Capiro Industries vs. Dickman - Case Study Example

Case In order, to get a clear understanding of what the claimant would need to prove when he makes a claim under the tort of negligence, it is important to explain the meaning of the law. A tort law can be described as a civil wrong not arising from a contract and in the case of negligence, one should owe due consideration to one’s neighbour (Capiro Industries vs. Dickman 1990). Negligence therefore, can be described as the act of doing something a reasonable man would not do and a plaintiff must prove in such a case that the defendant owes a duty of care (Donoghue V. Stevenson 1932). It is of paramount importance for the claimant to be able to prove that the negligent behaviour of the defendant would have caused an injury or loss in order to win the claim that the subsequent injury after the action of the defendant could have been avoided in the event that he would have acted within reasonable limits. The House of Lords in the case of Capiro Industries vs. Dickman (1990), proposed the adoption of the following conditions where the three stages should be taken into consideration which include; foreseeability, proximity as well as reasonability. In some cases it may not always follow that a duty of care exists but common sense ought to prevail to avoid an otherwise serious injury to another person or loss of business. In some cases, tort of negligence is unintentional where the defendant would have no intention of causing harm to the plaintiff. Likewise the society is becoming complex and careful consideration ought to be taken in making claims under the tort of negligence as going to be critically analysed in the given case studies. According to Terry & Giugni (2009), there were traditionally four elements of the tort of negligence which the plaintiff has to prove in order to be successful in winning the claim. There is need to prove that the defendant owed the plaintiff a duty of care, the defendant breached that duty by falling below expected standards, the defendant’s conduct caused the plaintiff to suffer physical or economic harm (causation) and the harm suffered by the plaintiff was reasonably foreseeable (remoteness). The four stage test has been reformed by statutory civil liability reforms particularly in Australia where all States and Territories add the fifth element which posits that recovery for loss in that situation must not be excluded by the statute. In the case involving Alice, Bill and Fred, the law of tort of negligence can be applied in varying degrees though all the three parties experienced some form of harm emanating from the use of products acquired from Hortico Ltd. Alice being the buyer of the gift for her husband Bill comprising of a bag of lawn food, some weed killer and a special wheeled machine all of which are Hortico products, it is advisable that she can sue Hortico Ltd for tort of negligence under the manufacturer’s liability. Whilst Alice’s harm to health is not directly a result of using the products she bought from the local garden centre, it is a result of the shock caused by the accident involving her husband Bill who is seriously injured while using Hortico’s products as well as the subsequent injury of an elderly neighbor, Fred who trips over the handle of the machine and falls breaking his hip in an attempt to help Bill. This affects Alice psychologically and can sue the manufacturer of the product as investigations later revealed that at Hortico’s factory, the machine had been assembled incorrectly. Indeed, Hortico Ltd is liable to the users of all its products. Any defect of the products sold which can cause physical harm to the users can mean to say that the company is liable for tort of negligence. It is imperative for every manufacturer to ensure that its products are safe to be used by the consumers before they are released onto the market. The fact that Alice is not directly injured by the products which she bought is not an issue since the manufacturer was supposed to make every sure that the products were safe and suitable for use by any person. Selling a product with defects to the customers is tantamount to negligence since it is the duty of the manufacturer to ensure that all products meet the expected standards. More so, the fact that investigations show that the machine had been assembled incorrectly is testimony enough to show that Hortico Ltd is liable for tort of negligence. It is apparently clear that this organisation neglected its duty to care for its customers. Whilst Fred may want to sue Bill under Occupier’s liability to get compensation for his injuries, the success of his claim depends on different factors. First and fore most, it must be noted that Bill does not intentionally plan to trap Fred so that he would trip and fall the moment he enters into his yard. This is purely and accident which could not be predicted since Bill himself has been unexpectedly injured by the machine he has been intending to use. In such unfortunate incidences like this one, it may be difficult for the plaintiff to prove the case of tort of negligence in the event of an accident. In most cases, accidents are not planned or anticipated hence it would be naïve to sue someone who has been involved in an accident where you are also injured while trying to rescue that person. Indeed, this can be treated as purely an accident where the chances of succeeding in suing for compensation of his injuries would be very little hence it would not be very wise for Fred to go ahead and sue Bill. It can be noted that there is no breach of duty care by Bill which states that one’s actions should not negatively impact on the next person who is regarded as a neighbor since this is an accident. If the court of law feels that it is not reasonable or just to infer duty of care in the circumstances surrounding the issue, it may be difficult to establish a duty of care. For instance in the case of Hill v Chief Constable of West Yorkshire (1989), the court could not establish that the police owe a duty of care. In some cases the resultant injury to the next person would be a result of genuine mistake or accident where negligent behavior may be difficult to determine but all the same, for the sake of public as well as individual safety, the duty of care is owed to everyone hence the need to be always on the lookout against such actions which can cause harm or injury to the next person. This also depends of the differentiation of the degree of liability of the owner or occupier to different people. In some cases, entering other people’s properties can be classified