Liability of the Hanby Borough Council - Essay Example

Business Law The question of liability of the Hanby Borough Council will rest on negligence due to its failure to finish constructing the flood barrier. The Council may be guilty of a claim in negligence because there has been an incidence of flood before, yet the Council has failed to complete the construction of the flood barrier over a period of five years. The Council may be held to be liable for a breach of duty of care owed to both Abi and Burton for the damage that has been caused to their respective premises due to its negligence in repairing the flood barrier. However, the Council may not be held liable for the losses of 50,000 pounds that Burton is trying to claim in the form of lost profits. The original neighbor principle mandating a general duty of care towards others on the basis of owing consideration to one’s neighbor, was set out in the case of Donaghue v Stevenson.1 This was later refined in the case of Caparo v Dickman2 where the scope of the duty of care was refined on the basis of three principles: (a) was there a relationship of sufficient proximity between the plaintiff and the defendant? (b) Was the damage caused to the plaintiff reasonably foreseeable? (c) Is it just and reasonable to impose a duty of care? This may be applied in the case of both Abi and Burton, who have suffered damages in the form of repairs needed for their homes, with Abi also sustaining injuries. Abi is a local resident of the area and Burton’s is a local business, therefore the Council is responsible for ensuring their safety by maintaining the flood barrier. Secondly, the damage caused is likely to be held to be reasonably foreseeable because Hanby Borough Council is responsible for maintaining flood defenses along the river and were told to improve the defenses. Since a flood had occurred before, it is reasonable to assume that such damages occurring in the future would have been a foreseeable event and therefore the Council may be held to be negligent in failing to complete repairs quickly. Lastly, the Court may indeed deem it just and reasonable to impose a duty of care in this case, since the negligence of the Council has resulted in damages caused to the premises of both Abi and Burton, as well as further injuries to Abi while she was being rescued which required hospitalization. The underlying core for the establishment of the principles wherein negligence has been held to be legally liable under the principles spelt out in the cases above, is the sentiment of moral wrong doing for which the offender is to be held liable. Therefore if the Hanby Council is to be held accountable, it would be on the failure to perform an underlying moral duty owed to the citizens of the Hanby borough. However, as Holbrook points out, these precedents on negligence are being extended to cases where the risk of injury may be almost negligible, yet the claimants succeed on the basis of improbable consequences that occur and cause injury to the claimants3. He states that Courts are now quick to award damages on the basis of negligence, such as in the case of Spowart v Nottinghamshire.4 As a result, the tendency has been for individuals to be held liable for actions which could have been done by anyone but accidentally had consequences that may have been foreseeable only with the benefit of hindsight. This is applicable in the case of the injuries that have been caused to Abi during the process of her rescue from her home during the flood. In the first instance, a wrong has occurred, i.e, the negligence of the Council in repairing the flood barrier, which in turn has caused flooding of Abi’s house, so that she had to be rescued and sustained injuries in the process. In the case of Wagner v International Railway (1921) Cardozo J articulated the extension of a wrong as follows: “the wrong that imperils life is a wrong to the imperiled victim…”5 On this basis, it appears that Abi’s injuries and the expenses resulting there from may also be extended to the Hanby Council. However, in this context, it may also be necessary to consider the case of Barrett v Ministry of Defence.6 In this case, the Ministry of Defence was implicated for negligence in failing to enforce disciplinary regulations against drunkenness, which led to the death of a naval airman. The Plaintiff in this case argued for an extension of duty of care on the Ministry based on the category of the relationship between the Ministry and the airmen. In this case the Court made it clear that the characteristic which will determine whether or not a relationship will be placed in those categories where a duty of care will exist is the extent of the reliance placed by one party on the other for his/her safety. In the case of Barrett, the Court held that it would be fair and just to leave the adult airman to be responsible for his own actions in consuming alcoholic drinks, therefore the Ministry was hold held liable for negligence to the airman7. But where Abi is concerned, the Council has a direct responsibility to the residents