Negligence Problem Question - a fire at Amber Valley School damages Mark's property.

Do they owe duty of care to Mark?

          The Caparo test has to be satisfied on this issue. It might be reasonable to foresee that the youths would cause danger to others if J&J left the youths unsupervised. Once they had taken control of the youths’ actions, they would be in special relationship with the youths as to satisfy the requisite element of proximity. Indirectly speaking, they may have an implied assumption of responsibility to prevent Mark’s property from being harmed by the youths. Where there is foreseeability and existing relationship with the youths that involves control, a duty of care may exist.  Thus, on the facts and in the circumstances, it is fair, just and reasonable to impose a duty on Justin and Jason.

Do they breach the duty of care?

            As J&J owed Mark a duty of care, it is necessary to consider the measure of the duty owed, that they must attain the standard of a ‘reasonable person’ in order to discharge that duty. Applying the ‘reasonable man’ test in Blyth v Birmingham Waterworks Company, the defendants might have been liable for negligence, if, unintentionally, they omitted to do which a reasonable man would have done. On the facts, going for a cigarette break at the time of working and left the youths unsupervised, even just for a while, might not be what a reasonable man would have done.

           Besides, there are two main factors for the courts to consider: the likelihood of harm; and the magnitude of harm. The courts may consider whether it was likely that harm would happen. Lord Reid in Home Office v Dorset Yacht Co Ltd applied Atkin’s neighbourhood principle where:

“The causing of damage to the other property which belonged to the respondent ought to have been foreseen by the defendants as likely to occur if they failed to exercise proper control of supervision; in the particular circumstances they prima facie owed a duty of care to the respondent…”

The damage to Mark’s property is foreseeable by the reasonable man in Ds’ shoes, given the knowledge that, in the particular circumstances, it is likely to occur if they failed to supervise the youths. Next, the courts may consider whether the harm occurred was likely to be serious. On the facts, the fire caused damage to Mark’s property and it is likely to be many weeks before the business can reopen and Mark stands to lose many thousands of pounds in lost profits. It is not mere property damage; in fact it caused further financial losses. So, the harm occurred is likely to be serious. Therefore, it is proved that Justin and Jason breached the duty of care.

Causation

               The next issue dealt with causation as the damage done by the youths must be closely related to, and very probable result of, some failure in care by Justin and Jason. The ‘but-for’ test is applied, showing that but for J&J’s failure to supervise the youths, Mark would not have suffered losses. However, even if the factual cause is satisfied, what must be identified is the operative legal cause. The courts have to consider that ‘the choice of the real or efficient cause from out of the whole complex of facts must be made by applying common sense standards’. On the facts, there is a series of events, such as Justin and Jason’s omission, the youths’ wrongful conduct, and the Fire brigades’ omission. It is for the court to consider whether J&J’s omission is an effective legal cause, if yes, then they are liable.

           However, the defendants may argue that the wrongdoing of youths is regarded as a novus actus interveniens. It depends on the reasonableness of the third party’s behaviour. If the act by third party is unforeseeable and unreasonable, then it breaks the chain of causation. Can starting a fire be regarded as unforeseeable and unreasonable? Lord Ordinary in Smith v Littlewoods concluded that the lightning of a fire in the premises by youths was in the circumstances reasonably foreseeable. Furthermore, the youths were from young offenders institution, it is no doubt that their behaviours would be specially rebellious and offensive, thus starting a fire is likely to be reasonable and foreseeable. Therefore, there is no break in chain of causation.

        The defendants may argue that the delay of the Fire Engine is novus actus interveniens. ‘But for’ the Fire Engine turned up in time to rescue; the fire would not have spread and caused further damage to the Mark’s property. However, it should be noted that rescue attempts in emergency situations created by the defendants’ negligence are unlikely to be held to break the causal chain, even if they cause or increase the damage suffered by the claimant. Thus, the delay of Fire Engine did not break the chain of causation as a matter of policy reasons; bearing in mind that the source of danger created is closely linked to the defendants’ negligence, not the fire brigades’.

Remoteness

              Is the damage caused to Mark’s property not too remote? In this issue, a useful tool to apply is the ‘scope of risk’ approach. In the circumstances, if Mark’s damage falls within the scope of risk, which is inside ‘the area of potential danger’, it might be seem as appropriate to make the defendants liable. In my view, it may depend on the distance between Mark’s shop and the school. Mark’s shop is a neighbouring property to the school, it may be considered as ‘sufficiently near’ to the school, and thus the damage is likely to be not too remote.

              Therefore, Justin and Jason may be liable for the damage. However, they can claim vicarious liability as a defence to make their employers vicariously liable for their negligence.

CHIGLEY SERVICES LTD (CS)

            On the facts, Chigley Services Ltd (CS) employs Justin and Jason to supervise the youths. Employers generally have larger assets, and greater means with which to offset any losses. So, Mark may claim for ‘deep pocket compensation’ from CS. In order to make CS liable for their employees’ act, there are two elements have to be satisfied.

