Civil Legislation and the Law Issues - Essay Example

Civil Legislation and the Law Case Study: Donoghue v. Stevenson Question 1) Could Mrs. Donoghue sue the cafe-owner under the law of contract?Yes, or No? Give your reasons clearly. Yes, she could sue the café-owner under the English law of Contract. It is reasonable to believe that manufacturers of goods that are used for consumption have duties and responsibilities towards their customers, ensuring the highest degree of safe usage, whether or not, there exists a contractual relationship between the manufacturer of the said product and the said consumer. A manufacturer needs to provide a degree of care, that an man of ordinary prudence need to have exercised under such circumstances. This is specially so, in cases of products whose inner contents cannot be visibly from the outside, and there are no ways and means by which it is possibly for consumers to ascertain the contents of the bottle by viewing it externally. The facts of this case revolved on the perceived lack of care, or tort of negligence, displayed by the manufacture of ginger beer, in that its contents could hold toxic or health hazards, emanating due to issues arising due to lack of care and ordinary diligence, which had resulted in such situations. In this case, the ginger beer drunk by the plaintiff contained the remnants of a decomposed snail, which precipitated distress and illness in the applicant, Mrs. Donoghue and caused her significant health issues which necessitated medical treatment. Subsequently she brought action on the grounds that the manufacture had been liable for “damage caused by such neglect…” (Donoghue (or M’ Alister) v Stevenson: House of Lords [1932] All ER Rep 1). The crux of the issue as elaborated by the distinguished judge lay in the fact that, having known that the contents of the bottle would be used for human consumption, was it not incumbent on the part of the manufacturers, to ensure that the contents were free from contaminants that could pose serious threats to human life and health. (2) Therefore, what legal action could Mrs. Donoghue take? The area of Tort of Negligence could be invoked in this case. She could bring up a suit for damages for injury caused to her due to consumption of contaminated ginger beer, due to apparent negligence on the part of the manufacturer to ensure that the consumable articles are free from harmful ingredients. Lord Atkins, in his rule on the Donoghue case rules It is seen that in this decided case, the aggrieved applicant had claimed “£500 as damages for injuries sustained.” (Donoghue v Stevenson: Case Report. 2008). This was what she claimed as damages for tort negligence not amounting to Fraud. This is because the case does not invoke any aspect of fraud or misrepresentation. The manufacturers, Stevenson, did not intentionally cause the snail to be placed in the bottle. It is believed that the place where the cleaning of bottles and refilling was conducted, hosted snails and other reptiles. It is quite possible that a snail may have lodged itself in the bottle. Subsequently, the bottle was filled and sealed by agents of the defendant, without inspecting whether the bottle was clean and contained any thing or not. Thus, basic negligence could be attributed to defendants, and his agents/servants, in not ensuring that the cleaned bottles awaiting refilling was clean of any harmful substances and is worthy of human consumption. It is outside the scope of the courts to discuss the rationale of checking each and every bottle by a large manufacturer thoroughly, especially when the containers are of opaque materials, and even a detailed view could not possibly surmise the contents of the bottle. (3) Explain the importance of the decision taken by the House of Lords in Donoghue v. Stevenson (1932) (250 words) The decision in the Donoghue v. Stevenson (1932) has been as seminal as it has been a landmark decision. It changes the perception that English and Scots law courts held for individual redressals under this kind of offence. As Lord Thankerton, one of the jury members observed “The present case is that of a manufacturer and a consumer, with whom he has no contractual relation, of an article which the manufacturer did not know to be dangerous, and, unless the consumer can establish a special relationship with the manufacturer, it is clear, in my opinion, that neither the law of Scotland nor the law of England will hold that the manufacturer has any duty towards the consumer to exercise diligence.” (Donoghue v Stevenson: Page 603 Lord Thankerton. 1998). During earlier times, the aspect of relationships in commercial transactions formed the bulwark of any issue. Thus, if the manufacturer supplied goods to the retailer, it was the latter that could bring action against any breach, or tort on the part of the manufacturer. But Donoghue v. Stevenson (1932) case has changed all that, and it is now possible, depending upon the discretion of the Courts, for persons outside the contract to file suits for damages against defendants for breaches or infringements. While delivering the verdict in this case, Lord Atkins also referred to Bates v. Batey Co., Ld. ([1913] 3 K. B. 351 case and observed, that manufactures are aware of the needs their products serve and therefore they need to take maximum care and caution to ensure that their products do not suffer from any inherent manufacturing defect, either in terms of toxic contents, harmful to consumer or “other noxious thing.” (Donoghue v Stevenson: Page 595 Lord Thankerton. 