to ensure their safety from flooding, especially since there had been instances of flooding before. In the case of Barrett the Court held that diluting self-responsibility of one adult and placing the blame on another adult would not be reasonable from the context of negligence. But in Abi’s case, the injuries she has sustained have resulted during the course of her rescue and have been caused by her rescuer. Holding the rescuer liable for the injuries caused to Abi because she had to be rescued after the Hanby Council’s negligent act which resulted in flooding would not be what the Court might consider just and reasonable. Therefore, it appears likely that the Court may award Abi damages payable by the Hanby Council for the injuries she has sustained and the week that she spent in hospital, recovering. The injuries caused during Abi’s rescue belong to the category of improbable causes that can be foreseen only by hindsight as mentioned by Holbrook8 and therefore liability is likely to be imputed by the Courts on the Council. Moreover, it appears likely that Abi may also be able to apply the precedent in the case of Wilsher v Essex Health Authority9 in demonstrating that Hanby Council contributed materially to the injury since it arose out of her rescue during the flood, although they did not directly cause it. Damages caused to Burton’s property due to the flood and the repairs he has had to make may fall under the category of damages that may be awarded by the Courts due to breach of the duty of care. The damages to Abi and Burton’s property has resulted from the failure of the Council to repair the breach in the flood gates. This may qualify as negligence under the category of omission, or failing to do something that a reasonable person would have done.10 This will be even more applicable because the defendant, i.e, Hanby Council, had the control over the land and therefore has responsibility for anything dangerous that occurs on the land which could be a danger to others through its own acts of omission.11 The Council may not be able to avoid liability in negligence for damages caused to Ani’s and Burton’s properties. As a result of the facility with which the Court awards damages for liability in negligence, there is now increased caution and defensive practices that are being adopted in order to avoid such claims. The Compensation Act of 2006 has tried to address this problem by requiring courts to consider whether the required standards of negligence would discourage desirable activities12. By the same token the other side of this argument may also be extended to whether the required standards of negligence would encourage undesirable activities and unjustified claims for negligence. For example, while Abi’s claim for damages in lieu of repairs needed to her house after the flooding would be perfectly reasonable and likely to be granted by the Courts. However, can this be extended to Abi seizing this as an opportunity to carry out an entire renovation of her home at the Council’s expense, as opposed to merely fixing the damages caused by the flood? Where public authorities are concerned, the Court have shown a reluctance to enforce negligence claims, especially because the end result as Holbrook13 points out, would be in an overly defensive practice by these authorities. This was also the case in Hill v CC of Yorkshire14 where the Court did not award such a claim of negligence because it could produce a detrimental impact on the performance of duties by public authorities. Moreover, another aspect that is considered by the Courts is the fact that such claims are met out of public resources available to the public body and as a result, reduce the resources available for these public authorities to perform their duties15. While the damages on injuries sustained by Abi are likely to be granted by the Court, the question of renovations comes under the category of purely monetary losses, which may be yet another reason for the Court to hold back on the grant of such damages. For example, in the case of Burton, the 50,000 pounds that he is claiming are against projected losses of profits from his business. However, where such losses from a business are concerned, the Court has made it clear that purely monetary losses may not fall into the category where recoveries can be claimed in the grounds of negligence. For example in the case of Cattle v Stockton Waterworks16 economic losses arising out of actual physical damage to property was held to be recoverable, while purely economic losses which were not connected to actual physical damage were not held to be recoverable. The basis for this distinction made by the Court lay in the fact that the physical damages constituted actual damages that could be demonstrated, while purely economic losses are often projected and may or may not accrue in reality. This is the case with the losses in profit which Burton claims. He projects that he would have made a profit of 50,000 pounds, however there is no guarantee that with the vagaries of the business environment, he would in