Claim Compensation for the Injury in Whacky Builders Ltd - Case Study Example

Introduction In most societies, order is highly prized. People want to be sure that they can go about their daily business without being unnecessarily deprived of the right to do what they need or want to do. If a person falls sick and is unable to go about doing the everyday activities, as long as no one inflicted this disease on the person, the person has only to seek the best possible medical intervention and get on with his or her life. On the other hand, when another entity, individual, group, business or otherwise, through wilful or neglectful actions, cause harm to another, the victim feels a need to seek redress through the relevant authorities. As Elliott and Quinn aptly point out, “Obviously if millions of people have to live together, their lives will be more pleasant and peaceful if some measures are taken to prevent people from killing or physically attacking others, walking into their houses and taking things away, or smashing up someone elses’s car” (Elliott & Quinn 2004). While many of the behaviours mentioned above may be reprehensible there is not universal agreement on what is criminal and what is not, at least in the minds of individuals. In part, it is with this in mind that the law tries to establish the parameters or bounds within which an act might be considered criminal. There are other acts which though inexcusable do not necessarily fit the label of criminal though this is not to say that they exculpate the perpetrator from complete blame or from taking responsibility. A number of the cases below fall into the murky category where someone has to take responsibility though such responsibility need not be considered one of criminality. Whacky Builders Ltd were undertaking work constructing a new factory. On one occasion a workman was operating a large crane on the site. Suddenly the crane swung over an adjoining main road and mistakenly tipped out rubble, some of which fell on Joe who happened to be walking by at the time. Luckily he was not badly injured, but he was taken to hospital. He was off work for a week as a result of his injuries, causing him lost wages of £1,000. He now wishes to claim compensation for his injury and lost wages. There is no indication that the workman responsible for operating the crane deliberately tried to hurt Joe. If it were determined that the workman had the intention to harm Joe the case would fall under the rubric of criminality. What about recklessness? The site of the factory is near a main road. It seems that the contractors ought to have known that a risk exists or could exist but that no reasonable precautions were taken to obviate the possibility of such an occurrence. As Elliott and Quinn explain, “The Law Commission…applies the test of recklessness to the taking of risks in relation to a finding of recklessness: the defendant’s risk taking must have been ‘unreasonable’. To determine whether the risk taking was unreasonable the courts will balance such factors as the seriousness of the risk and the social value of the defendant’s conduct” (Elliott and Quinn 2004). If it cannot be proven that the workman involved in the accident did not consider taking an unreasonable risk it would be difficult to consider a criminal case. In any case, Joe is not interested in pursuing a criminal case against the company. “The existence of negligence is traditionally determined according to an objective test, which asks whether the defendant’s conduct has fallen below the standards of the reasonable person. If it can be established that Whacky Builders failed to follow established procedures such as putting up notices to warn off pedestrians who might wander into the danger zone of the work area then they could be charged with neglect, in which case Joe could pursue a case against Whacky Builders. On another occasion Whacky’s workmen were digging the road outside the new factory and mistakenly cut through the main power cable, causing a power cut to the surrounding area. Smallwood Primary School was located further down the road. When the power went off the school closed for the rest of the day. Some children came past where the road was being dug. Sonia, aged 9, fell into the hole and was badly injured. She has recovered, and now wishes to bring a claim for compensation. Once again, Whacky Builders, it appears to have been neglectful. Because the little girl was badly injured. This would be subjective recklessness which, as noted above, notes that the defendant failed to take reasonable steps. As Elliott and Quinn point out, “Defendants must always be aware of the risk in order to satisfy this test of recklessness. In addition, their conduct must have been unreasonable” (Elliott and Quinn 2004 14). As a construction company Whacky Builders ought to have maintained some high standards both with respect to protecting their own workers and of course, those that might come to or near their work place and be exposed to the potential hazards. From the explanation provided by Jonathan Herring in Criminal Law: Text, Cases, and Materials, it would seem that Whacky Builders may have violated