Conclusion:
John can sue local shop for breach the condition that implied by the statue- Sales of Goods Act 1979 in merchantable quality. Local shop can claim the manufacturer for Satisfactory of goods for bad quality of hot-water bottle. John can sue only for the bursting hot-water bottle. Moreover, he can claim the manufacturer based on the tort law. According to this law, he can claim for face injury, and can have compensation for his damages in face. Thus, Joe should claim the manufacturer because it is more advantageous for Joe.
Joe can sue the manufacturer for his injury- badly scalded according to law of tort-negligence.
Claim 2:
Nancy’s case:
Issues:
Explain whether Talbot would be liable for the damage.
Rules:
“An occupier owes a duty of care to all visitors to the premises and must take such precautions as are necessary to make the premises reasonably safe for the purpose for which the visitor is permitted to enter them” (BPP Professional Education, 2004, pg. 129)
Applications:
Talbot, a motor mechanic, spilt some engine oil near the open entrance-way to his workshop. He immediately scrubbed it with detergent, but the surface remained slightly oily. Talbot went to get some sand from the back of the workshop and the phone rang. Not wanting to miss a customer, he returned to answer the call. His back was turned for 30 seconds. Talbot did not take reasonable care to all customers by scrubbing with detergent and went to get some sand but he left to pick up the phone, this turned was about 30 seconds. The floor was still slightly oily and it was easy to customer to slip if they did not see the oil on the floor. According to occupier’s liability, “an occupier owes a duty of care to all visitors to the premises and must take such precautions as are necessary to make the premises reasonably safe for the purpose for which the visitor is permitted to enter them” (BPP Professional Education, 2004, pg. 129). Therefore, Talbot had duty of care to all visitors, including Nancy. He had liability in safety of her and he must take the precautions. However he breached this duty of care to customer by oily floor and failed to give warnings to customers. During that time Nancy, a customer, entered. She slipped and broke her leg. This damage was resulted directly from breaches of Talbot and there was no defense for Talbot to exclude this liability.
Conclusion:
Nancy can sue Talbot for breach the duty of occupier’s liability and strict liability although he took reasonable care. Nancy can claim for damages are breaking her leg. In the next time, Talbot should put the precaution that is enough to enable the visitors to be reasonable safe in the store to exclude his liability. The best way is he closes the shop to avoid customer enter the shop and scrub the oil cleanly.
Nancy’s daughter’s case:
Issues:
Explain whether the Talbot would be liable for the damage.
Rules:
- Nervous shock: “ a person suffering nervous shock may have a claim if they can show that there was a sufficiently close relationship between themselves and the primary victim and they they either saw the accident wither unaided senses or cam upon the ‘immediate aftermath’. (BPP Professional Education, 2004, pg. 151).
- “ claimant may claim compensation for nervous shock caused by the defendant’s negligence act” (BPP Professional Education, 2004, pg 151)
- “An occupier owes a duty of care to all visitors to the premises and must take such precautions as are necessary to make the premises reasonably safe for the purpose for which the visitor is permitted to enter them” (BPP Professional Education, 2004, pg. 129)
Applications:
Nancy’s daughter, who was a very nervous person, was walking behind her mother. Talbot owned the workshop, he had occupier’s liabilities for all visitors, including Nancy and her daughter, so he had duty of care to her. She came very upset when she saw her mother fall because she knew that serious damage could result. Nancy’s daughter suffered nervous shock. This damage was indirectly because of breaches duty of care to visitors. “A person suffering nervous shock may have a claim if they can show that there was a sufficiently close relationship between themselves and the primary victim and they either saw the accident wither unaided senses or cam upon the ‘immediate aftermath’. There was a close relationship between Nancy’s daughter and the primary victim, her mother and she saw the accident in the eye of nervous person as in case McLoughlin vs O’Brien 1982. Therefore, there was damage for Nancy’s daughter, no defense for Talbot.
Conclusion:
In conclusion, Talbot will have liability for any damages suffering from nervous shock and Nancy’s daughter can claim for compensation.
Connor’s case
Issues:
Explain whether Talbot would be liable for the damage for Connor
Rules:
- “An occupier owes a duty of care to all visitors to the premises and must take such precautions as are necessary to make the premises reasonably safe for the purpose for which the visitor is permitted to enter them” (BPP Professional Education, 2004, pg. 129)
- Strict liability: “there also torts which result from breach an absolute duty: the defendant is liable for al damage naturally accruing from escape”. ( BPP Professional Education, 2004, pg. 121)
- The occupier may discharge his duty to visitors as: “by giving warnings where a warning is enough to enable the visitor to be reasonably safe. A visitor who ignores a warning may be consenting to the risk or may be guilty of contributory negligence. However a warning is not a sufficient precaution in some cases.