as trespassing which would further limit the chances of Fred to ever win his case. In the case of trespass to the person, the duty is to refrain from infringing a person’s bodily integrity. Each human being has a right to own property hence the need to safeguard it against any form of trespassing as it would often expose it to some form of risk. In this particular situation, it can be argued from a different angle that Fred is trespassing on Bill’s private property hence there is no tort of negligence. On the other hand, Bill can sue the manufacturer as well as the garden center for negligence. Hortico Ltd is liable to the users of all its products as well as the garden center which sales the company’s products to the customers. Any damaged product sold to the customer which can cause physical harm to the users can mean to say that the company is liable for tort of negligence. It is imperative for every manufacturer to ensure that its products are safe to be used by the consumers before they are released onto the market. In this case, Bill is seriously injured while using the product manufactured by Hortico Ltd and sold by the local garden center. Both organisations are liable for negligent behaviour since they are supposed to ensure that their products are up to standard before they rush to sell them to the people which may be harmful or cause physical injury. Case 2 The collision of the Finance Manager and the visiting accountant’s cars could not have happened at all had Jane and Ken took heed of Mike’s instructions which were recently issued through a written instruction advising that this practice of moving visitors’ cars in a bid to create space in the car park must cease immediately. Having explained that Fowl-up had no insurance cover for cars being moved through the internal email system to all members of staff who had access to the internal email system, there is evidence which suggests that both defendants breached their duty of care by going against the rules and regulations of the organisation hence are liable to tort of negligence for causing damages to the Finance Manager and the accountant’s cars. It may also be seen that to a larger extent, the actions of the defendants caused the plaintiffs to suffer damages to their cars. Against this background, it is advisable for the Finance Manager to sue both Ken and Jane given that they are fully aware of the new rules of the company pertaining to the movement of the cars in the car park. By virtue of breaching the written regulations, it is apparently clear that these two people have defied the rules of the company. It can also be noted that they are acting out of the rules of the company hence are liable for negligent behaviour. By any standard, their action can be classified as tort of negligence since they have caused damage to other people’s cars which could have been avoided had they followed the rules. Since the Finance Manager knows that every employee at Fowl-up is aware of the existence of a rule that prohibits the workers to move other people’s vehicles, there are likely chances that he will win his case since it can be proved that these people have breached the company policy with full knowledge. In order to successfully win his claim for compensation, there is need for the Finance Manager to prove beyond reasonable doubt to the court that the day of duty care has been breached. Indeed, it is not the duty of Jane and Ken to be seen moving other people’s vehicles as clearly stipulated in the new regulations. Their actions fall below the expected standards of the organisation hence it can be noted that they are liable for negligent behaviour. Going against a rule given in an organisation is an offence in itself under normal circumstances and causing damage to property while on the wrong side of the law aggravates the situation and is tantamount to tort of negligence. From this argument, it is advisable for the Finance Manager to file a lawsuit on the basis that such practice has been prohibited in the organisation. However, there is need to be careful in the event that the new regulation is silent about the practice of car owners leaving their keys given that he also is part of Fowl-up and expected to fully know the provisions of the regulations stated in the written circular. The visiting accountant can sue the company, Fowl-up since he can claim that being a visitor, he is not aware of the operations of the organisation with regards to parking of the cars at the company’s premises since it has been their tradition to request car owners to leave their keys. The Finance Manager is an interested part who does not want to spoil relations with his employers because he is also aware of the regulations hence could not advise the visiting accountant not to sue the company. Being a visitor, the accountant has nothing to how Fowl-up operates its car park and only expects to see his car as safe as he would have brought it. Any damage to it while at the premises of the above mentioned organisation will warranty claims for damages. Fowl-up is liable for vicarious liability which is imposed on another person on the basis of the legal relationship existing between them such as employer and employee (Terry & Giugni 2009). Being an employer, Fowl-up is liable for the torts committed by the employees within their employment. In this case, this unfortunate accident is within the realm of usual operations at the organisation during the days when they hold their sales conferences. In this case, the visiting accountant may not know that it is prohibited for the receptionist and the caretaker to move cars within the company premises hence for the case to be authentic, he must sue the company not individuals. A good example can be drawn from the case of Hollis V Vabu Pty Ltd (2001) 207 CLR 21. The High Court considered the case of Mr. Hollis who had been hit by a bicycle courier who worked for Vabu in Sydney. Apparently, Mr. Hollis managed to identify the uniform of Vabu though he could not identify the individual who had hit him and sued Vabu, the company that employed the courier. The court decided that the employers are vicariously liable for the torts committed by their employees during the course of their employment. Against this background, it can be noted that the activities of Jane and Ken constitute the scope of their employment when the tort is committed. While Jane wants to sue her employer for injuries inflicted on her by the negligent driving of her colleague, Ken as well as the employer’s negligence for not having the first aid kit readily available and thereby aggravating