            First, was the worker an employee? Employees are defined as those are employed to perform services in connection with the affairs of the employer and over whom the employer has control in the performance of those services. In short, they are those who work under a contract of service. On the facts, Justin and Jason are CS employees, thus first element is satisfied.

             Second, was the negligent act or omission done during the course of employment? On the facts, are Justin and Jason acting ‘in the course of employment’ or merely on a ‘frolic of his own’? CS may argue that they are not responsible for J&J’s omission because going for a cigarette break is an act done for their own comfort and convenience and, generally speaking, not for their employer’s benefit. In other words, their act can be regarded as an unauthorised act, for which employer would not be liable. However, this decision is merely persuasive. According to Salmond’s test, an employer will be held liable for either a wrongful act they have authorised or a wrongful and unauthorised act done by their employees. The leading case is Century Insurance Co Ltd v Northern Ireland Road Transport Board. It was held that the employers were vicariously liable for the damage caused, where the employee did the act in the course of carrying out his task of delivering petrol; even though it was an unauthorised way of doing what he was actually employed to do. According to Lord Wright in Century, the duty of the workman to his employer is so to conduct himself in doing his work as not negligently to cause damage, and thus to impose the same liability on the employer as if he had been doing the work himself and committed the negligent act. By following this precedent, CS may be liable for their employees’ conduct, the defence raised by Justin and Jason is likely to be successful.

HOME OFFICE

         Is Home Office liable for CS employees’ negligence? On the facts, CS is under contract to the Home Office to operate the young offenders’ institution. CS may be considered as ‘independent contractors’. Generally, an employer is not liable for the torts of those who are his independent contractors. In order to distinguish whether CS is an independent contractor, the control test applied. Does Home Office ‘retain the control of the actual performance’ of the work done by CS’s employees? If Home Office do have sufficient control over CS, for example, they control the details of the work, they inspect their work regularly; then CS is likely to be their employees. However, in the circumstances, CS is more likely to work under a contract for services, as they do work for Home Office, but not controlled by Home Office in the performance of that work. Thus, they is unlikely to be liable for the acts of CS employees who are not their servant or acting on their behalf.

        Furthermore, if the courts make them liable, it will open the floodgates of litigation.  As Lord Denning stated in Home Office v Dorset Yacht:

“…there is never a case in our law books when the prison authorities have been liable for it…the householder has claimed on his insurance company…none has claimed against the prison authorities…”

Therefore, Mark is likely to fail if he sues Home Office.

THE FIRE ENGINE

                  The Fire Engine got lost on the way because they put the wrong address in the sat-nav device. The Caparo test is the method for deciding whether there is a common law duty of care owed by the fire engine. On the facts, it is reasonably foreseeable that the fire would get out of control and spread and cause damage to another property which would not otherwise have been affected if the fire brigades arrived in time. In Kent v Griffiths, there is a proximate link between the claimant and the defendant upon receipt of the emergency telephone call. Furthermore, for as Stuart-Smith LJ explained in Capital and Counties plc v Hampshire County Council:

“As a general rule a sufficient relationship of proximity will exist when someone possessed of a special skill undertakes to apply that skill for the assistance of another person who relies upon such skill and there is direct and substantial reliance by the plaintiff on the defendant’s skill.”

Also, the Australian Case of Sutherland Shire Council v Heyman, Mason J illustrated that the claimant was entitled to rely on the doctrine of general reliance as imposing duty of care to exercise statutory powers. Thus, applying the doctrine of general reliance, there is proximity between the parties.

          The main issue dealt with the third element of Caparo as whether it is just, fair and reasonable to impose liability on a public authority – the Fire Engine. There is a judgment delivered by Stuart-Smith LJ, to consider whether there was any duty on the fire brigade to answer calls or to take reasonable care to do so. His conclusion was that there were no considerations sufficient to impose such duty and added:

“….if therefore they fail to turn up or fail to turn up in time because they have carelessly misunderstood the message, got lost on the way or run into a tree, they are not liable.”

              However in Kent v Griffiths, it was held that the acceptance of call established the duty of care because the ambulance was delayed for no good reason. In the circumstances, the fire engine was delayed because they got lost on the way, is it a good reason not to impose such duty on them? According to Lord Romer in Capital, as long as they exercise their discretion honestly, they cannot be made liable, unless they have acted ultra vires or unreasonably. On the facts, the fire engine has acted reasonably to minimise the risk of damage, because they called up another engine from Leicester to rescue once they were unavailable at the time. They did not however, stop taking alternative steps or organise a chain of neighbours with buckets to extinguish the fire.

        According to the Fire Services Act 1947, the fire engine is under obligation to protect a particular property but also to prevent fire spreading. However, there is no law saying that the fire engine is obliged to turn up in time upon the receipt of emergency call. Thus, the delay is insufficient to impose duty of care on the fire engine. Therefore, it is not just, fair and reasonable to impose liability on the fire engine.