Application:
Talbot wrote out a sign in a very large bright letters which said that ‘Warning- slippery floor. Do not enter” and fixed it to the sign of the workshop. He took a reasonable care to safety of customer by giving warnings. According to occupier’s liability, he gave a precaution which noticed the customer that the floor was slippery, so he did not have liability for the damages of visitors. Connor, a customer with very poor eyesight, missed the sign, strode in, slipped and broke his leg. The fact that the warning was written in a very large but bright letter, in the side of workshop entrance. It was hard for customer to see, especially poor eyesight people- Connor, so this warning was not enough to enable the visitor to be reasonably safe. Thus, Talbot breached duty of care to customer, this brought damages to Connor of breaking his leg. There were no defenses for Talbot.
Conclusion:
Although Talbot takes a reasonable care to customer, he still has liability in breaching duty of care for safety of customer using strict liability. Talbot should close the shop to scrub it carefully to make sure that the floor is not slippery.
After Connor’s fallen.
Issues:
Explain whether the Talbot would be liable for the damage
Rules:
Novus actus interveniens : “if the sequence of cause and effect includes a new act( called a novus actus interveniens) of a third party or of the claimant, it may terminate the defendant’s liability at that point: further consequences are too remote and he is not required to pay compensation for them” ( BPP Professional Education, 2004, pg.113)
Applications:
Connor screamed loudly after his fall. This caused a customer who was filling his tank at the self-serve pump to spin round involuntarily and sprayed petrol into the eyes of another customer, who ran in shock down the driveway of Talbot’s garage. The driver of Porches who was entering the driveway swung his wheel to avoid the customer and crashed into a brick wall, causing more than £15,000 damage to his car. There was a chain of damages that resulted from Connor’s fallen in the shop. The sequence of cause and effect included a new act: a customer who was filling tank make another customer has eye’s injury, this person made the Porches crash and caused damage more than £15,000. As in the case of Wagon Mound 1961, this was the chain of action resulting from the cause of Talbot’s breach the duty of care with Connor. This resulted damages of Porches and the customer who was hurt in the eye is too remote and was unforeseeable with Talbot.
Conclusion:
Talbot has no liability for damages of the car as well as the customer eyes’ hurt by petrol.
15-year-old girl and 14-year-old-boy
Issues:
Explain whether Talbot would be liable for the damages of 14-year-old boy.
Rules:
- “There is no duty care to a visitor who, after entering the premises, exceeds the limits of the permitted purpose, say by straying into parts of the building unconcerned with his visit; he then becomes a trespasser.
- Prior to 1984, the occupier’s duty to trespassers was to act with common sense and humanity.
- The main provisions of the 1984 Act:
The occupier owes a duty in the circumstances
- He is aware of the danger or has reasonable grounds to believe that it exists
- He knows or should know that someone is in (or may come into) the vicinity of the danger
- The risk is one against which he may reasonably be expected to offer that person some protection” (BPP Professional Education, 2004, pg.130).
Applications:
Immediately after the spill, Talbot walked outside, pulled down the shutter of the workshop and went for a coffee. A 15-year-old girl and a 14-year-old boy who lived behind the garage often sneak into the workshop when Talbot was out and chased each other around. Talbot had previously threatened to charge them with trespass. This boys and girls exceeded the limits of the permitted purpose which was warning by Talbot and also sneaked into the workshop without the permission of him. They were liability to trespass to land. This time, they sneaked in through the unlocked back door and began to chase each other, and still without concerning about the warning about charging them with trespass to land, so they were liable for trespass to land. The boy slipped and crashed into the shutters. He broke his jaw and suffered possible long-term brain damage. There were damages for the trespasser- the boys, so as the case British Railway vs Herrington 1972 and Prior act 1984, Talbot had to act with trespasser with common sense and humanity by threatening them in the previous time. This time, he also owed duty because of slippery floors. Talbot was aware of the danger of the floor that could hurt people who stepped into this oil, he also knew that someone might come into the vicinity of danger, especially these boys and girls who used to sneak into the workshop to play and the back door was unlocked. So, the risk was reasonably expected. Talbot breached the duty of care as it was reasonable in all the circumstances, this resulted the injury for 14-year-old boy. There was no other defense for Talbot.
Conclusion:
Talbot has liability to injury of 14-year-old boy in of Occupier’s Liability Act 1984, but he can claim 15-year-old girl for trespass to land. Thus, Talbot should lock the door if he wants to go out or clean the oil carefully before going out.
Claim 3:
The customer:
Issues:
Explain if the Uptons are likely to be liable.
Rules:
- Vicarious liability: “one person commits a tort; another person may be liable jointly with the tortfeasor or even separately on his own if the tortfeasor has disappeared.
