Tort Law - Case Study Example

File s Report to Senior Partner concerning client no 14823 of Cwmfelin Identification of legal issues The issues that require discussion in respect of Mr. Stephen are: 1 Employer liability for the acts/omissions. Whether a duty of care was owed, whether the duty had been breached, the damage caused, mitigation and causation. The liability on occupiers and the duty owed to lawful visitors. The employer’s liability and his breach of duty to provide adequate safety to employees Identification of the substantive law The law in respect of this question requires an analysis of employers’ liability and occupiers’ liability that is whether a lawful owner is protected. The duty of employer to provide adequate safety to its employees. Liability can either be by way of the common law rules or by way of breach of specific statutory provision. For common law, duty of care in specific the test for establishment of such duty is by Murphy v Brentwood, the breach of such duty, causation of damage, remoteness of damage and the defences would be taken into account. An analysis of negligence is also necessary whereby a person owes a duty of care to someone and if he breaches that duty and loss which is proximate is caused then he would be held negligent. Occupiers’ Liability Act 1957 and 1984 need to be taken into account. These talk about lawful visitors and trespassers and the duty of care that is owed to them. The breach of such duty and whether the chain of causation was broken. The notion of non-delegable duty of employer to afford protection to employees also needs to be discussed. The case of Wilsons and Glyde Coal Ltd. v. English 1needs to be considered. In which Lord Wright lad a threefold requisite which required reasonable care to provide competent staff, adequate material and a proper system which included effective supervision. The policy considerations would also be taken into account as could be seen from the case of Mulachy v. Ministry of Defence. This required imposition of a duty where it was fair, just and reasonable to impose such a duty. These would taken into account the reasonable circumstances. There is a defence of volenti non fit injuria whereby the employer could have agreed with the employee of long working hours and/or heavy responsibilities. The liability of employer and his duty in respect of pure economic loss and the decision of Reid v. Rush & Tompkins Group plc. The House of Lords decision in Spring v Guardian Assurance also needs to be taken into account when determining such duty and liability. The non-delegable duty and its existence only occurring when there is an employer and employee relationship existent also needs to be taken into account. Individual circumstances of each employee should be looked into and the authorities on this which include Paris v Stepney Borough Council also need to be considered. Furthermore the fact that even though there are requirements of a higher standard of care to be exercised the limits on such duty of care being there should also be considered. Thus if such duty is proved then breach and causation would be determined and the remoteness of damages would also be considered. The defence pointed above would also be relevant when determination of duty as well as damages are made. Furthermore the liability in respect of occupiers also needs to be discussed. Since it was a lawful visitor therefore the OLA 1957 applies whereby there was a duty was owed since he was allowed to enter that area. Therefore adequate precautions should have been taken as duty of care as an occupier arose. A breach having been committed and as a result damage was suffered. Any gaps in evidence which need to be followed up? The level at which Mr. Stephen plays football as in whether he earns anything from football or any benefits that he retrieves. Furthermore, the fact that there has been loss of amenity could be claimed but there is a possibility of this being classified as pure economic loss and the loss not being recoverable. The exact nature of Mr. Stephen’s job. What time was it. The situation of lights in the area. The contract with Mr. Stephen of the employer. Whether there was fault attributable on the part of Mr. Stephen. The exact cause of the injury and could it have been prevented and the causal elements. The expense of Mr. Stephen. Any other loss that Mr. Stephen suffered as a result of the injury Parties who need to be contacted and why GP Dr Jane Smith and the other doctors – the A & E doctor and the Consultant. The GP needs to be seen so as to ascertain the exact nature of the injury, the approximate time that it would take to recover and the long term effects of the injury on Mr. Stephen Jones. The employers must be consulted so as to ascertain the exact amount of lost wages. Possibly to ascertain the act of redundancy and plans in that respect. Mr. Vicks. To ascertain the instructions that he gave to Mr. Stephen. The young girl. She would be able to give her version of the incident and how Mr. Stephen got injured. The Union. To ascertain the position on redundancy. Initial examination of quantum – just basic thoughts for now. The exact nature of job and the level of expertise expected from him would be taken into account. The lighting in the area goes in favour of Mr. Stephen. The evidence of the girl would turn out to be helpful. The certificate of doctors and the nature of injury would help Mr. Stephen’s cause. The position on estoppel from redundancy would be helpful if proved that the injury was caused by the employer and he being held liable in that respect. The damages would require an evaluation of quantum and foreseeability and proximity of loss. Thus pure economic loss would be excluded. Evaluation of case The possible quantum in respect of the current situation is that Mr. Stephen can validly claim for the losses that he suffered as a result of the inadequate protection at work that was provided which has resulted in injury. Thus a claim under OLA 1957 and employers’ liability can be made. But damages after an evaluation of quantum can be claimed. Furthermore, if there is a possible situation of redundancy whereby Mr.Stephen is removed he can claim for his rights under Law of Employment of unfair dismissal and redundancy payments. He can also claim for injunction on his removal as the injuries have been caused by his work. Finally his expenses and loss of work can be claimed for. The girl’s evidence in this respect would be of necessity. Response of Senior partner Why haven’t you written to the employer as instructed? Some huge, fundamental issues have been missed here. Some substantial work needs to be undertaken before I can issue new instructions. Signed Senior partner 7th Feb 2011 Read More