fact have made such a profit. The Court is therefore required in such an instance to speculate, and it has not been willing to do so on the basis that it may not be fair to the other party. Applying this to the case of the purely economic damages which both Abi and Burton are seeking, it may be inferred that the losses of 50,000 pounds in profit which Burton is claiming may not be granted by the Court because it is a purely economic loss, which cannot be shown to be directly related to the physical damage resulting from the flood. It is an amount that is being speculated upon by Burton, which cannot be conclusively proved, therefore the Court is unlikely to hold the Hanby Council liable. However in the case of Abi, the economic damages she is claiming are related to the physical damages caused by the flood. Her house was flooded and she had to be in the hospital for a week, as a result of which flooding damage could conceivably have been more extensive. In her case, the Court may look into the matter more closely and try to determine how much damage actually resulted from the flooding and whether such physical damage in fact, requires extensive renovation of Abi’s house. The Court may require Abi to furnish proof to demonstrate that extensive renovation s really necessary and that a lower degree of repairs will not suffice to repair the flood damage. It must be noted that if the Court grants damages for renovations against liability for negligence, then the Council will also have to pay for the alternate accommodation which Abi has arranged until her house is habitable again. On the basis of the above, the following conclusions may be reached: In the case of the repairs required to both Abi and Burton’s premises, the Court is likely to find the Hanby Council liable for negligence, since its failure to repair the flood barrier in time was the cause of the flooding and consequent damages. The Court may hold that there has been a breach of the Council’s duty of care to its residents, through an omission in the performance of its duty. The proximity rule can be established, since Abi and Burton are residents of the Council, similarly the forseeability of the flood can also be established, since flooding occurred once before and the Council has already been intimated to repair the flood gates. In this instance therefore, the Court may deem it just and reasonable to impose a duty of care on the defendant Hanby Council and require that it compensate Abi and Burton for repairs to their homes. Where Abi’s injury is concerned, the Court’s proclivity to award claims in negligence where such injuries have been suffered appear to suggest that Hanby Council may be held liable. Although the injuries were not caused directly by the Council, Abi may be able to establish that there was a sufficient degree of contribution by the Council to her injuries. As a result, the Council may be liable for her hospital stay expenses. The purely economic losses Burton is claiming to have sustained in the form of lost profits of 50,000 pounds is unlikely to be granted by the Courts, because of the general precedent existing whereby purely economic losses are not compensated. In the case of economic recoveries Abi is seeking from the Council for renovation of her property, the Court could decide either way. It appears likely that the Court may require Abi to prove that the renovation is actually necessary and to show causation, i.e, that there is such a need for renovation that has arisen due to the damages caused by the flood. Since such renovations fall into the category of purely economic losses, Abi will have to prove that they are directly linked to the physical damage. On this basis therefore, Hanby Council may be held liable for repairs to Abi’s and Burton’s property. It may also be held liable for injuries caused to Abi and her hospital stay. Where the renovations to her property are concerned, Hanby Council may be liable provided Abi can prove such renovation is necessitated by the flood. If she can successfully prove this, the Council may also have to pay for her alternative accommodation. But if Abi does not prove this, the Council will not be liable for either. It is also unlikely that the Court will hold the Council liable to compensate Burton the 50,000 pounds of losses he is claiming. Bibliography * Fulbrook, J, 2005. “Outdoor Activities, Negligence and the Law”, Aldershot * Holbrook, Jon, 2007. “The sliding snail”, 157 New Law Journal 168 Cases cited: * Barrett v Ministry of Defence (1995) 1 WLR 1217 * Blyth v Birmingham Waterworks Co (1865) 11 Exch 781 * Caparo Industries plc v Dickman (1990) 2 AC 605 * Cattle v Stockton Waterworks (1875) LR 10 QB 453 * Dominion Natural gas v Collins and Perkins (1909) AC 640 * Donaghue v Stevenson (1932) AC 562 * Hill v CC of Yorkshire (1988) 2 All ER 238 * Spowart v Nottinghamshire cc, Sheffield County Court, 23 June, 2006 Unreported * Wagner v International Railway (1921) 133 NE 436 * Wilsher v Essex health Authority (1986) 3 All ER 801 * X (Minors) v Bedfordshire CC (1995) 3 All ER 353 Read More