Jones-Smith as Guest Speaker - Article Example

?Word Count: 2,555 Summary of the Case: Jones Smith was invited as guest speaker for the New Year’s Eve festival in London by the Mayor. Whilst the host – that is the mayor and his officers-on-duty have a duty of care to Smith as guest for the event, they acted right by cordoning off a limited area of the park where Smith will be giving his speech to a large amount of people as a safety hazard. However, the crowd surged from behind and crushed the seats against the barrier as the crowd clamber over each other in an effort to escape the surge. Due to the cordoned the area around the stage, the crowd had no route of escape. Smith saw his aunt knocked to the ground as she tried to escape the panicking crowd. In addition, the police refused to allow the crowd to leave the park. As an instinct, Smith rushed over to help her and attempted to climb over the safety barrier but it collapsed and was pulled back by the police. His aunt submerged in the wrecked seating and the surging crowd which killed her. Smith was left on a state of shock at what he has witnessed. Meanwhile, Paula and cousin Sona saw the accident on television and have also been in a state of shock. Aunty Anita had been the sole provider for 7-year old Sona. Smith was soon established to be seriously injured when he was held back by the police. He was likely to be paralysed from the waist down and will not be able to perform in public again. In addition, je will also require help to dress and feed himself and will be in considerable pain. He will also not be able to carry on with his hobby, horse-back riding. His doctors cannot determine whether his condition will deteriorate in the future. This paper will determine what Jones Smith, his aunty Paula and cousin Sona can claim for. Discussion Duty of care under the English tort law applies on the case of Amersmith’s client Jones Smith. Tort law covers civil wrong doings and is a civil action taken by one citizen against another, in this instance, Jones Smith against the Mayor of London or the mayor’s enforcing officers. The duty of care ensures that Jones Smith as guest speaker for the New Year’s Eve festival organised by Mayor of London is owed a duty of care by the event host and implementing or assigned officers. The host or the officers involved should not have allowed Jones Smith to suffer any unreasonable harm or loss –physical, emotional or even financial. Jones Smith suffered several losses and damages: disability, loss of life of his aunt Anita, loss of ability to conduct economic and personal activities, as well as the loss of Anita’s relatives since Anita is a sole provider of seven-year old Sona. In addition, with the event shown live on television and viewed by Anita’s close relatives Sona and Paula, defendants may also be liable for the state of shock, or psychiatric injury. The tort of negligence may be applicable for Jones Smith’s case. This means that the breach of duty must be established against the Mayor or his officers-on-duty during the event that Jones Smith was about to deliver his speech and throughout the duration of the event where Jones Smith was expected to grace the event. The tort of negligence originated from the case of Donoghue (or McAlister) v Stevenson ruled in 1932 (UK Law, 2010). Lord Atkin stated that: The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour (UK Law, 2010, P 34). Lord Atkin’s speech became the cornerstone for the neighbour principle on the duty of care. This requires individuals to be reasonable careful about their actions and omissions in order to avoid harming others. Under the case of Anns v Merton London Borough Council, a prima facie duty of care was established by Lord Wilberforce where there is close and sufficient proximity or neighbourhood between defendant and the appellant to establish direct relation between carelessness of the former to the damage on the latter; and that there has been no relevant considerations that limit the cope of the duty (Anns v Merton London Borough Council [1978] AC 728). In the Caparo Industries Plc v Dickman [1990] 2 A.C. 605, the House of Lords decisively emphasised for the need of a sufficient degree of “proximity” between the claimant and the defendant and the controlling principle that the imposition of a duty of care should be “fair, just and reasonable” in all the circumstances. This becomes applicable with Jones Smith, the Mayor or his police officers who were on duty during the New Year’s Eve festival. As guest, Smith and his guests were to be provided sufficient safety and security against revelling crowds and possible, foreseeable harm. With regards to tort cases against elected or government officials or employees, the case of Glencar Exploration plc v. Mayo County Council [2001] IESC 64; [2002] 1 ILRM 481 (19 July 2001) is recalled. The case deals with private exploration entities which were