Lamposts Claim in the Law of Tort - Case Study Example

LAMPOST'S CLAIM IN THE LAW OF TORT Lampost has at least two possible causes of action for personal injuries in respect of the employer's duty to provide a safe system of work and (2) for consequential economic loss. Employer's Duty of Care. In the recent case of Jones v BBC, 2007 WL 2187023 (QBD), Jones, a freelance sound recordist for defendant BBC, claimed that he suffered personal injury caused by the negligence of the defendants. During a recording of the lowering of a windmill mast, and while Jones was walking under the inclined mast, the windmill rotor fell onto his back causing severe spinal injury rendering him paraplegic. In ruling for the claimant, the court stated that the BBC, as employer, had assumed responsibility for the health and safety of freelancers when they work on BBC productions. Since the 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. 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" Breach of Employer's Duty. Following the rulings in the Jones and Wilsons cases, it is clear that the football club is under a duty of care to provide Lampost with competent fellow employees, properly maintained site and facilities, and to provide a safe place and system of work. The question of whether the football club breached that duty of care depends on the standard of care owed by the defendant football club 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 Lampost, the failure of the football club to provide sufficient number of medical personnel and immediate treatment which caused Lampost's permanent limp and disability to play professional football constitutes a breach of the standard care required of the football club. Under the circumstances, having only one emergency doctor during a match is far from meeting the reasonable standard of care. First, it can reasonably be expected that injuries are bound to occur in a football match because, by the very nature of the game alone, it is physically strenuous and demanding. Second, it is a mathematical fact that the game is played by at least 22 players and having only one doctor during a match clearly does not meet the required standard of care. Third, considering that it was a premiership match, it can reasonably be expected that players are more competitive than usual and thus, injuries are bound to result from the matches. Hence, the football club should have hired more than one doctor. Moreover, following McDermid v Nash Dredging and Reclamation Co. Ltd. [1987], it can also be inferred that the football club is in breach of duty to provide a safe place and system of work under the principle of vicarious liability. The fact that the emergency doctor did not give immediate medical treatment to Lampost can be attributed to the negligence on the part of the football club. In the 2007 case of Majrowski v Guy's and St Thomas's NHS Trust, 1 A.C. 224 [2007], the House of Lords stated that under the principle of vicarious liability, a blameless employer is liable for a wrong committed by his employee while the latter is about his employer's business. Hence, the failure of the doctor to give immediate treatment is also attributable to the football club. In Watson v British Boxing Board of Control Ltd, [2001] Q.B. 1134, the claimant who is a professional boxer sustained head injuries in a fight regulated by the defendant. Some half an hour after the end of the fight, he was given resuscitation treatment and was later moved to a neurosurgical unit where he underwent surgery when he suffered permanent brain damage. In ruling for the claimant, it was stated that defendant have a duty to see that all reasonable steps were taken to ensure that claimant received immediate and effective medical treatment during the fight. The board was in breach of that duty by failing to require immediate resuscitation at the ringside which would have prevented him from sustaining permanent brain damage. Furthermore, Lampost would be able to bring a claim for all the consequential economic losses (loss of earnings as a professional football player) that are reasonably foreseeable from his permanent physical injury, i.e. limping. Considering the fact that the accident occurred during the period of negotiations to transfer Lampost to another club, that would have doubled his earnings, Lampost's claim might also include any consequential economic losses. As to the remoteness of damage, it is clear that any of damage suffered by Lampost was directly caused by the failure to provide immediate medical treatment and hence, it cannot be said to be remote. The test for remoteness of damage is that the damage must