Law of Obligations(Tort) LLB - Essay Example

Frances (and his parents), depending upon the effect of the incident on the child, may also have a claim for psychological damage against the nursery brought about by the latter's negligence. In the recent case of Jones v BBC, 2007 WL 2187023 (QBD), where Jones, a freelance sound recordist for defendant BBC claimed that he suffered personal injury when a windmill rotor fell onto his back causing severe spinal injury rendering him paraplegic. In ruling for the claimant, the court stated that since BBC's safety crew had identified a risk of the falling mast, a discussion before filming should have been made to warn the crew not to go beneath it.

But the safety crew did not give the warning. Such failure of BBC, through the safety crew, is considered negligent which caused Jones' accident. Thus, the BBC was liable for Jones' injuries. Also, the cameraman and Jones worked as a team because their equipment was linked. Jones with his equipment was following the cameraman who had decided to pass beneath the mast thereby leading Jones into the hazardous area. The cameraman was then in breached of his duty of care and the BBC was vicariously liable for that negligence.

In Wilsons & Clyde Coal Company, Limited v English, [1938] A.C. 57, the House of Lords stated as follows: " primarily the master has a duty to take due care to provide and maintain a reasonably safe system of working in the mine, and a master, who has delegated the duty of taking due care in the provision of a reasonably safe system of working to a competent servant, is responsible for a defect in the system of which he had no knowledge" By the Jones and Wilsons cases, it is clear that the employer is under a duty of care to provide the employee with competent fellow employees including a qualified medical personnel, properly maintained site and facilities, and to provide a safe place and system of work.

The question of whether the employer breached that duty of care depends on the standard of care owed by the employer to its employee and whether it has taken reasonable steps considering the circumstances. (Latimer v A.E.C. Ltd.[1953]) In Jones, the breach of the employer's duty consists in BBC's failure (through its safety crew) to discuss with the cameraman and Jones the risk of the falling mast and to warn the cameraman and Jones in unequivocal terms that they must not go beneath it. In Wilsons, the breach by the employer consists of its failure to provide competent fellow employees, properly maintained mine and equipment, and to provide a safe place and system of work.

In the case of Ina here, the failure of the employer to provide competent fellow employees and to properly provide and maintain a safe place and system of work which caused the employee's disability to work for three (3) months constitute a breach of the standard of care required of the employer. Jack's negligence in leaving the drill on the floor in a place where thirty (30) toddlers freely roam about constitutes a negligent act for which the employer must be held vicariously responsible. The nursery cannot invoke the defence that Jack is merely a hired self-employed carpenter because as the court stated in the Jones case the BBC had clearly assumed a responsibility for the health and safety of freelancers when they were working on BBC productions that was equivalent to that of an employer to a direct employee.

Jack should have been more careful with his tools because it can reasonably be expected