All Possible Negligence Claims in the Business Law - Assignment Example

Critically discuss all possible negligence claims that could be brought in the below situations and advise the various parties of all the elements that would have to be proven in respect of such claims: Tort of Negligence: Elements – Duty of Care: The elements of negligence are duty of care; breach of that duty of care; causation, i.e. a causal link between the individual’s injury or property damage; and actual damage either to a person or to property. Each of these elements are essential to a successful claim under the law of tort, however the first step is to consider whether there is a duty of care between the injured person and the person whose actions have caused it. There are two branches of duty of care, those duties recognised by law and those inferred by the circumstances. In cases where no duty of care has been imposed by law the test of the foreseeable claimant is used; whereby “the duty is not owed to the world at large (as a duty in criminal law would be), but only to an individual within the scope of the risk created, that is to the foreseeable victim”.1 The cases that are essential to understanding this concept are Palsgraff v Long Island Railroad Co2, Hay or Bourhill v Young3; Caparo v Dickman4; Hill v Chief Constable of West Yorkshire5; and Osman v UK6. These cases have formulated the modern understanding of duty of care, the Palsgraff Case set forth the notion that an individual should not be responsible for unforeseeable circumstances of their actions and in such cases a duty will not be enforced, i.e. if the individual that was injured is not in a foreseeable set of people that may be affected by the plaintiff actions, then there is no duty of care. In the case of Bourhill this principle was re-affirmed, where a passer-by’s injuries was not reasonably foreseeable in a collision; whereas the occupants in the car that was collided with would be. The case of Caparo set forth the modern test for the duty of care which is a three pronged test that follows from the principles in Palsgraff and Bourhill. This test comprises of foreseeability, proximity and fairness, justice and reasonableness of recognising such a duty. Foreseeability is the notion as set forth by Bourhill; proximity is the relationship between the foreseeability; the two individuals; and the fairness of such a duty7; and the fairness, justice and reasonableness test is used to limit for public policy reasons liability, i.e. keeping the floodgates closed.8 This seems to be the situation that was created in the case of Hill; whereby if police were found negligent by not apprehending criminals earlier then the floodgates would be opened and police investigation highly hampered. The final case that has to be considered is Osman which took the law of negligence to the European Court of Human Rights (ECtHR) in respect to duty of care and the immunity of police officers from liability under Hill. The ECtHR found that the immunity was in violation of Article 6(1), the right to a fair hearing; therefore each situation needs to be given a fair hearing and proximity and foreseeability need to be properly considered; therefore in the case of Barrett v London Borough of Enfield9 it was concluded that such striking-out practices can no longer be taken, rather fairness and justice need to be decided on the elements of each case. Elements – Breach of Duty and Reasonable Care: Once the duty of care has been considered and approved there needs to be a breach of that duty, which has been traditionally defined as: Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or do something which a reasonable prudent man would not do.10 In the case of the reasonable person it was found that any action that has been taken, would take reasonable care to prevent injuries to persons that could be foreseeable claimants11, i.e. it does not matter if the action has never occurred before the possibility of such an action requires that the reasonable person take reasonable care.12 If a person has not taken reasonable care then they would be in breach of their duty to any foreseeable claimant in any case where there is more than a far-fetched possibility of injury13. The next part of this element that needs to be discussed is the concept of reasonable care in respect to the reasonable person’s opportunity to discharge their duty of care, i.e. as long as al precautions are taken to limit injury or harm then duty is discharged14, even in cases where an omission causes the harm reasonable steps have to be taken or a duty of care is owed – this includes ensuring that reasonable care is taken to prevent intervening actors do not cause harm15. However this duty of care differs for different levels of experience, i.e. the inexperienced must take objective reasonable care, but if the person who is injured knows that the individual is not properly experienced and accepts this then damages will be reduced because of contributory negligence16. If the person is physically or mentally incapable and this state is unknown to the individual then the standard of care is satisfied, i.e. automatism.17 In respect to children the standard of care is the reasonable