her injuries, a good advise to her is to rethink her decision as the chances of not succeeding in her claim would be very high. In the first place, it is her negligent behavior at work to ignore a company regulation which is the starting point. Before going any further, Jane is liable for breach of duty care which can make it equally impossible to win any case against her employers hence the move to sue the employer would be a futile exercise. In can be noted that both Jane and Ken are liable to contributory negligence where the plaintiff would also have contributed to the damage (Terry & Giugni 2009). Contributory negligence occurs when there is failure by the plaintiff to meet the standard care for his or her protection and that failure is a legally contributing cause to that injury. However, this rule has been changed in Australia by the legislation that provides for the plaintiff’s contributory negligence to reduce and not to extinguish the right to damages. As is the case, Jane is suing the wrong person since she is aware of the rules and regulations with regards to moving other people’s cars. Maybe, suing Ken as an individual can be more sensible as this would have some form of weight. A close analysis of this case study shows that both Jane and Ken breached their duty of care by embarking on activities that are forbidden by the company. Going against the rules and regulations of the company would come to the conclusion that the offender is liable for tort of negligence in the event that there have been some damages to other people’s properties that would have resulted from such activities of defiance of the company rules. Whilst the Finance Manager and the visiting accountant can win their claims, the case may be difficult for Jane who in this case is seen as part of the problem. Whilst the chances of winning against the employer are almost impossible, she instead can sue Ken as a way of just trying some lucky since she is part of the problem in the case study. Case 3 A close reading of the case shows that Slackers Limited has done everything possible to deter people from entering its premises since it is private property. Slackers have erected notices warning people that it is private land and that there are dangerous places on it. By the lake they have put up a huge notice warning people not to swim and to keep out because there are dangerous currents. Slackers have also put up a fence around the water wheel. They have also employed a local man to patrol the area during the day. This man shouts at children playing in the derelict but this has little effect. It should also be noted entering private properties can be classified as trespassing which is prohibited by the law where trespassers can be prosecuted. In the case of trespassing on private property the offender is liable for a crime and is brought to book so as to safeguard the interests of property owners. Each human being has a right to own property hence the need to safeguard it against any form of trespassing as it would often expose it to some form of risk. Gary is injured when he falls from the fence surrounding the water wheel while trying to climb over the fence to retrieve a football that had been kicked from the sports playing fields into the land of Slackers. It is advisable to Garry to seek medical treatment quietly and put the matter to rest without wasting any time and resources in attempting to sue Slackers Ltd. The writing is clear that trespassing is prohibited hence the owner of the property cannot be liable to any wrong doing if an individual person voluntary goes into danger which is no man’s business. Instead of seeking to sue Slackers Ltd, this man can be prosecuted from trespassing in a protected area regardless of the injury suffered during the process. Regardless of the fact that Colin may have been injured by the accident that was caused by a pole lying across a track which is normally clear as a result of surveyor working for Slackers who had forgotten to take the pole with him, he has no legal right to sue Slackers limited since he has breached a law which prohibits any trespasser to enter the protected area. The company has no case to answer. Colin is liable for his own injury by virtue of voluntarily going to danger. The same goes to Aaron though injured rescuing a kid. The law still stands that trespassing is prohibited. Regardless of the magnitude of danger or injury caused to the injured persons, Slackers limited is protected by the low since it has every right to own private property. Whilst it may sound rude to say it, they did not invite any of the injured parties to their property. They have posted warning of the danger and that all the injured parties were trespassers on their property. Indeed, this is a fact which cannot be contested in the court of law since every person has a right to own property and the law is very clear that any trespassers may be prosecuted instead of the opposite where the company is sued for cases which it is not liable about. Over and above, the duty of care with reference to tort law is imposed by the law and is applicable to everyone. The plaintiffs may claim damages or compensation in the event of loss of property or injury to another person where it can be proved that the day of duty care has been neglected, the defendant has breached the duty by falling below expected standards, the defendant has caused harm to the plaintiff (causation) and that harm would have been reasonably foreseeable (remoteness). References Capiro Industries V. Dickman (1990). Available at: http://oxcheps.new.ox.ac.uk/casebook/Resources/CAPARO_1.pdf Accessed on 5 April 2010 Donoghue v. Stevenson [1932] All ER Rep 1; [1932] AC 562; House of Lords. Available at: http://www.safetyphoto.co.uk/subsite/case%20abcd/donoghue_v_Stevenson.htm Accessed on 5 April 2010 Negligence: duty of care and breach of duty (n.d). Available at: http://www.londonexternal.ac.uk/current_students/programme_resources/laws/subject_guides/tort/tort_ch3.pdf Accessed on 5 April 2010 Paris v Stepney Borough Council [1951] AC 367 (13 December 1950). Available at http://www.a-level-law.com/caselibrary/PARIS%20v%20STEPNEY%20BOROUGH%20COUNCIL%20%5B1951%5D%20AC%20367%20-%20HL.doc Accessed on 5 April 2010 Negligence: duty of care and breach of duty (n.d) Available at: http://www.londonexternal.ac.uk/current_students/programme_resources/laws/subject_guides/tort/tort_ch3.pdf Accessed on 5 April 2010 Richards, Ludlow & Gibson (2009). Tort Law in Principle. 2nd Edition. LBC Terry A. & Giugni D. (2009). Business and the law. 5th Edition. Cengage Learning Australia. Read More