have been reasonably foreseeable. (Wagon Mound No 1[1961]) Defences. The football club may raise the defence that the failure to give immediate medical treatment is not the proximate cause of Lampost's permanent disability, i.e., that there is no causation. Applying the 'but for' test applied by Lord Denning in Cork v Kirby MacLean [1952], and illustrated in Barnett v Chelsea and Kensington Hospital Management Committee [1969], Lampost would have made a full recovery but for he had received an immediate medical treatment. There is no evidence of a 'novus actus' breaking the chain of causation. The football club may also raise the defence of contributory negligence. In the case of Jones wherein he was led under the mast, he was concentrating on his work and did not realise that he was passing under it. His conduct according to the court amounted to no more than a moment of careless inadvertence lacking the essential carelessness necessary for any finding of contributory negligence. Following the Jones case, it can be argued that the broken leg caused by the tackle was a result of his eagerness to defend the goal and hence, there can be no finding of contributory negligence. Stadium Owner's Liability. Lampost also has a cause of action against the owner of the Sloane Ranger's stadium for failure to provide adequate and sufficient medical personnel and equipment within the stadium premises. In the Jones case, it is incumbent upon the farm owners who are occupiers of the site to take steps to ensure that the BBC crew did not pass under the mast during its lowering. ESTATE OF BUCKHAM'S CLAIM A claim for personal injury and/or wrongful death resulting from negligent driving may be filed by the Estate of Buckham against Fabulous. At the outset, it must be emphasized that although proceedings could be commenced by an estate of a deceased person, those proceedings could not be prosecuted until a person had been appointed to represent the estate. The estate of a deceased person did not amount to an effective party by whom a dispute could be determined. (Piggott v Aulton (Deceased) [2003] R.T.R. 36). To be able to claim against Fabulous for physical injuries and/or wrongful death under the law of tort, it is imperative that causation must be established. There is causation when both factual causation and legal causation are present. Factual causation refers to the nexus between the defendant's action and the claimant's damage (the 'but for' test) while legal causation refers to the break or 'novus actus' in the chain of causation. Applying the 'but for' test applied by Lord Denning in Cork v Kirby MacLean [1952], and illustrated in Barnett v Chelsea and Kensington Hospital Management Committee [1969], Buckham would not have suffered brain damage but for failure of Fabulous to apply the brakes and consequently crashing into Buckham's car. It can likewise be argued that Buckham would not have committed suicide had he not suffered brain damage as a result of Fabulous' negligent driving. In both instances, it could be argued that there is no evidence of a 'novus actus' breaking the chain of causation. Fabulous is therefore liable to the Estate of Buckham as a result of negligent driving. Defences. Fabulous may raise the defence that there is no causation between Bucham's death and/or brain damage and the crash brought about by the failure of Fabulous to apply the brakes. As to the suicide, it can be argued that it was not caused by the brain damage because there is evidence of a 'novus actus' breaking the chain of causation which is the 6-month period that has elapsed from the time of the accident and before he committed suicide. In fact, Buckham had been suffering from depression prior to the accident. Fabulous may also argue that the damage suffered by Buckham was too remote. The test for remoteness of damage is that the damage must have been reasonably foreseeable. (Wagon Mound No 1[1961]). It cannot be reasonably foreseen that a driver who is wearing a seatbelt would bang his head thereby causing brain damage. To mitigate liability, Fabulous may raise the defense of contributory negligence considering that at the time of the accident, Buckham was not wearing his seatbelt which ultimately resulted to brain damage. It has been suggested that injuries sustained by a victim were due to the failure to wear a seat belt and that the use of a seat belt would probably have prevented any injuries. (Barot v Morling [2002] C.L.Y. 3258) Thus, it has been held that where injuries resulting from a road accident would have been prevented or lessened if a seat belt had been worn, the failure to wear a seat belt amounts to contributory