1998). Question II 1. Can Tom sue Cedric for the injury under the 1957 Act? The law that is relevant in this case study relates to Occupiers’ Liability Act 1957 in the case of non-trespassers. In the case of trespassers it is the Occupiers’ Liability Act 1964. Although it is seen that Cedric is the owner of the land, it is seen that the present, part of the control of the estate vests with electrical contractors, who have been assigned responsibility of rewiring part of the structure. To the extent, the control of he estate lies with the contractors, they could be said to be responsible for the injuries that occur in their domain, which shall be presently seen in depth. Under Section 2 Sub section 4(a) of the Occupiers Liability Act 1957, “here damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe.” (Occupiers’ Liability Act 1957 (c.31): Marginal Citations). In other words the occupiers would be free of liability if he had provided warnings that, in all situations, would have rendered the visitor to be safe. In this case however, it is seen that the outside warning was a general disclaimer and could not absolve the owner from all liabilities, especially regarding children, who are more often than not, known to take less care than adults generally do. 2. Can Jerry sue Cedric for the electric shock that he has suffered? How would Cendric argue about this issue? What is the effect of the Private notice sign? No, Jerry cannot sue Cendric for the electric shock that he has suffered. The occupiers, the electrical contractors are in control of the areas needing electrical rewiring. Thus, it was their responsibility to ensure that visitors are safe and well protected in these areas. Under the provisions of Law, liability of an occupier of premises for breach of an Contract obligation or duty towards a person obtaining access to the Act premises for recreational or educational purposes, being liability for loss or damage suffered by reason of the dangerous state of the premises, is not a business liability of the occupier unless granting that person such access for the purposes concerned falls within the business purposes of the occupier.” However, a more important aspect would be in terms of the fact that Jerry had ignored a ‘‘Private-Closed to Visitors Warning Sign posted at the door and has thus become a trespasser, since he has ignored specific warnings not to enter the room. When specific warnings (not general warnings) have been issued regarding the use or non-use, or accessibility to outsiders (not owners or occupiers), they cannot be held liable for any losses or injuries succumbed by trespassers. Here it is seen that the warnings are more of a general nature and not specific since it does not specify the nature of danger present, although the trespasser was made aware of it at a later stage through shock. In this case however the warning makes all the difference and trespassers may not be able to lodge a suit for injuries caused due to their own transgressions. 3. Can Sparks Ltd. be considered as occupiers? The main aspect that determines occupancy is the degree of control that a body may exercise over a said property. It is seen that in this case, a certain degree of control over electrical works vests with the contractors, Sparks limited. Therefore to this extent and in this area, Sparks Limited could be considered as occupiers. The concept of occupancy deals more with the role and responsibilities that accrue along with this nomenclature. In Addie v. Dumbreck [1929] AC 358 House of Lords (HOL) had ruled that an occupier of property was only accountable to a trespassing child who was injured by the occupier deliberately or due to lack of care. In Herrington, their Lordships held that a diverse perspective was suitable in the altered societal and physical milieu since 1929. The Courts set up test of common humanity which involves an examination of whether the occupier has done all that a caring person would have done to protect the safety of the trespasser. (British Railways Board v. Herrington). The board was held legally responsible for injuries to a young old child who had been playing on the railway line. The House of Lords opined that the occupier of the railway premises owed a duty of common humanity to the child. Until this case no duty of care was owed to trespassers. Thus Occupiers Liability Act 1984 lengthened the duty of care to include trespassers. Thus it may be said that in this case, occupiers could have wider practical rights and duties than what is conceptually thought of. 4. Can Cendric be held liable for Jacks injury? The laws relating to occupiers liability takes a wider and broader perspective of acts committed by children, since they are perceived to have less care than adults. Therefore, it is seen that the laws need to take greater consideration of the acts committed by children. In this case, it is seen that the children, Jack and Jenny were in the company of their father, Basil, and therefore the prime responsibility of their care rested on him. However, it is seen that Jack is able to eat the poisoned berries and fall sick. The occupiers were aware of the fact that the place would be frequented by children and there are possibilities that they may try to consume the berries. This would be the thought process of any reasonable occupier of property visited by outsider, especially children. Therefore, it would have been fitting if the berry bushed were cordoned off with wire nettings. There were also no warning signs on the bushes warning the consumers of the ill effects of eating the berries, all this are aspects which the occupiers could have pre-judged and avoided beforehand. The strong aspect would be that children need to be doubly safeguarded against injuries and accidents. Thus it is quite possible that the occupiers would be liable to Jack for lack of care and dereliction of duty in not providing safety measures to ensure that berries are not consumed by children. 5. Can Cendric be held liable for Jennys injury? What will Cendric say about the notice No visitors allowed beyond this point? Will Cendric be able to rely on this warning notice? Prima facie, Cendric may not be held responsible for Jenny’s injury, in that the accident occurred due to the willful volition of the child, who ignored the warning board specifically disallowing people beyond that point. But certain aspects need to be clarified: 1. The Warning board does not warn about the specific type of danger or risk lying ahead 2. The Warning should have mentioned about swans and likely attacks on children 3. It is well known that children being active people would venture in danger areas without knowledge or consent. The occupiers needed to have exercised a greater degree of caution in having the gate locked and secured against trespassers. 