- Most applicable field: relationship of employer and employee and the tort is committed in the course of his employment.
Application:
Mr. and Mrs. Uptons ran a plant hire business. One of their “technical experts” was Cynthia, who was a part time horticulture student in early stages of her course..The Uptons controlled the way Cynthia to do her job, she integrated into the Uptons’ business as partime employee and received salary from them. So, there was relationship between Cynthia and the Uptons of employer and employee. Cynthia wrongly advised a customer that a plant would have no allergic side effects. She breached the care of duty to customer. The customer sat next to the plant for several months and suffered a variety of respiratory disorders. This was the damage for breaching the duty of care to customer of Cynthia. This damages was directly and reasonable foreseen. However the customer wanted to sue the Uptons, the employer. Cynthia gave advice in the course of her employment- in working hour; in scope of work was horticulture, in working area- in the office.
Conclusion
The customer can sue the Uptons for the wrongly advice of Cynthia according to Vicarious liability in applicable of employment relationship that duty is transferred form Cynthia. In the next time, the Uptons should not hire with limited skill.
Cynthia
Issues:
Discuss the liability of the Uptons in this situation
Rules:
Based on Health and Safety at work Act 1974:
- Plant and systems of work are provided and maintained so as to be safe and without risks to health
- He provides such information, instruction, training and supervision necessary to ensure that they are safe and without risks to health
Applications:
Mr. and Mrs. Uptons were aware of the side effects of such a plant but they believed that their young staffs were healthy enough and would have no problem. According to these analysis above, Cynthia and the Uptons had employment relationship, so the Uptons had to provide and maintain the safe working environment to the employer. According to Health and safety at work Act 1974, “plant and systems of work are provided and maintained so as to be safe and without risks to health”. However, they failed to do so in this case. Therefore, they thought it was not necessary to as their staffs to wear masks when they worked with the plant. The employer had responsibilities in providing “such information, instruction, training and supervision necessary to ensure that they are safe and without risks to health”. However, they thought it was safe and did not supply the protection for employee. Soon after the customer started the claim, Cynthia herself had suffered same symptoms. This was the damages that Cynthia had to suffer because of unsafe condition at work, and she did not receive an instruction as well as protection from employers.
Conclusion:
Cynthia can sue the Uptons for breaching the duty of care to employee through Health and Safety Act 1974. In the next time, when knowing that the plant is not safe, the Uptons should provide masks; make sure that the employee is working in safety environment.
Claim 4:
Issues:
Does May have any legal remedy against George?
Rules:
- 4 steps to prove negligence:
- The defendant owed a duty of care to the plaintiff
- The defendant breaches this duty
- The plaintiff suffered damage (injury) as a direct result of the defendant’s breach
- The defendant does not have a defense.
“Negligence mis-statement is when a special relationship the person who made the statement must have done so in some professional or expert capacity which made it likely that others would rely on what he said.”
Application:
George Cherry was a qualified accountant and investment advisor and had been practicing for 25 years. May Melon had recently won £180,000 in Lotto and seek investment advice from George. George had duty of care to all customers who came and took the advices from him, so he had duty of care to May. He recommended her to invest all of her money in a mining company Lemonade Ltd. She was reluctant to invest in a mining company due to its high risks but George told her “I have fully investigated this Company and it is totally profitable. I have been in this business for many years and I am the best in my job. Follow my advice and you shall double your money in no time at all”. He affirmed that he was the best adviser, and if May did not follow his advice, it would be waste though May was concerned about the high risks of this Company. May followed the advice and bought £60,000 shares in Lemonade Ltd at £3 a share (see the case Hedley Byrne Co Ltd vs Heller and Partners Ltd 1963).
May discovered that the Company had been in financial trouble over 12 months and this fact was very well-known in the financial market and was common knowledge to many investment advisors. It was reasonable foreseeable that the wrong statement in the advice would make May suffer loss. Thus George breached the duty of care to May through giving wrong advices.
After only two months the share value dropped to 2 cents and the Company went into liquidation. This loss was the direct result from wrong advices of George, and May relied on the advice. Also there was no defense for George.
Conclusion:
This is negligence mis-statement because May relies on expert’s advice of George, and because of his negligence, she suffered loss, so May can claim George for loss investment in Lemonade Ltd.
She also paid £600 to George for his professional advice. There was a contract between May and George. May also is able to claim George for giving wrong advice, and she can claim for £600 payment for advice. But this is more profitable for her if she claim according to law of tort. She can take back all or some money from the loss in investment.
References
EDEXCEL HNC & HND BUSINESS (2004), Mandatory Unit 5: Common Law, London: BPP professional education, Aldine House, Aldine Place.
