Omissions of the Third Party Liability - Case Study Example

Whether or not each or any of the parties are liable for the damages and injuries sustained by Charlie and Ben will depend upon whether or not a dutyof care existed. Determining whether or not a duty of care exist will depend upon the proximity of the relationship between the party injured and the party to whom liability attaches.1 Once a duty of care is found to exist it is necessary to determine whether or not there are circumstances or facts that justify a negation or reduction of liability.2 In this regard two elements stand out immediately and they are issues of consent and the impact of criminal conduct on the part of the victims. The issue of occupier’s liability also arises in respect of the jammed door and will be considered together with the duty of care and justification with reference to any potential liability on the part of any of the parties. Applying the duty of care principle as explained by the House of Lords in Donoghue v Stevenson [1932] it is reasonable to assume that there was such proximity between Fizzade bottling factory and the tour group consisting of 35 students and their teacher so that the former owed a general duty of care to the latter. The duty of care was explained by Lord Atkin in the following terms: “Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called to question”.3 Significant indicators of proximity are found in ascertaining the responsibilities of the relevant parties together with reliance issues.4 It therefore follows that once Fizzade agreed to allow the students onto their property for the tour they assumed responsibility for their safety while on the premises. Moreover, by virtue of the Occupiers Liability Act Fizzade has a statutory duty of care to all lawful visitors on its property. The duty of care owed by owners and occupiers of premises is a statutory duty imposed by the Occupiers Liability Acts 1957 and 1984. By virtue of the Occupiers Liability Act 1957, the duty of care imposed on occupiers is a duty in respect of all visitors to the premises in question. The duty of care is a common duty.5 The question then turns on whether or not there was a breach of that duty. In a typical case foreseeability of the type of harm caused and failure to take reasonable steps to prevent such harm will give rise to a breach of a duty of care.6 Whether or not the type of damages were foreseeable and could have been prevented by taking reasonable steps to prevent the injury suffered is a question of fact in each case.7 While it can be argued that Fizzade’s employees were negligent in leaving a forklift out in the open with keys in ignition when there were at least 35 students on the premises. However, the fact that Ben and Amos made off with the forklift without permission and wandered off from the group that was largely unattended by their leader can be said to be such that it was not foreseeable. Moreover, in the case of Topp v London Country Bus (South West) Ltd [1993] 3 All ER 448 that in a situation where a driver left his mini bus unattended with the keys in the ignition outside of a public house was not negligent since it was difficult to assign allurement in general terms.8 Moreover, taking a forklift, which is a moving conveyance without permission amounts to a crime. This will provide Fizzade with a defence of ex turpi causa non oritur actio which essentially bars a claimant pursuing damages arising out of criminal conduct, for instance the theft of a moving conveyance by Amos and Ben.9 In Aston v Turner [1981] QB 137 a burglar was involved in a car crash while driving a getaway car from the scene of a burglary. The Court of Appeal said that a duty of care to such a claimant may be ignored for matters arising out of public policy.10 It therefore follows that for public policty reasons Amos and Ben will not be in a position to substantiate a claim in damages against Fizzade since their own damages were sustained as a result of their own criminal conduct. The psychiatry injury suffered by Ben however, came about as a result of unreasonable conduct on the part of Mrs Entwistle, who having discovered Amos’s whereabouts decided to leave him for a while longer so as to teach him a lesson. However the case of Palmer v Tees AHA [1999] Lloyd’s Rep Med 351 may function to exonerate Mrs. Entwistle since it was held in this case that the defendant must be in a position to foresee the likelihood of the psychiatric injury emanating from his or her conduct.11 In the circumstances, there is nothing on the fact of the case for discussion that Mrs. Entwistle should have known that prolonging Ben’s stay in the storeroom would have given rise to his psychiatric injuries. Be that as it may however, Mrs. Entwistle as a representative of Sixth Form College, presumably a public authority has a duty not to perform her duties negligently.12 Based on the facts of the case for discussion Mrs. Entwistle’s conduct was negligent from the onset. She stepped outside for a cigarette and left two boys, Amos and Ben who were obviously irresponsible in charge. The Sixth Form College must therefore assume responsibility for Mrs. Entwistle’s negligence. As Turner J observed, it would be “offensive to, and inconsistent with, concepts of common humanity” to hold that there was no duty of care in circumstances where a public authority was permitted to conduct their duties negligently.13 Even if it can be determined that Mrs. Entwistle had not been negligent in leaving the boys in charge while she went out to smoke a cigarette, the Sixth Form College will be held liable for negligence in that they failed to provide proper supervision of the students while on the fieldtrip.14 While the jammed door to the storeroom might constitute an intervening act15 and thereby exonerating the College of liability for Ben’s psychiatric injuries it will not excuse the College for the damages sustained by Charlie. According to the ruling in Haynes v Harwood [1935] 1 KB 146 Fizzade will share liability with the College since it was held that this it would be foreseeable that if a horse had been set loose in a crowd someone might get injured in seeking to run the horse down.16 The same principle would be applied to a forklift left unattended with the keys in the ignition while students were touring the grounds. Greer LJ ruled as follows: “It is not necessary to show that this particular accident and this particular damage were probable; it is sufficient if the accident is of a class that might well be anticipated as one of the reasonable and probable results of a wrongful act.”17 Based on the ruling in the Haynes case Fazzade is liable to contributory negligence with respect to Charlie’s injuries and will share responsibility with the College. Section 1(1) of the Law Reform (Contributory Negligence) Act 1954 will operate to reduce Charlie’s damages since he was assumed to have been in charge of the forklift himself.18 Based on the authorities considered the College will share responsibility for the damages sustained by Charlie with Charlie and Fizzade. The College might also be responsible for the damages sustained by Ben following his entrapment in the storeroom. Bibliography Aston v Turner [1981] QB 137 Carmarthenshire County Council v Lewis [1955] AC 549 Donoghue v Stevenson [1932] AC 562 Dorset Yacht Co. Ltd. v Home Office (1970) AC 1004 Haynes v Harwood [1935] 1 KB 146 Kent v Griffiths [2000] 2 All ER 474 Law Reform (Contributory Negligence) Act 1954 Murphy v Brentwood District Council [1991] 1 AC 398 Occupiers Liability Act 1957 Overseas Tankship (UK) Ltd. v Morts Dock & Engineering Co. Ltd. (The Wagon Mound 1) [1961] A.C. 388 Palmer v Tees AHA [1999] Lloyd’s Rep Med 351 Pitts v Hunt [1990] 3 All ER 344 Smith v Littlewoods Orgainisation Ltd [1987] AC Topp v London Country Bus (South West) Ltd [1993] 3 All ER 448 Read More