich Magnus & Francesco Busnelli. (2001). Unification of Tort Law: Damages. LOndon, UK: Kluwer Law International. Ulrich Magnus & Miquel Martín. (2004). Unification of Tort Law: Contributory Negligence: Volume 8 of Principles of European tort law, . London, UK: Kluwer Law International. Read More