Law and Health and Safety - Assignment Example

College: Law and Safety and Health Question The law of negligence s that the defendant would be liable for actions or omissions that cause harm to the plaintiff although the harm was not intended by the defendant. Negligence law provides for elements which if the plaintiff proves in a civil suit the defendant would be liable and the plaintiff would be entitled to compensation. Therefore in this case if Miss Fortune and the member of the public can prove the elements of negligence then CC Ltd would be liable to pay them compensation. CC Ltd would also be liable to pay compensation for the damage to the reception counter. The elements of negligence provided by the law of negligence which would determine the liability of CC Ltd are: The duty of care : In order for defendant to be liable, the plaintiff must prove that the defendant owed him the duty of care. For the plaintiff to prove this duty, he must prove that harm was reasonably foreseeable and that there was proximity of relationship between the plaintiff and the defendant. In the case of Donogue v. Stevenson [1932] AC 532 where the plaintiff drank ginger beer given to her by a friend who bought it from a shop. While drinking the beer the plaintiff discovered the remains of a decomposed snail. She then sued the defendant for negligence which she succeeded. It was held that the manufacturer had a duty of care to his consumer to provide products that are fit for consumption. In our case CC Ltd owed the duty of care to Miss Fortune and the member of the public. Breach of the duty of care: The law of negligence provides that once the duty of care has been established, and then it has to be proved that that duty was breached. Where the defendant knowingly exposes the plaintiff to a substantial risk of loss breaches that duty and where the defendant fails to realize the substantial risk of loss to the plaintiff of which any reasonable person in the same situation would have realized breaches that duty. In this case CC ltd employee should have realized that the hastily erected scaffolding would have posed danger to others. An employee leaving the scaffolding without any warning was also negligent. CC Ltd should realize that the law of negligence imposes a duty to all members of society to exercise reasonable care toward others and their property. The law states further that a person, like CC Ltd employee who engages in activities that pose an unreasonable risk toward others and their property that actually results in harm, breaches their duty of reasonable care hence they have breached this duty to the member of the public and Miss Fortune. This was stated in the case of Bolton v. Stone [1951] A.C. 850 where the House of Lords decided that the defendant is not negligent if the damage to the plaintiff was not a reasonably foreseeable consequence of his conduct. There should be a direct cause (factual causation): The law of negligence also provides that the particular acts or omissions of the defendant were the cause of the loss or damage sustained in order to make him liable. In this case scenario once it is established that the employee of CC Ltd’s omission or action caused the injury, damage and death then CC Ltd would be liable.. For example in Palsgraf v. Long Island Rail Road Co. (1968) 162 N.E. 99 it was decided that the defendant was not liable for an injury suffered by the plaintiff who was a distant bystander caused by the scales that fell on her as she waited the train on a train platform. Harm: Law of negligence also provides that in a negligence case the plaintiff must prove a loss or injury to recover. The harm may be a physical injury, it may be damage to the plaintiff’s property, death or in some instances it may be the suffering of emotional distress. Therefore once the harm would be proved then CC Ltd would be liable. From the above foregoing it can be seen that CC Ltd is liable to compensate the death of Miss Fortune, the injury to the member of the public and damage to the counter since all the elements of the law of negligence can be proved to establish liability. Question 2. The Occupiers’ Liability Acts of 1957 and 1984 provides for the duty of care to trespassers and visitors provided that the occupier has actual or constructive knowledge that danger may exist to a trespasser who may be near it. These Acts provides that the occupier is, or should be, aware of the danger on his property and that he should have reasonable grounds to believe that people may enter the premises without his permission. In British Railways Board v. Herrington 1972 AC 877, it was decided by the House of Lords that occupiers owed a duty to trespassers. This 1984 Act only covers liability for death and personal injury and not damage to property unlike the 1957 Act. It is thus evident that CC Ltd and AB Ltd would be liable to provide compensation for Miss Fortune’s death and injury to the member of the public. In White v. The Council of the City of St. Albans, where the plaintiff had taken a shortcut across the defendant land and fell into a trench. The Court of Appeal rejected the argument by the plaintiff that the fact that the defendant took precaution to stop people getting into the dangerous area meant that he believed