some kind of regulatory code, in which case they could be considered to be strictly liable, paving the way for Sonia to pursue her case against them. As Herring notes, a court will presume mens rea might come down to “Whether the offence is aimed at preventing a various serious danger. Where an activity involves a potentially grave social harm…it is more likely to be an offence of strict liability. Where there is no public danger the offence is less likely to be one of strict liability” (Herring 2004 224). The case of Gammon (Hong Kong) Ltd v Attorney-General (1985) might help to shed light on the culpability of Whacky Builders as there are substantial similarities to what transpired. In the Gammon case, the defendants were constructing a building in Hong Kong and part of the building collapsed because the builders had failed to follow the stringent codes set down by Hong Kong authorities. In this case, there was clear evidence that the defendants had deviated from the building code in the territory (Elliott and Quinn 2004 29). In the case of Whacky Builders it is not mentioned whether they broke any such law but it is difficult to assume that construction contractors are not obliged to ensure that holes that they make are so protected that the public do not have to suffer from their negligence. Big plc, whose premises were further along the road, lost their power supply for the rest of that day. All of their business was generated on computer, and therefore they closed for the rest of the day. They are arguing that they suffered lost business as a result and want to claim £10,000 as compensation for the profit that they would have made that day. The offence of criminal damage may be considered in this case. Even though it cannot be proven that there was a mens rea in terms of Whacky Builders wanting to cause damage to the business of Big Plc, it comes back to the issue that Whacky Builders did not take enough precautions and perhaps did not take the professional steps necessary to ensure that the problem in question, namely, cutting through a power mains, did not happen. In fact, the offence of criminal damage, which is contained in the Criminal Damage Act 1971, states in section 1, that: “A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence” (Elliott & Quinn 2004 175). Unfortunately, this particular law refers to tangible property, meaning that it would be difficult for Big Plc to convince a judge solely on the basis of this law. If a direct connection can be made between the mains and Big Plc and if their regular daily intake can be established, it is possible that a sympathetic court can take their case into consideration. The road, however, will be uphill, especially if other businesses were similarly affected and made no effort to seek compensation from Whacky Builders. Baljit was walking past the building site when a piece of brick flew over the wall and struck her on the head. She was knocked unconscious and an ambulance was called. Because of a shortage of ambulance staff, the ambulance did not arrive for 30 minutes. Baljit was conscious again when she arrived at hospital. A doctor came to see her and said, “you have only got a scratch” and covered the injury with a plaster. He told her to have a check up with her doctor when she got home. However Baljit died from an internal haemorrhage a few hours later as a result of her injury. Her husband now wishes to claim compensation for her death and also for his loss of income, as he will now have to spend more time at home looking after the children. Baljit’s husband might have a claim against Whacky Builders but certainly cannot put the whole blame on the construction company. This is because if Baljit had had the benefit of timely and proper medical intervention she might not have died. Also, it would not be so easy to blame the hospital and to get a substantial settlement. This is not to say that it would be impossible but the doctor did not say that all was well and that Baljit could resume her life; she was asked to see her regular doctor. The doctor who examined Baljit might be sued for professional negligence but it is becoming harder and harder to succeed in this kind of claim. This is particularly the case where the compensation would cost less than £20,000. Since the hospital was not responsible for the injury in the first place putting the full burden on them might be problematic but also one might have expected that the doctor would order some X-rays or follow some medical procedures that might have revealed the internal bleeding that might have hastened Baljit’s death. One reason for the expected difficulty despite what is a very real loss for Baljit’s husband is Bolam. “This case is credited with judicial recognition that in medical matters relating to diagnosis and treatment, there is often scope for a genuine difference of opinion, and that a doctor is not negligent merely because his view is different from that of others in his profession, nor because he has shown less skill or knowledge as others would have shown” (Theng www.lawgazette.com.sg/2000-6/focus4.htm). This means that if in the view of a doctor he did what he felt was