A Person Who Is Liable for Negligence - Case Study Example

SMALLBRAIN V AARDVARK A. Disaster Archie Aardvark should be held liable for negligence. He failed to exercise duty of care, which resulted in the total damage of Disaster. Notwithstanding that at the time of the incident, it was not yet established that oil would burn in water, Archie should have been careful because oil is known for its high combustibility, which is why it is used as fuel. Although it was not foreseeable then that a smouldering cotton rag could ignite the oil in water, it was nevertheless basically foreseeable that oil could easily be ignited and could cause burning and conflagration. There was a risk that oil would burn and Archie should not have disregarded that possibility. Likewise, the variance in what was foreseeable and what actually happened does not matter because the end effect is the same. Two cases support this position. In the Overseas Tankship (UK) v The Miller Steamship Co [1967] 1 AC 617, a case also known as The Wagon Mound 2 (The Wagon Mound was another name of the defendant ship), Lord Reid said: “But it does not follow that, no matter what the circumstances may be, it is justifiable to neglect a risk of such small magnitude. A reasonable man would only neglect such risk if he had some valid reasons for doing so, e.g. that it would involve considerable expense to neglect the risk.” This case involves a ship, which was taking oil from a Caltex gas depot in a Sydney wharf. Due to negligence, oil overflowed and drifted into a nearby wharf, called Sheerlegs Wharf, where a couple of ships were being repaired. The oil ignited and the ships and the wharf were extensively damaged and an action was brought by the ships’ owner against The Wagon Mound. The action proved successful, albeit an earlier case, known as The Wagon Mound 1 Case, involving the same incident brought by the owner of the wharf against The Wagon Mound, failed. In that earlier case, the Court ruled against the plaintiff on the ground that the igniting, deemed caused by the welding activities of the wharf’s employees, of oil on water was unforeseeable. In The Wagon Mound 2, the Court rendered an opposite ruling and accepted the foreseeability of oil igniting in water. The difference in the decision was underpinned by two different sets of findings of fact making the first irrelevant to the second. In The Wagon Mound 1, the wharf’s owner was the plaintiff and the subject of the damage was the wharf whilst in the second, the ships’ owner was the plaintiff and the damaged subjects were the ships. Sebastian’s case leans more towards the second case than to the first because it was Sebastian’s ship that sustained the damage without him having contributed to the negligent act. In Hughes v Lord Advocate [1963] AC 837, a child sustained injuries while playing in an open manhole left by Post Office employees, for which the Lord Advocate, representing the Scottish Post Office was found liable for negligence. A manhole was opened up by the employees to do maintenance work on underground telephone equipment but had to leave it for the night. They covered it with a tent and put paraffin lamps all around it as a means of warning people of its presence. Some children found it however, and decided to explore it, climbing in and out of it. One of the children knocked down a lamp into the hole and an explosion occurred severely burning him. The Lord Advocate, representing the Post Office, was sued for negligence but the Scotland court ruled in favor of the defendant. On appeal, the Court of Appeal reversed the decision, which was sustained by the House of Lords. At issue in this case raised by the defendants was foreseeability: of children playing in that same street on a weekend, and; of the paraffin lamp exploding. The HL held that although it was not foreseeable for the paraffin lamp to have exploded, it was foreseeable that the lamp could cause burning and conflagration, and the explosion was but a variant of what was foreseeable. The defendant, therefore, was liable for negligence. B. Marine Satellite Navigation System Sebastian has the right to return the faulty satellite navigation system and be refunded in full of the contract price, as this is one of the remedies allowed by law to consumers. The exemption clause incorporated by Archie in the printed contract relative to an administration charge of 50% of the price of the goods in cases of refund of faulty goods cases is not valid. The Sale of Goods Act 1979 (SoGA hereafter), provides in ss. 14 and 15 thereof the conditions under which the law allows implied terms of quality or fitness of goods. Goods sold in the course of a business carry this implied term with satisfactory quality referring to fitness of the goods to the purposes for which they are supplied, appearance and finish, freedom from minor defects, safety and durability. The implied terms set forth under the aforesaid provisions are deemed conditions, and not merely warranty, if applied in England, Wales and Northern Ireland. One of the remedies of the buyer being sold goods that breached the implied term is the right to reject (Section 15(A)(1)(a), SoGA) in return for a full refund, or to assert for damages (Twigg-Flesner 2009 p. 168; The Law Commission & Scottish Law Commission 2009 p. 14). The phrase “sale in the course of a business” was clarified in R&B Customs Brokers v United Dominion Trust [1988] 1 All ER 847 as one referring to a sale that is basic to the business of the seller or even if incidental, but only if it regularly occurs. The SoGA provisions cited are therefore applicable to this case since the sale of the satellite system was also done in the course of business considering that Archie is a dealer of sea vessels and apparently of accessories to such vessels. Under the Unfair Contract Terms Act of 1977, a seller cannot exclude or restrict, as part of the contract term, his liability for breach of obligations under sections 13, 14 and 15 of the SoGA 1979 (s. 6[2]) when selling to a buyer dealing as a consumer. Since Sebastian bought the item for his own personal and private use, he was then dealing as a consumer [s. 5(2)(a)]. The implication is that Archie cannot totally exempt or even reduce his obligations as a seller to Sebastian with respect to the refund of the satellite navigation system. C. Sebastian’s Injuries Sebastian is entitled to claim for damages for the injuries his hand sustained due to the faulty navigation system, which did not meet the implied term of fitness and suitability. The sign posted inside Archie’s office is not applicable because under the Unfair Contract Terms Act 1977, a seller cannot exempt or restrict his liability for any loss or damage that occurred as a result of a defective good he sold while such good was being used by the consumer [s 5(1)(a)]. In the case of Egan v McSweeney [1956] 90 IR LTR 40, the plaintiff suffered injuries when the coal he bought from the defendant exploded after it was ignited causing the loss of one of her eyes. The Court ordered the compensation of damages for personal injuries to the woman because the goods were found to have been unfit under its implied use, which was to burn in domestic fire. In another case, Godley v Perry [1960] 1 All ER 36 QB, a boy bought a toy catapult from a newsagent. The catapult broke when he used it also causing him to lose an eye. The Court held that the catapult breached the implied term of fitness for purpose and awarded the boy £2500 in damages. References Egan v McSweeney [1956] 90 IR LTR 40. Godley v Perry [1960] 1 All ER 36 QB. Hughes v Lord Advocate [1963] AC 837. Overseas Tankship (UK) v The Miller Steamship Co [1967] 1 AC 617. R&B Customs Brokers v United Dominion Trust [1988] 1 All ER 847. Sale of Goods Act 1979. Twigg-Flesner, C. (2009). Fit for Purpose? The Proposals on Sales. Modernising and Harmonising Consumer Contract Law by Howells, G. & Schulze, R. (eds). Sellier-European Law Publication. The Law Commission & Scottish Law Commission (2009). Consumer Remedies for Faulty Goods. Unfair Contract Terms Act of 1977. Read More