Negligence is the most important tort and rises many claims annually as it affects many aspects of life. Negligence has arisen in Bob’s circumstances as he received injuries due to failure of taking care required by law. The injuries to Bob were caused due to the following circumstances:
- Bob was not wearing a hard hat otherwise his injuries would have been far less serious
- The regulations were complied with by Bob and mostly by Everlasting Estates
- Hard hats made available to employees not supervised to use them by Everlasting Estates
The above can affect the company’s liability more than Bob’s liability. This is because making hard hats available is not the same as wearing them. Everlasting Estates did not persuade employees to wear hard hats for their safety. The construction regulations insist of wearing hard hats to prevent any accidents occurring. Bob should have complied with the rules using his common sense for his own protection although the company made hard hats available.
In order for Everlasting Estates and Bob to succeed in an action, the following points must be proven:
- The employer must provide a safe system of work
- The plaintiff has suffered damage in consequences
- The defendant (Bill Speed) owing Bob a legal duty of care
- The defendant (Bill Speed) was in breach of duty
- The employer must provide and force the use of safety equipment
There are specific situations where negligence is recognized. As seen in the ‘British Road Services Ltd. V Arthur V. Crutchley & Co. Ltd.’ Case. In this case, a night-watchman negligently failed to make a fourth inspection tour. Whisky was stolen after the third inspection tour but before the fourth inspection was due. British Road Services accused the defendants of negligence. The court held that the defendants’ negligence had not caused the damages. Even had the night-watchman made the fourth inspection the whisky would still have been stolen.
The Donoghue V Stevenson (1932) case also relates to Bob’s situation where the employer owing duty to employees to their safety of work but mostly implies to Charles case.
In Bob’s case, Bob was not provided with a safe system of work, which he was entitled to. The employers’ responsibility was to provide a safe system of work for all employees under the common law duties as well complying with the Health & Safety at Work regulations. The Health & Safety at Work Act 1974 was complied with by Everlasting Estates due to not supervising employees, especially Bob who was injured with the use of hard hats. The employers’ responsibility is to employ competent staff, train staff with Health & Safety issues and the technique to use working equipment safely and assuring the supervision of wearing hard hats. The important fact is that all warnings and regulations should have been aware to all employees by the employer before employing employees. The following case shows the result from the situation above.
In the ‘Hudson & Ridge Co. Ltd. (1957)’ case, the court held the employer liable, as the culprit repeatedly made a nuisance of himself with his practical jokes and no actions were taken in order to check him.
Vicarious Liability is where the employer is responsible for acts done by an employee in the course of employment relationship. In this case, the employer of Everlasting Estates is held responsible for Bill Speed’s negligence in injuring Bob by carelessly reversing the lorry. Bill owes duty of care and is in breach of duty for injuring Bob. In this case the employer of Everlasting Estates might not held responsible for Bill’s actions due to the employer may not have been aware that Bill was a careless driver and that neither aware that something was likely to happen. The following cases relate to the vicarious liability of the problem explained above.
- Hedley Byrne & Co. Ltd. V Heller and Partners Ltd. (1964)
- Yianni V edwin Ewans & Sons (1982)
- Ross V Caunters (1979)
- Smith V Eric S Bush (1989) House of Lords
In this case, ‘Hedley Byrne & co. Ltd. V Heller and Partners Ltd. (1964)’, the appellants were advertising agents and the respondents were merchant bankers. The appellants had a client called Easipower Ltd., customers of the respondents. Easipower asked the respondents for a reference as to the credit-worthiness of Easipower. Hedley Byrne extended the credit to Easipower Ltd., when Easipower went into liquidation, making the appellants a loss of over £17,000 on the advertising contracts. The appellants sued the respondents for the loss and were liable in negligence.
Res ispa Liquitur means the thing or the facts speak for themselves. This rule will be argued by the plaintiff where he believes that the only explanation for the incident occurring in the defendant’s negligence. Res ispa Liquitur relates to Bob’s situation as Bob’s explanation will be needed for the explanation for the incident against Bill Speed. The Byrne V Broadle (1863) case relates to Res ispa Liquitur.
