Law of Tort Issues - Assignment Example

LAW OF TORT A. The parties may claim the tort of negligence when suing the company for not being responsible. In addition, Homer may sue and claim pain and suffering that she underwent when the fryer exploded and caused her serious injuries. In Donoghue v Stevenson1 it was established that in order to prove negligence it must be proven that the plaintiff was owed a duty of care, there was a dereliction of the duty, the dereliction caused injury and the plaintiff suffered damage that resulted from the breach. In the case of Page v Smith 19962, the plaintiff got involved in an accident which was caused by the defendant’s negligence. As a result of the accident, the plaintiff suffered injuries and after the accident he was no longer able to work due to chronic and permanent ME. The House of Lords ruled that duty of care was awed and that the plaintiff was a primary victim because he was involved in the accident. Similarly, Homer may argue the eggshell skull rule: you have to take the plaintiff as they are as was held in R v Blaue 19753. According to this rule, the defendant will hold liability for any acts of negligence that cause injury to another person even if the person that gets injured is harmed more due to a pre-existing medical condition or vulnerability. The rule is best put in the assertion that if a person employs a person with a head as soft as an eggshell while unaware of their condition, they would still have liability were such persons to get injured. As such even if Springfield Dessert did not know that Homer and Selma were mentally ill, they would still be liable since they negligently employed and stationed Homer in a highly sensitive area. They also owed a duty of care, to Homer, there was a dereliction of the duty, the dereliction caused injury and the plaintiff suffered damage that resulted from the breach. The same was also held in Mcloughlin v. Obrien 1982.4 B. Economic losses are usually covered under the Fatal Accidents Act of 19765 for pure economic loss while negligent misstatements are covered under Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964].6 An economic loss may arise despite lack of physical damage provided loss has been caused as a result of a negligent statement rather than a negligent action. This claim of negligence can only be approved if a duty of care is established. According to the rule in Spartan Steel and Alloys Ltd v. Martin & Co. Ltd 19737 pure economic loss is the loss in which there is no physical harm to the person as this loss is only reflected in the balance sheet. In the case of Chaudhry vs Prabhakar (1989), the plaintiff asked the defendant who was a friend claiming to be knowledgeable about car for advice on purchasing a vehicle. The plaintiff went to buy the car after the defendant recommended to her that the mentioned car had not been involved in any accidents. After the card had been bought, it was realized that it had visible damages and the defendant had not enquired about the cause of the cause of the damages. The car was found to be unroadworthy due to previous accidents it had been involved in. The court held that duty care was owed by the defendant since he knew that the plaintiff had relied on his advice basing on the claim that he was knowledgeable about cars. The statute provides that a duty care is owed if there exists a special relationship between the claimant and the defendant as was held in Hedley Byrne & Co Ltd v Heller & Partners Ltd 1964.8 In this instance Hedley the advertising company relied on the statements made by Heller and partners to determine the creditworthiness of a reference given by a client. According to the House of Lords a duty of care was owed since there was a special relationship between Heller and Partners bank and the society which expects a banker to be true to his word. Special relationship arises following an assumption of responsibility by the defendant that is if the defendant is aware that the claimant relies on their special skills and the claimant’s responsibility depends on the statement made by the defendant. A duty can only arise when advice is sought and given within the business context. There is a special relationship between Paul and Ringo his accountant and Paul and the Financial Bugle. The Financial Bugle owes a duty of care to society as a whole and is expected to exercise that special relationship of expertise in offering advice. Paul may sue the Financial Bugle and claim pure economic loss from the misstatements of the Financial Bugle. However, his suit against his accountant may not succeed given that the accountant advised him to seek further advice but not from the Bugle. As such it may be argued that the accountant not so sure of the PC universe stock had fulfilled his duty of care by asking Paul to seek a second opinion. C. Breach of duty exists in the event where the defendant has not met the required standards of care by the law. To prove liability in negligence, the claimant must be able to prove that the defendant owed a duty of care, which was later breached by failure to meet the required standard of care, which led to the claimant suffering loss or damage in the process. The court must establish what standard of care that should have been exercised by the defendant and if the defendant’s conduct fell below the standard of care. In the case of Blyth vs. Birmingham waterworks 1856,9 it was ruled that ‘negligence is the omission to do something, which a reasonable man, guided upon those considerations, which ordinary regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do. In Hall v Brooklands Auto-Racing CLUB 193310 and MacFarlane v Tayside Health Board 199911 reasonable person is described as the person on the Clapham omnibus (ordinary commuters). The standard demanded is thus not of perfection but of reasonableness. It is an objective standard taking no account of the defendant’s incompetence, he may do the best he can and still be found negligen. The defendant is therefore required to take as much care as that of a reasonable person in his position. In the case of Anthony and Declan vs. No More Chills and Hot Stuff Heating companies, according to the objective test, the companies should be aware of the risks posed by the machines towards the employees and hence put the necessary measures to ensure they are safe from exposure to asbestos. The fact that the employers exposed them carelessly to asbestos which no reasonable man would do means they fail the standard of care expected of a reasonable man and are hence liable in breach of duty of care. Anthony and Declan should file a case against their employers for a breach of duty. D. In Dunnage v Randall12 and another 2015, the defendant a schizophrenia while visiting his nephew poured petrol over himself and died while also causing serious injuries to his nephew. The claimant sued the estate of Mr Randall. It was held that a person suffering from severe mental illness is not subject to exercise reasonable care since they cannot be expected to control themselves unless the situation incorporated much voluntary behavior. Ronny could defend himself by asserting that he suffers from mental illness and that his actions were not voluntary. However, since he was carrying a knife he may find it hard to convince a court of his involuntary action since he brought the knife into the train without provocation. Under the Occupiers Liability Act of 198413 all property owners need to take reasonable steps to ensure their premises are safe. It may be argued that the fork lift may be considered a premises that needed to be kept safe by Bricks R US. On the other hand Bricks are US may argue that they exercised reasonable care in trying to offer protection to Ronnie but he refused to wear a helmet. They may argue Volenti non fit injuria by asserting that Ronnie put himself at risk by refusing to wear a helmet and continued to work in the fork lift despite knowing the risks of not having a helmet nor safety screen. They may also argue for comparative negligence by asserting that Ronnie was partially responsible for his injuries by refusing to wear a helmet as was held in Li v. Yellow Cab Co.1975.14 The defendant and the plaintiff were both found to have been negligent and hence the court asserted that everyone is responsible for their acts except in instances in which the person has also contributed to their injury by being negligent too. E. Various categories of damages exist as s remedy to claims of tort. When there is a successful claim for negligence that resulted to personal injury, the most probable action is damages. There are two categories of damages, which include pecuniary and non-pecuniary damages. As for the case of John, pecuniary loss and damages will be assessed. Pecuniary losses are normally calculated in money terms and relate to losses that have been suffered either pre-trial or post-trial. Pre-trial loss of earnings entails special damages, if a claimant, in this case John, used to work overtime or received extra benefits they are also figured into the calculation. In the case of British Transport Commission vs. Gourley,15 the figure that was used for pre-trial loss of earnings was the net earnings. Post-trial loss of earnings entail general damages, this will have to be considered by the court as to whether claimant, John, is unable to work again as a result of the injuries sustained or whether his earning potential has been reduced due to loss of capacity. The assessment will be made whereby John will be awarded a given sum of money. The formula used in this case will include: Multiplicand, which is the courts assessment of the claimant’s net annual loss that is the gross annual loss until the time of the trial then modified in case of any potential increase. Tax will be deducted including the national insurance and other charges. Multiplier entails the period of future loss in case the claimant, John is unable to work after the accident, this figure will be based of pre-accident retirement age and converted using Ogden tables in order to avoid overcompensation as was held in Pickett v British Rail Engineering Ltd 1980.16 Multiplicand × Multiplier ꞊ Future loss of earnings It is from this basis that john will be awarded damages following the accident. Donoghue v Stevenson [1932] UKHL 100 Page v Smith [1995] UKHL 7 R v Blaue (1975) 61 Cr App R 271 McLoughlin v O'Brian [1983] 1 AC 410 Fatal Accidents Act of 1976 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 Spartan Steel & Alloys Ltd v Martin & Co (Contractors) Ltd [1973] 1 QB 27 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 Blyth v Birmingham Waterworks Company (1856) 11 Ex Ch 781 Hall v Brooklands Auto-Racing Club [1933] 1 KB 205 Macfarlane and Another v. Tayside Health Board (Scotland) [1999] UKHL 50 Dunnage v Randall and another [2015] EWCA Civ 673 Occupiers Liability Act of 1984 Li v. Yellow Cab Co., 532 P.2d 1226, 13 Cal.3d 804 [1975] British Transport Commission V Gourley HL 1955, 34 ATC 305; [1956] AC 185; [1955] 3 All ER 796 Pickett v British Rail Engineering Ltd [1980] AC 136 Read More