in keeping with accepted medical practice then he has essentially not done anything for which he could be held responsible. Even if other doctors disagreed that the doctor who took care of Baljit had not done what they might have done this does not put Baljit’s doctor completely at risk of losing in court. This is because in Maynard v West Midlands Regional Health Authority [1985] 1 All ER 635, it was held that a doctor should not decide on cases of negligence based on differences in medical opinion. In other words, some doctors might genuinely hold one set of ideas that differ from their colleagues and yet both would have validity. All is not lost, however. If Baljit’s husband, or more appropriately, his lawyer, can prove that the doctor who looked at Baljit did not follow the most basic procedures there is a small window of opportunity. Still, whether the family gets anything at all still depends on going through a contentious adversarial system in which what the family might win in terms of money might depend on what value the courts place on Baljit’s life. Going down the conventional route to find satisfaction from the courts is a frustrating experience, as some have found. As Michael Seaton writes, “At the end of the medical negligence case our lawyer advised me cheerfully that we had done well to conclude our litigation successfully in just two-and-a-half years. The average is more than twice as long” (Seaton 2001). Even though the doctor who saw Seaton’s wife had overlooked an important factor in the biopsy, giving an all-clear that eventually led to the wife’s death, the case was hardly open and shut. In addition, “One of the more miserable revelations of the medical negligence treadmill is that the amount that may be claimed by a spouse or dependants for a bereavement is set statutorily at pounds 7,500 (raised only recently from a derisory pounds 2,500). Any extra, as calculated by your forensic accountant, is most likely to depend on loss of earnings - the income your partner might have contributed over the remainder of their natural span” (Seaton 2001). Bringing on the lawsuit itself costs money, which means that the Baljit’s family has to weight matters carefully and decide whether they want to go to court as a matter of principle or not. They have to be prepared for a long, slow, grind through the corridors of justice, with no guarantee that their claim will be satisfied. On another occasion there was a spillage of oil over part of the building site. Mick, a workman, slipped on the oil and broke his leg. Whacky had put up a warning notice, which Mick did not see but they had not tried to mop up the spillage. He wishes to bring compensation for this injury and for his time off from work. Critically discuss all possible negligence claims that could be brought in the above situation and advise the various parties of all the elements that would have to be proven in respect of such claims. The company had a sign that warned people about the spillage but whether Mick has any chance of winning in court would depend to some extent on how prominent the sign was and where it was located. If it was such that any reasonable person should have seen the sign and taken the necessary steps to avoid becoming a victim, this reduces Mick’s chances considerably because then the onus falls on him in that he had not maintained sufficient awareness as he walked past the construction site. On the other hand, if the sign was so small that no reasonable person would have been expected to see it this increases the chance for Mick to get compensation. Also, even though the company had put up a sign, professional care would require that they do something to protect the spillage. This could easily have been done by putting pylons around the spillage or putting a railing around it even if they were not prepared to clean it yet. This would clearly have made it difficult for the average person to suffer from possible slippage. Mick could therefore attempt to claim compensation on the basis that the sign put up by Whacky Company was not large or visible enough and that they should have put some protective barrier around the spillage. If the company could prove, however, that many people had walked by and noticed the sign and the spillage and avoided it, this makes Mick’s case all the more difficult though there is a small window of opportunity for him to win especially if Whacky Builders have flouted a definite and clear code pertaining to their profession regarding such spillage and what to do about them. Bibliography “Adversarial burden of negligence to be cut.” Hospital Doctor. (June 15, 2006):9. Elliott, Catherine & Quinn, Frances. Criminal Law, Fifth Edition. London, UK: Pearson Longman, 2004. Herring, Jonathan. Criminal Law: Text, Cases, and Materials. Oxford, UK: Oxford University Press, 2004. Seaton, Matt. “Comment & Analysis: Taking on the health service: My wife died through medical negligence. And what happened after that left the family feeling sullied.” The Guardian (May 18, 2001):25. Theng, Kuah Boon. “The demise of Bolam – or a Storm in a Teacup?” www.lawgazette.com.sg/2000-6/focus4.htm (November 6, 2006) Read More