somebody was likely to do so, and was therefore liable. The court said that just because a defendant had tried to prevent people entering dangerous land did not mean that the "reasonable grounds to believe" have been satisfied. Section 1(5) of the 1984 Act provide for warnings. However, providing a warning sign simply is not enough. Therefore the sign must be clear enough to ensure that the risk is obvious to the trespasser. It is thus evident that CC Ltd and AB Ltd has breached this duty of care to Miss Fortune and the member of the public since they did not provide warning signs to warn of the danger. Question 3 CC Ltd and AB Ltd would have avoided liability if the terms of Unfair Contract Terms Act of 1977 as originally applied. This Act allowed only an occupier to exclude the common duty of care if the property is used for business purposes. However section 2 of the Act amends the 1977 Act to say that "breach of an obligation or duty towards a person obtaining access to the premises for recreational or educational purposes ... is not a business liability of the occupier unless granting that person such access for the purposes concerned falls within the business purposes of the occupier". The 1984 Occupiers Liability Act includes no statements with regards as to whether duty can be excluded by the occupier. This is sometimes suggested to mean that it is possible, since there are no provisions forbidding it. CC Ltd and AB Ltd would avoid liability if true since the Unfair Contract Terms Act of 1977 is stated not to apply to the 1984 Act and hence it would allow them to completely exclude liability. However it is also viewed that the duty of care cannot be excluded, since the stated aim of the Act was to uphold the common law principle of duty of common humanity which cannot be excluded because it was a minimum standard. The case of Baddeley v. Earl Granville [1887] 19 QBD 423 implies that a statutory duty cannot be excluded. However, in Smith v. Crossley Bros (1951) CLYB (1947-1951) 6831 where the plaintiff who was an apprentice employed in the defendants apprentice training school was seriously injured by a practical joke played upon him by his fellow-apprentices. The Court of Appeal held that the defendants were not liable to the plaintiff in negligence because his injury had occurred through an act of willful misbehavior which the defendants could not reasonably have foreseen. Question 4. Invitation to treat: This is an expression of the willingness to negotiate and where a person making it does not intend to be bound by the statement when accepted by the person to whom the statement is addressed to. An example of invitation to treat is a tender. This was demonstrated in the case of Spencer v. Harding (1870) LR 5 CP 561 where the defendant offered to sell by tender their stock and the court held that they had not undertaken to sell to the person who made the highest tender but were inviting offers which they could then accept or reject. Another example of an invitation to treat is an auction. An auction may be seen as an invitation to treat, with the property owner asking for offers of a certain amount and then selecting which to accept. This was illustrated in Payne v. Cave (1789) 3 TR 148. Also a shop owner displaying goods for sale will be generally making an invitation to treat. In the case of Fisher v. Bell [1961] 1 QB 394, where it was held that displaying a flicknife for sale in a shop did not contravene legislation which prohibited offering for sale such a weapon. An offer: In contract law an offer is an indication of one person called the "offeror" to another person known as the “offeree" of his willingness to enter into a contract on certain terms without further negotiations. Acceptance: This means meeting of mind of the offeror and offeree by the offeree performing the terms of the contract. The acceptance must be communicated. This was held in the case of Powell v. Lee (1908) 99 L.T. 284. However an offer may be withdrawn prior to acceptance. Performance of a certain act may denote acceptance. In Carlill v. Carbolic Smoke Ball Co. [1892] 2 Q.B. 484 in which an offer was made to pay £100 to anyone who having bought the offerors product and used it in accordance with the instructions nonetheless contracted influenza. The plaintiff did so and the court ordered payment of the £100. Her actions accepted the offer - there was no need to communicate acceptance. An offeror may revoke an offer before it has been accepted, but the revocation must be communicated to the offeree, although not necessarily by the offeror. This was held in Dickinson v. Dodds (1876) 2 Ch.D. 463. If the offer was made to the entire world, such as in Carlills case, the revocation must take a form that is similar to the offer. References Andrew Burrows, Casebook on Contract (Hart Publishing, 2007) Ed Bermingham, Vera; Carol Brennan (2008). Tort Law. Oxford University Press.  Elliott, Catherine; Francis Quinn (2007). Tort Law (6th ed.). Pearson Longman.  Jones, Michael (1984). "The Occupiers Liability Act 1984". Modern Law Review (Blackwell Publishing) 47 (6).  Mullis, Alastair (1991). "Duties to trespassers under the Occupiers Liability Act 1984". Conveyancer and Property Lawyer (Sweet and Maxwell) (January 1991). Read More