child18 and a skilled professional the standard of care is from a skilled professional of their specific trade, e.g. a reasonable doctor19. Elements – Causation and Remoteness The final areas of negligence that have to be considered are causation and remoteness. Causation is determined by the but-for test whereby: But-for causation is established on the balance of probabilities: if it is more likely than not that an event was the cause, it is treated as if it were the cause.20 The first notion of causation is direct, i.e. the injury is ultimately caused by the actions set off by the defendant, i.e. there is no intervening act that ultimately caused the injury21 or the act would have occurred anyway even without the defendant’s negligence.22 The other forms of causation are alternative and cumulative causation, i.e. if there is alternate cause then there is no liability23 and cumulative causation is the continuous acts of negligence add up to personal injury24 and liability if reasonable care has not been taken to reduce the potential harm. Finally there is the concept of multiple causes; whereby the initial negligence causes harm; however an additional act from a different party causes further harm. In this case both individual’s are liable; the second because the defendant must take the victim as they are found and take appropriate care.25 The final element is remoteness of damage, which is dealt with by the Wagon Mound Test26 and re-affirmed in Cambridge Water27 that the damage has to be reasonably foreseeable, i.e. it does not have to be the direct cause but the result of a series of actions that were set in motion by the defendant’s negligent act. Application of Law of Negligence Scenarios: Scenario 1: Whacky Builders Ltd were undertaking work constructing a new factory. On one occasion a workman was operating a large crane on the site. Suddenly the crane swung over an adjoining main road and mistakenly tipped out rubble, some of which fell on Joe who happened to be walking by at the time. Luckily he was not badly injured, but he was taken to hospital. He was off work for a week as a result of his injuries, causing him lost wages of £1,000. He now wishes to claim compensation for his injury and lost wages. The formula of duty of care; breach of that duty of care; causation, i.e. a causal link between the individual’s injury or property damage; and actual damage either to a person or to property must be shown in order for Joe to claim compensation. There is an implied duty of care for Whacky Builders to safeguard those on the site and those who could be harmed from a negligent action in the surrounding area. The breach is the swinging out of the crane and tipping the rubble in the street. It is foreseeable that anyone walking down the street could be injured by the falling of the rubble. This is what happened to Joe and there was actual injuries therefore he will be able to claim compensation for the injuries and any economic loss, such as the wages, that are a direct result of the injuries. Scenario 2: On another occasion Whacky’s workmen were digging the road outside the new factory and mistakenly cut through the main power cable, causing a power cut to the surrounding area. Smallwood Primary School was located further down the road. When the power went off the school closed for the rest of the day. Some children came past where the road was being dug. Sonia, aged 9, fell into the hole and was badly injured. She has recovered, and now wishes to bring a claim for compensation. There is an implied duty of care for Whacky Builders to safeguard those passer-bys that may walk past the hole and when digging to ensure that property is not damaged. A breach would not be adequate safeguards round the hole. In the case of the electricity cable there was a breach by not locating it so it would not be damaged. A foreseeable injury from this breach is shock or harm when the electricity went out in the buildings around. However, it is not foreseeable that it would cause a school to go, children would come home walk past the hole and fall in. The only way Sonia could claim compensation is if the hole was not adequately safeguarded. Scenario 3: Big plc, whose premises were further along the road, lost their power supply for the rest of that day. All of their business was generated on computer, and therefore they closed for the rest of the day. They are arguing that they suffered lost business as a result and want to claim £10,000 as compensation for the profit that they would have made that day. In this case there would have to be actual damage to the computers from the power cut. It is conceivable that a power cut would cause the computers to crash and lose important information. If this was the case the business could be compensated for the damage and the lost business as a direct result; however as there is no actual damage there is no claim because under the tort of negligence pure economic loss cannot be compensated. Scenario 4: Baljit was walking past the building site when a piece of brick flew over the wall and struck her on the head. She was knocked unconscious and an ambulance was called. Because of a shortage of ambulance staff, the ambulance did