In this ‘Byrne V Broadle (1863)’ case stated the plaintiff brought an action in negligence alleging that as he was walking past the defendant’s shop, a barrel of flour fell from a window above the shop and injured him. The defendant submitted that there was no evidence of negligence to go to the jury. The occurrence was of itself evidence of negligence quite sufficient to entitle the jury to find for the plaintiff, even in the absence of an explanation by the defendant.
Consent means voluntary assumption of risk. In Bob’s situation, there is no case of consent due to Bob did not voluntarily consent to harm himself or to cause the injury and claim for damages caused.
There is strong case of contributory negligence in Bob’s situation. This is due to although careless driving by Bill caused his injuries, but Bob was not wearing a hard hat, which in evidence states that his injuries would have been far less serious if he was wearing a hard hat. Although, from Bill’s careless driving, he may not have been aware that Bob was behind the lorry, but this cannot be proven until someone witnessed the accident. This is shown in the case below.
In this case of ‘Davies V Mann (1842)’, a donkey was tethered in the middle of the road. A man came along the road in a pony and trap and hit the donkey. Both parties were negligent. However, it was decided that the person who was responsible was the one who could have avoided the accident last.
The recent development of the contributory negligence is called Law Reform (Contributory Negligence) Act 1945, Section 1, where only one person can be considered at fault, either the plaintiff or the defendant. Where the defendant established contributory negligence, it was complete defence to the plaintiff’s action. The following case involves the recent development contributory negligence.
In this case of ‘Davies V Swan Motor Co. (Swansea) Ltd.’, P was injured while riding on the back of a dusty lorry in an accident caused by the combined negligence of the driver of a bus and a lorry. Liability was apportioned among the two defendants, the employers of the lorry driver and the bus driver, and it was found that the plaintiff’s own negligence contributed to his injury.
Findings – Problem 2
Charles employed by Everlasting Estates carrying out welding work, suffers from an eye injury whilst using protective goggles which were defective.
Findings – Solution 2
This case states that Charles suffered from an eye injury by the defective goggles. The employer checking for any defects or testing the goggles could have prevented the injury.
Again there is a form of negligence caused by the employer of Everlasting Estates Ltd. Negligence has arisen to Charles for damaging his eyes due to failure in taking care required by the law.
In order for Charles to succeed in an action, the following things must be proven:
- The defendant owed him a legal duty of care
- The defendant was in breach of the duty
- The plaintiff has suffered damage in consequences
The specific situation where a duty of care is long recognized. As seen in the ‘Donoghue V Stevenson (1932)’ case, the employer owes duty to employees for their safety at work.
In the Donoghue V Stevenson (1932) case, a man bought his girlfriend some ginger beer, which contained decomposed remains of a snail. She suffered from shock and severe gastro-enteritis and as a result she sued the manufacturer for negligence.
In Charles case, the incident, which resulted in him receiving eye injuries, is due to the act of negligence. This is because Everlasting EstatesLtd. failed to provide effective protective goggles for the plaintiff in order to reduce the risk of injury, as it is required by the construction regulation. The plaintiff can claim against Everlasting Estates on the grounds of a breach of duty.
As stated in the common law it has been established that an employer owes duty of care towards his employees and Charles is an employee at Everlasting Estates Ltd. It is also the employer’s duty to provide competent staff, safe equipment and by common law they also have the duty to provide special instructions and/or warnings to all employees to use the safety equipment provided.
As a result of the defendant’s breach of duty of care, the plaintiffs must be able to prove that they have suffered loss. This includes damage to property, personal injury and under some circumstances, financial loss. Therefore looking at the fact that Jim received personal injuries it could against the company. This is seen in the following case.
Woods V Durable Suites Ltd. (1953), barrier cream had been made conveniently available as a safe guard against dermatitis for workers using synthetic glue. Instructions had been given that the cream was to be used but there was no compulsion. The plaintiff’s action failed since he was an experienced worker and it was held that the safety measures were reasonable and adequate.
