Firstly was the damage foreseeable?
Adam knew that the substances and equipment he was using on the garden were dangerous and had already verbally warned Callum to keep away from the area to prevent injury. Adam then left the treated area unattended and open for anybody to walk on. Which resulted in Callum being severely burned by the chemicals. The question that the law would ask is did the defendant use common sense? I feel the answer to this question is no because he should have taken more severe actions to make sure that the safety of the child and others was maintained, For example he could have cornered the appropriate area off or informed the child’s parents to keep Callum away from the area concerned. I think when taking this into account the damage was foreseeable.
Next was there a sufficient degree of proximity?
The answer to this is again yes as the two parties are adequately connected to the extent that the defendant’s actions or omissions would attract liability for damages to the claimant.
Finally is it fair and just to create a duty of care between the claimant and the defendant?
This point could be argued because Callum’s parents may be to blame as they should have prevented there child from going into the garden however Adam realised the consequences and still didn’t act upon them to prevent an accident from occurring. I think that Callum’s parents should have acted more to prevent an accident however I still think it is fair and just to create a duty of care between Callum and Adam.
I think from looking at the three-part test that there is sufficient evidence to create an appropriate duty of care in the given situation.
Assuming that Adam was found to owe Callum a duty of care, discuss whether or not Adam was in breach of that duty of care.
When looking at breach of duty of care the law uses an objective test to determine whether the defendant exercised reasonable care. This is a measure of the degree of care a reasonable man would have exercised in the same situation. The reasonable man is expected to have ordinary levels of skill and knowledge. Other points that are looked at are degree of risk; in some cases the risk of injury is so small that judges give some flexibility. Seriousness of potential harm, if the potential harm or injury is very serious, individuals or companies must exercise considerable care to avoid liability for accidents. Cost of precaution, times when trying to completely solve a problem would result in costs outweighing any potential benefits.
I think in the case given that Adam would be liable for breach of duty of care as the seriousness of potential harm was a high risk and there was a suitable degree of risk.
To prove that there was a breach of duty of care two criteria must be met,
- The accident that occurred must normally have a negligence element to it
- The circumstances must directly point to negligence on the part of the defendant.
It is the task of the claimant to prove that a breach of duty of care has occurred and they must prove this ‘beyond the balance of probabilities’.
Another point that has to be taken into account is that if the person is a professional i.e. if Adam was a professional gardener, then they owe their clients a duty of care automatically. However if the person is classed as a learner then it is different i.e. if Adam was just helping his neighbour by doing his garden but it wasn’t his profession, a complication arises when the courts are faced with a person who is a learner, However in most cases the learner is treated the same as a qualified person.
In the case we are given I don’t think either of these points occur as it doesn’t state that Adam was a professional gardener it just says he is helping a neighbour.
I think when looking at the information above that Adam is in breach of a duty of care owed to Callum. As he noticed the risk and the potential harm which could be caused but still didn’t prevent the consequences of his actions.
To prove the damage was caused by the defendant the ‘but for’ test is used. The question asked is - But for the claimant’s negligence would the damage have been caused?
In the case given there was no other cause of damage and there wasn’t a break in the chain of causation. Leaving the injuries to the fault of the defendant.
I think that from the information given that Adam is in breach of his duty of care.
Callum could either recover damages for his injuries, or the court could rule that his injuries were too remote. Explain the rules on remoteness of damages and apply those rules to the facts of this case.
Remoteness is when the court decides if the victim’s damages were reasonably foreseeable.
In some cases series of events can be so obscure and unpredictable that they would be seen to unconventional to be reasonably foreseeable.
The case of Adam and Callum could be linked to that of Hughes v Lord Advocate (1963) in this case workmen left an open manhole unattended which was lit with paraffin lamps a ten-year-old boy who was playing near by knocked a lamp into the manhole causing an explosion in which he was seriously burned. The court took the position that it was foreseeable that the lamps might burn a child, even if the unusual sequence of events, which actually caused the burns, could not have been easily predicted. Hughes was awarded damages.
When relating it to the case given it is very similar.
Adam left the treated ground unattended and Callum went out to play. Callum a six-year-old boy fell into the treated area causing him to develop severe burns on his hand.
The case is so similar that the results would more that likely be the same. I think that the damages were more than reasonably foreseeable.