4. Whether the degree of protection offered was in commensuration with the risks in this case it may not be so, which is the plausible reason for the injury in that the gate was not secured. 5. It could be said that the occupiers may have not succeeded in exercising reasonably caution in cordoning off the pond to avoid the chances of mishap and accidents. By deliberately ignoring the warning, Jenny has become a trespasser in this case. According to the law, it recognized that it would often be excessively onerous to require occupiers to take measures to protect the safety and health of people who came upon their land without call or consent. They should not generally be able to force duties upon reluctant hosts. In the application of that principle, the Court saw little distinction between a person who comes upon land without permission and one who, having come with permission, does something which (s)he has not been given authorization to do. In both situations, it is seen that the trespasser would be forcing imposing upon the occupier a duty of care which he is not bound to accept or honor. (Judgments-Tomlinson (FC) (Original Respondent and Cross Appellant) v. Congleton Borough Council and Others (Original Appellants and Cross Respondents). 6. Is Jenny a lawful visitor or will she be considered a trespasser when she entered the gate that led to the pond? No, Jenny is not considered a lawful visitor. She would be considered a trespasser when she entered the gate that led to the pond. This is because she has willfully ignored the specific warning signs that dissuade people from entering the protected zone. The aspects of Child trespassers have, for inordinately long, offered to the courts an almost vexing and intractable difficulty. They could only be completely s protected in either of the two ways, In the first case, the parents must be forced regularly to control and supervise the activities of their youthful offspring, or occupiers of premises where they are likely to trespass must be required to take efficient steps to keep them under constant surveillance or else to make their location protected for them, should and if hey happen to trespass their areas. However, it is seen that presently, both these solutions may not be feasible or workable. The first option was possible earlier when wealthy parents were able to supervise their wards, or arrange for suitable chaperoning, but this is dwindling now. “persistent attempts have been made to confer on child trespassers greater rights and to impose on occupiers greater obligations.” (British Railways Board v Herrington. 1972). The onus on occupiers to make suitable safety and security arrangements for the protection of children would be an onerous and expensive economic and financial commitment which may not be productive in the long run. It is seen that such investments may be counter productive if it fails to meet objective criteria for its initiation, seen also in the context of better protection for children and young people. However, it is common knowledge that young people may ignore safety and security warnings and may venture into areas or pursuits which has been expressly prohibited, oblivious of its consequences. In many leading cases, young people have ignored safe practices and have ended up with loss of limbs or senses. Conclusions: Therefore, it is necessary that occupiers liability need to consider a host of factors, direct or indirect that may have material bearing upon specific cases or instances. It would be injudicious to provide blanket laws that cover all scenarios and judges need to consider a case-to –case basis, depending upon merits of individual contexts. It would be in everybody’s interests that laws be enacted and enforced that could protect rights and privileges , while at the same time dictate the roles and responsibilities of occupiers, owners and visitors and guests. Bibliography British Railways Board v Herrington. (1972). [online]. Lawindexpro-case law. Last accessed 07 December 2008 at: http://www.swarb.co.uk/c/hl/1972BRB_Herrington.html British Railways Board v. Herrington. [online]. Last accessed 07 December 2008 at: http://www.safetyphoto.co.uk/subsite/case%20abcd/british_railways_board_v_Herrington.htm Donoghue v Stevenson: Page 595 Lord Thankerton. (1998). [online]. UK Online. Last accessed 07 December 2008 at: http://www.leeds.ac.uk/law/hamlyn/donoghue.htm Donoghue v Stevenson: Page 603 Lord Thankerton. (1998). [online]. UK Online. Last accessed 07 December 2008 at: http://www.leeds.ac.uk/law/hamlyn/donoghue.htm Donoghue v Stevenson: Case Report. (2008). [online]. SCLR. Last accessed 07 December 2008 at: http://www.scottishlawreports.org.uk/resources/dvs/donoghue-v-stevenson-report.html Donoghue (or M’ Alister) v Stevenson: House of Lords [1932] All ER Rep 1. [online]. Last accessed 07 December 2008 at: http://www.peterjepson.com/law/Donoghue_v_Stevenson.htm Judgments-Tomlinson (FC) (Original Respondent and Cross Appellant) v. Congleton Borough Council and Others (Original Appellants and Cross Respondents. [online]. www.parliament.uk. Last accessed 07 December 2008 at: http://www.publications.parliament.uk/pa/ld200203/ldjudgmt/jd030731/tomlin-1.htm Occupiers’ Liability Act 1957 (c.31): Marginal Citations. [online]. Ministry of Justice. Last accessed 07 December 2008 at: http://www.statutelaw.gov.uk/content.aspx?LegType=All+Legislation&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&sortAlpha=0&PageNumber=0&NavFrom=0&parentActiveTextDocId=1159585&ActiveTextDocId=1159588&filesize=11301 Read More