granted prospecting licences by the Minister for Energy for the purpose of exploring for gold in an area south of Westport in County Mayo until February 1992 when the county development plan adopted the mining ban. The Appellant applied for and were granted leave to institute the present proceedings by way of judicial review in the High Court, in which they claimed: (1) Declarations that the respondents were not empowered by the relevant legislation to include the mining ban in the County Mayo Development Plan and that it was ultra rues the legislation, unreasonable and contrary to constitutional and/or natural justice; (2) An order of certiorari quashing so much of the development plan as included the mining ban; and (3) Damages for negligence and breach of duty, including breach of statutory duty (Bailii, 2011, P 7). The High Court Judgment of Kelly J dealt with the various legal headings under which the applicants’ claim for damages for the tort of misfeasance in public office. The Judge was satisfied that the applicants had not established the elected members of the respondent were actuated by malice against the applicants or that what were done amounted to an abuse of office. The elected members were seen to have responded in good faith to the pressures brought to bear on them by the electorate. The judge saw they had acted unlawfully but as to the claim based on a breach of statutory duty, Kelly J said that he was of the view that the duties imposed by the relevant sections of the 1963 Act and the Local Government Act 1991 were for the benefit of the public or the government and that no action for damages lay at the suit of individual member of the public in respect of the alleged breach of duties. As for the claim based on legitimate expectations, the judge found that there was indeed a frustration of legitimate expectations on the actions of the respondents but damages would not be available as a remedy due to the absence of a contractual relationship or a relationship similar thereto, between the parties. On the claim of negligence, Judge Kelly pointed out that: Whatever may have been the motives of the elected members, they set about achieving their goal in a way which, in my view, no reasonable local authority in receipt of the advice which they obtained would have done. It is not the function of elected representatives to slavishly give effect to their constituents' demands come what may. They must exercise a degree of judgment in any particular case (Crown Copyright, 2010, P 29). Indeed, the respondents had acted negligently in adopting the mining ban, but they were not in breach of any duty of care which they owed to the applicants and that, accordingly, no actionable claim for damages for negligence had been established. Basing on the above case, it is very possible that the Mayor or his police officers may escape liability on any negligence damages claim from Smith or Anita’s relatives. However, other cases may be referred such as the recent case of Bhamra v Dubb (t/a Lucky Caterers). In this instance, one Kuldip Singh Bhamra attended as a guest a wedding at the Ramgarhia Sikh Temple, Forest Gate in August 2003 where Kuldip Singh Bhamra died of anaphylaxic reaction to a food ras malai which contained egg. Egg was prohibited amongst the Sikh together with other foods. Judge Charles Harris Q.C. found in favour of Mrs. Bhamra the appellant, on her claim in negligence and entered judgment for her in the agreed sum of ?415,000. The Fatal Accidents Act 1976 This legislation provides a right of action for wrongful act causing death or action for damages. Dependants are the beneficiaries of this action and beneficiaries include husband, wife, former wife or husband, or any person living with the deceased (SS 1-4), specifically, Sona, who was dependent of Aunt Anita. Under the Act, provision on bereavement requires that “Subject to subsection (5) below, the sum to be awarded as damages under this section shall be [F1?10,000],” (The National Archives, 2010, P 3). Consequently, the persons entitled to bring the action is the executor, administrator, or may be brought by and in the name of all or any persons for whose benefit an executor or administrator could have brought it. Dependants may also file for funeral expenses and money paid into court to satisfy a cause of action. In the assessment of damages, it was pointed out that “benefits which have accrued or may accrue to any person from his estate or otherwise as a result of his death shall be disregarded,” (The National Archives, 2010, P 4). As emphasised in the decision made in Bhamra v Dubb (t/a Lucky Caterers) Lord Bridge of Harwich said: “What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of "proximity" or "neighbourhood" and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other,” (Crown Copyright, 2011, P 13). In the same case, Lord Bridge of Harwich added: “It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless,” (Crown Copyright, 2011, P 14). Lord Oliver of Aylmerton also seconded the opinion, pointing out that: “It has to be borne in mind that the duty of care is inseparable from the damage which the plaintiff claims to have suffered from its breach. It is not a duty to take care in the abstract but a duty to avoid causing to the particular plaintiff damage of the particular kind which he has in fact sustained,” (Crown Copyright, 2011, P 15). In the judgment of Brennan J. in the case for in Sutherland Shire Council v. Heyman (1985) 60 A.L.R. 1: The corollary is that a postulated duty of care must be stated in reference to the kind of damage that a plaintiff has suffered and in reference to the plaintiff or a class of which the plaintiff is a member. . . . It is impermissible to postulate a duty of care to avoid one kind of damage – say, personal injury – and, finding the defendant guilty of failing to discharge that duty, to hold him liable for the damage actually suffered that is of another independent kind – say, economic loss. Not only may the respective duties differ in what is required to discharge them; the duties may be owed to different persons or classes of persons. That is not to say that a plaintiff who suffers damage of some kind will succeed or fail in an action to recover damages according to his classification of the damage he suffered. The question is always whether the defendant was under a duty to avoid or prevent that damage, but the actual nature of the damage suffered is relevant to the existence and extent of any duty to avoid or prevent it, (Crown Copyright b, 2010, P 18) In Horton v. Colwyn Bay (1908) 1 K.B. 327, Lord Justice Buckley stated: “.....if an actionable wrong has been done to the claimant, he is entitled to recover all the damages resulting from that wrong, and none the less because he would have had no right of action for some part of that damage if the wrong had not also created a damage which was also actionable,” (Crown Copyright b, 2010, P 12). In the case of Glencar Exploration plc v. Mayo County Council, the judge decided that the extent of the damages to which the Appellant would have been entitled were to be assessed as of the date of the mining ban and at the most, to one-tenth of the expenditure they had actually incurred, which is ?193,826.40 based on their claimed expenditures and investments. Conclusion: In consideration of discussion, economic, physical and emotional damages may be claimed for negligence by Jones Smith against the Mayor or his officers-on-duty during which the accident that caused his aunt’s life and almost his own life occurred. Due to the paralysis caused by the accident, he can file for the said damages to be determined depending on his actual income as a very popular actor or his potential earnings up to the time when his doctors will determine his disability to be present. In addition, Sona and Paula may claim for damages for bereavement as well as damages for the loss of Sona’s source of support until such time that Sona would have becomes economically independent from the deceased. Emotional trauma or shock is a contentious claim that Smith, Sona and Paula may file against the mayor or his officers-on-duty. Although this may be filed separately for claims of negligence, there had been limited cases that were successful. Smith et al should be able to establish that there is a close relation between them and the respondents of the case as invited guest of the event where Smith and his aunt were present. He should also be able to establish the relevance of the presence of his aunt as guest speaker of the event. In addition, he should be able to establish the negligent acts of the officers-on-duty and establish the direct cause of his accident and his Aunt Anita’s death due to the negligent actions of the officers-on-duty. Aside from the ?10,000 bereavement claim, other damages are claims for his inability to perform (economic) and move for personal care as well as claims for Sona’s support as an independent of Aunt Anita. Reference: The National Archives. 2010. Fatal Accidents Act 1976. Accessed from http://www.legislation.gov.uk/ukpga/1976/30/section/1A UK Law online. 2010. Donoghue (or McAlister) v Stevenson, [1932] All ER Rep 1; [1932] AC 562; House of Lords. Accessed from http://www.leeds.ac.uk/law/hamlyn/donoghue.htm Crown Copright. 2011. Bhamra v Dubb (t/a Lucky Caterers) [2010] EWCA Civ 13 (20 January 2010) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/13.html Crown Copyright. 2010. Glencar Exploration plc v. Mayo County Council [2001] IESC 64; [2002] 1 ILRM 481 (19 July 2001). Accessed from URL: http://www.bailii.org/ie/cases/IESC/2001/64.html Crown Copyright b. 2010. Spartan Steel and Alloys Ltd. v Martin & Co (Contractors) Ltd. [1972] EWCA Civ 3 (22 June 1972). Accessed from: http://www.bailii.org/ew/cases/EWCA/Civ/1972/3.html Read More