Gardner v The Northern Territory (Australian case), it was held that the fire authority owed no liability for failure to protect the claimant’s property. One of the reasons is the Bush Fire Council has sought to protect lives and property by holding public awareness campaigns, to direct the householders to maintain and monitor the fire. Eburn commentated that it will not always be reasonable to rely on homeowners to take what might be considered common sense actions to look after their own interest, the fire brigades could have been expected to be more pro-active.

            Now, it may be noted that the Human Rights Act 1998 provides an alternative remedy against the rescue services in some circumstances, and may in time persuade the courts to review the extent of the fire engine affirmative duties at common law. 

REMEDIES

        Mark has suffered property damage, consequential loss and pure economic loss. He can claim damages (financial compensation) for property damage to recover the cost of repair and the consequential loss of profits. However, pure economic loss was not a foreseeable consequence of damage to the claimant’s property, so it is not recoverable in negligence for acts or omissions. In Spartan Steel, it was held that the plaintiff should recover for the physical damage, and the consequential loss of profit, but not for the future loss of profits, because that was pure economic loss independent of the physical damage. Furthermore, a majority of European jurisdictions would reject such a claim. For example, in German Law, liability for pure economic loss is generally excluded. Therefore, Mark cannot recover for the future loss of earnings.

        Where several defendants are in some way responsible for the same damage suffered by the claimant, it is rare for the court to hold that only one of them is the sole legal cause. Thus, when the court is called upon to make final decision, each of the defendants may be ordered to pay a percentage of the claimant’s damage depending on the degree of fault and causal connection between the negligence and the damage. Therefore, the claimant still receives 100% of the damages which are paid by several defendants.

CONCLUSION

        The law of negligence is not concerned with developing a ‘one size fits all’ approach.                In Lord Chancellor opinion, various factors will have to be taken into account by reasonable man in considering cases involving fire. Markesinis commentated that it must much depend on what the evidence shows is done by ordinary people in like circumstances to those in which the claim of breach of duty arises. 

(3,370 words)

       

                       

 

             

Bibliography

Books

Murphy J, Street on Torts, (12th edition, Oxford University Press, 2007)

Lunney M and Oliphant K, Tort Law (3rd edition, Oxford University Press, Oxford, 2008)

Steele J, Tort Law: Text, Cases and Materials, (Oxford University Press, 2007)

Salmond and Heuston, Law of Torts, (Sweet and Maxwell, 1996)

Bussani M and Palmer Vv, Pure Economic Loss in Europe, (Cambridge University Press, Cambridge, 2003)

Articles

Witting Cf, ‘Duty of Care: An Analytical Approach’ (2005) 25 OJLS 33

Eburn M, “A Case Study of Tort Liability for Fire Damage” (2007) AJOEM Vol.22 No.1

Markesinis Bs, “Negligence, Nuisance and Affirmative Duties of Action” (1989) 105 LQR 104

Electronic Sources

‘Home Office v Dorset Yacht Co Ltd [1970] UKHL 2 (06 May 1970) ’

, accessed 10 January 2014.

‘Maloco v Littlewoods Organisation Ltd [1987] UKHL 3 (05 February 1987) ’

, accessed 12 January 2014.

‘Kent v Griffiths & Ors [2000] EWCA Civ 3017 (3 February 2000) ’

, accessed 17 January 2014.

‘Capital & Counties Plc v Hampshire County Council [1997] EWCA Civ 3091 (14 March 1997) ’

, accessed 17 January 2014.

Table of Statutes

Fire Services Act 1947, c.41

Human Rights Act 1998, c.42

Table of Cases

Privy Council Cases

Goh Choon Seng v Lee Kim Soo [1925] AC 550

United Kingdom Cases

Donoghue v Stevenson [1932] UKHL 100

Caparo Industries plc v Dickman [1932] AC 562

Smith v Littlewoods Organisation Ltd [1987] UKHL 18

Goldman v Hargrave [1967] 1 A.C. 645

Bolton v Stone [19510 AC 850

Weld-Blundell v Stephens [1920] AC 956

Carmarthenshire County Council v Lewis [1955] AC 549

Blyth v Birmingham Waterworks Company [1856] 11 Ex Ch 781

Home Office v Dorset Yacht Co Ltd [1970] UKHL 2

Yorkshire Dale Steamship Co Ltd v Minister of War Transport [1942] AC 691

Bourhill v Young [1943] AC 92

Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 509

Honeywill and Stein Ltd v Larkin Bros’ (London Commercial Photographers) Ltd [1934] 1 KB 191

Kent v Griffiths [2001] QB 36

Capital and Counties plc v Hampshire County Council [1997] QB 1004

Weller & Co Ltd v Foot and Mouth Institute [1966]

Spartan Steel and Alloys Ltd v Martin & Co Ltd [1973] QB 27

Australian Cases

Sutherland Shire Council v Heyman [1982] 157 CLR 442

Gardner v The Northern Territory [2004] NTCA 14

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