Another aspect of the employer’s liability would be the general principles of negligence and contributory negligence which comes into action when injuries are suffered at work, this consists of a large number of actions.
In the ‘Cork V Kirby Mc Clean Ltd (1953)’case, the plaintiff suffered injury partly because of a fall due to an epileptic fit. The damages were reduced by half for his contributory negligence in not informing the employer that he suffered from epilepsy.
The above case states that contributory negligence was caused partly by the plaintiff but in Charles case, the contributory negligence was caused by Everlasting Estates due to not providing safety apparatus.The court underlined the fact that if there was any sort of injuries, then there is a likely chances that the plaintiff must be awarded damages.
As mentioned before, the employer owes a duty of care to all his employees and also to make sure that the environment in which they work is a safe system of work. As seen in the above case, the employer has the obligation to provide reasonably competent staff, safe system of work.
Another relevant case would be Bolton V Stone (1951). In this case, Miss Stone was standing on the highway outside her house, when she suffered severe injuries as she was struck by a cricket ball, which was hit by a batsman from the grounds of Cheetham Cricket Club. Miss Stone sued the committee and members of the club on the grounds of negligence and nuisance. The court decided that in the circumstances the cricket club had taken reasonable care and was not liable.
In Charles case he suffered from eye injury by defective goggles. Charles can sue Everlasting Estates under the Employer’s Defective Equipment Liability Act 1966. Although the employer did not know that the goggles were defective, but the equipment was provided by the employer, so the employer is still responsible for the damages caused to the plaintiff. The manufacturer can be sued by Everlasting Estates for producing and providing defective goggles. The manufacturer can excluded for breach of contract under the Supply of Goods Act and Unfair Contract Terms Act 1997 – reasonableness.
This can be held against Everlasting Estates Ltd., as it is their duty to provide their employees with appropriate materials for the type of work, which they are carrying out.
Recommendations
The following recommendations should be taken into account after summarizing the two situations caused.
- Train all employees
- Supervise all employees at work and persuade to wear safety equipment, use safety apparatus and provide a safe system of work.
- Ensure that no drivers are driving vehicles carelessly.
- Train staff to use the safety equipment and apparatus accurately
- Ensure that the employer provides a safe system of work.
- Test all equipment from the manufacturer before buying it.
- Employee acting negligently or causing tort of negligence to be resigned.
- Provide good experience of work to all employees.
Conclusion
However, if Charles did not wear protective goggles, therefore the injuries he perceived are an act of negligence by himself.
The Occupier s Liability Act 1957 clearly states that visitors are owed a duty of care, section 1 (2). Therefore it was up to Everlasting Estates to provide sufficient care for their staff. On the other hand, the defense can argue the case, as the plaintiff is partly to blame for the injuries, this is if Charles did not wear protective goggles Although, this would increase the eye injury more than before for which Everlasting Estates would not be held responsible entirely. It would have reduced the amount of injury caused. This comes under section 1 (1) of the law reform (Contributory Negligence) Act 1945.
Another related case, would be Wakelin V London & South Western Railway Co (1886). This case underlines that a difficult decision making process. Therefore it can be difficult to point out who is in the wrong. When all elements of negligence have been successfully established by the plaintiff, but in some way he/she has also been involved in contributory to his injuries by his own negligence, then the defendant can raise the defenses of contributory negligence.
In the case of Charles, it is fairly clear that the incident did have some contribution of his own, if he did not wear the protective goggles.
In the case of Bob, Bob would be able to claim for the damages but would be reduced according to the age of the employee and also because Bob was partly to be blamed (contributory negligence) for not wearing a hard hat.
Bibliography
Business Law 7th Edition
Marsh & Soulsby 1998
Stanley Thornes Publisher
Business Law 2nd Edition
Helen J. Bond & Peter Kay 1995
Blackstone Press Ltd.
Lecture notes and handouts.