not arrive for 30 minutes. Baljit was conscious again when she arrived at hospital. A doctor came to see her and said, “you have only got a scratch” and covered the injury with a plaster. He told her to have a check up with her doctor when she got home. However Baljit died from an internal haemorrhage a few hours later as a result of her injury. Her husband now wishes to claim compensation for her death and also for his loss of income, as he will now have to spend more time at home looking after the children. In this case it negligence that caused the brick to hit Baljit and it is the fault of the company that started the chain of events that lead to her death; however this section is briefly going to consider the remedies and defences to negligence. The defences include; that the plaintiff had knowledge of the risk28; that the defendant had impliedly accepted the risk29; that the plaintiff’s action contributed to the negligence30; that there was an exclusion of liability31; that the plaintiff was acting illegally, either alone32 or jointly with the defendant33; or there was an intervening act (novus actus interveniens)34. As they started the chain of events the company is at fault, but it will not be solely liable if it can be shown that there was medical negligence and the courts will share the costs appropriately. Negligence should always follow the same criteria, whatever the circumstances and in the case of specially trained professionals in acting within their specialty there is a higher standard of care, i.e. a Doctor practicing medicine is judged against a reasonable doctor. Yet in the area of medical law it has been very hard to prove negligence except in extreme cases. This seems to be due to the court’s reluctance to find doctor’s negligent for mistakes unless they are gross mistakes. The case of Penny and Others v East Kent HA35 is an example where screeners of cervical smears are only negligent when they do not spot the obvious signs of cancer. In N v Agrawal36 it was held that the inadequate reporting of a doctor about a rape examination was not negligent because there was no duty of care, i.e. no patient/doctor relationship. This raises the question when is there a doctor/patient relationship? Is this only when there is a long standing relationship? The case of Derry v Ministry of Defence37 is another example of giving immunity to negligent doctors; in this case the negligent misdiagnosis of cancer was covered by crown immunity. There are certain acts of negligence that cannot be covered when they are so gross and the line of causation has been directly linked to the original cause; also one more party can be held negligent. This is gross negligence because the head injury was known about, as well as the delay that allowed time for Baljit to come to. The doctor should have been put on alert of severe head trauma and concussion that could lead to death. Therefore the company; hospital and doctor will be liable in proportions determined by the court and Baljit’s husband can claim for compensation for the death and any costs that have occurred due to Baljit’s death. Scenario 5: On another occasion there was a spillage of oil over part of the building site. Mick, a workman, slipped on the oil and broke his leg. Whacky had put up a warning notice, which Mick did not see but they had not tried to mop up the spillage. He wishes to bring compensation for this injury and for his time off from work The formula of duty of care; breach of that duty of care; causation, i.e. a causal link between the individual’s injury or property damage; and actual damage either to a person or to property must be shown in order for Mick to claim compensation. There is an implied duty of care for Whacky Builders to safeguard those working on the site and those who could be harmed from a negligent action in the surrounding areas, such as from an oil spillage. The breach is the spillage of oil on the site and the failure adequately clean it up. Therefore it is foreseeable that anyone working on the site could be injured by slipping and falling on the oil. This is what happened to Joe and there was actual injuries therefore he will be able to claim compensation for the injuries and any economic loss, such as the wages, that are a direct result of the injuries. However, the company may be able to bring a defence that there was knowledge of the risk, because of the sign and Mick knew of it and continued to work therefore accepted the risk and any resulting harm. It is possible that this defence may work; however as the company never tried to clean up the oil then it may be that they are jointly liable. Therefore there may only be a partial award of compensation. Also if the signage was not adequate then the company would be wholly responsible. Bibliography: Bender, 1988, A feminist’s primer on feminist theory and tort, 38 J Leg Ed 3 Grubb, 2004, Principles of Medical Law 2nd Edition, Oxford University Press Hewitt, 2004, Between Necessity and Chance, NLJ 154(7124) Lunney & Oliphant, 2000, Tort Law: Text & Materials, Oxford Uni Press Mahendra, 1998, Unto the Breach, The Practioner, in the NLJ 148(6857) Prosser & Keeton, 1999, The law of Tort 5th Edition, West Law Read More