negligence on the part of the plaintiff and damages awarded should therefore be reduced. But it was also ruled that the allegation of negligence relating to the failure of the victim to wear a seat belt was bound to fail when expert evidence showed that the use of a seat belt would still result in the same or more serious injuries. (Froom v Butcher [1976] Q.B. 286) Furthermore, while Fabulous was advised by his doctor not to drive a car while his leg is put in a cast, he may also argue that such mistake in driving the car was merely a mistake of judgment but it was not to be categorised as negligent. (Elisabeth Ruth Wattleworth v Goodwood Road Racing Company Limited, [2004] EWHC 140 (QB). Moreover, Fabulous may also argue that he should not be found to be negligent as he was merely responding to an emergency which is similar to a police responding to call at night. (cf. S (A Child) v Commissioner of Police of the Metropolis, 2000 WL 33201536 (QBD) FABULOUS' CLAIM IN THE LAW OF TORT In Condon v Basi, 2 All E.R. 453 (1985), it was ruled that those who play a competitive sport owe a duty of care to other players and may be liable for negligent conduct. In the Condon case, the judge believed the "value judgments" of the referee stating that: "[The tackle] was made in a reckless and dangerous manner not with malicious intent towards the plaintiff but in an 'excitable manner' without thought of the consequences." However, in the given problem, "Lampost, in his eagerness to defend the goal, unintentionally collides with Fabulous." In Condon, it was made in a reckless and dangerous manner while in the case of Lampost, the collision was unintentional. In Lampost, the referee merely awarded a free kick while in Condon, the negligent player was sent off the game. Likewise, in Watson v Gray, 1998 WL 1043474, it was ruled that "in determining whether a professional footballer was liable in negligence for an injury caused to another player in the course of a tackle, the question was whether, on a balance of probabilities, the challenge was one that a reasonable professional player would have known carried a significant risk of serious injury." Clearly, any professional footballer in Lampost's position would have defended the goal the way he did with that required degree of care under the circumstances. Whatever damage Fabulous may have sustained, it was purely a case of volenti non fit injuria. Clearly, Fabulous has no claim against Lampost under the law of tort. SUMMARY Lampost has at least two possible causes of action in tort: (1) liability for injuries in respect of the football club's duty as employer as well as the stadium owner's duty to provide a safe system/environment of work and (2) a cause of action in tort for consequential economic loss. On the other hand, the Estate of Buckham may file a claim against Fabulous for personal injury and/or wrongful death resulting from negligent driving. Fabulous has no claim against Lampost under the law of tort. BIBLIOGRAPHY Cases Cited Jones v BBC, 2007 WL 2187023 (QBD) Wilsons & Clyde Coal Company, Limited v English, [1938] A.C. 57 Latimer v A.E.C. Ltd.[1953] McDermid v Nash Dredging and Reclamation Co. Ltd. [1987] Majrowski v Guy's and St Thomas's NHS Trust, 1 A.C. 224 [2007] Watson v British Boxing Board of Control Ltd, [2001] Q.B. 1134 Wagon Mound No 1[1961] Cork v Kirby MacLean [1952] Barnett v Chelsea and Kensington Hospital Management Committee [1969] Piggott v Aulton (Deceased) [2003] R.T.R. 36 Barot v Morling [2002] C.L.Y. 3258 Froom v Butcher [1976] Q.B. 286 Wattleworth v Goodwood Road Racing Company Limited, [2004] EWHC 140 (QB) (A Child) v Commissioner of Police of the Metropolis, 2000 WL 33201536 (QBD) Condon v Basi, 2 All E.R. 453 (1985) Watson v Gray, 1998 WL 1043474 Rootes v Shelton, [1968] A.L.R. 33; (1967) 41 A.L.J.R. 172 (HC (Aus)) Blake v Galloway, 3 All E.R. 315 Leebody v Ministry of Defence, [2001] C.L.Y. 4544 (CC (Bristol)) Pitcher v Huddersfield Town Football Club Ltd, Unreported (QBD) Richardson v Davies, [2006] C.L.Y. 2879 (CC (Medway)) McNamara v. Duncan [1979] A.L.R. 584 Donoghue v. Stevenson [1932] A.C. 562, H.L.(Sc.) Reg. v. Billinghurst [1978] Crim. L.R. 553 Lindesay v Lamb [2007] EWHC 2948 (QB) Bennett v Brinks Ltd [1999] C.L.Y. 1378 1999 WL 1111840 Kaye v Alfa Romeo (GB) (1984) 134 N.L.J. 451 Richley (Henderson) v Faull (Richley, Third Party)[1965] 3 All E.R. 109 Davies v Swan Motor Co (Swansea) Ltd [1949] 1 All E.R. Case Comments Kevan, Sports Personal Injury, I.S.L.R. 2005, 3(Aug), 61-67 Felix, J.P.I.L. 1999, SEP, 222-224 Hudson, L.Q.R. 1986, 102, 11-13 Charlish, A Reckless Approach To Negligence, J.P.I. Law 2004, 4, 291-296 Read More