In relation to the Salmond test, J has to prove that although he was not badly injured his harm could have been much worse and higher precautions needed to be taken. (Elliot, 2003) Using the principle state in Etheridge v East Sussex Country Council (1999), W can argue they took all the reasonable precautions to avoid accidents. They are not required to provide absolute safety for every person in every possible accident that could occur. (Elliot, 2003) Furthermore, Bolton v Stone (1951), in which was held that there was no breach of the duty, can be applied if W can demonstrate that they took all the necessary reasonable precautions to avoid the accident. “The magnitude of the risk must be balanced against the cost and trouble to the defendant of taking the measures necessary to eliminate it” (Elliot, 2003)
It looks clear from the details given that the injury was caused by the breach of duty. J can argue that it was not too remote to foresee that the breach of duty could have caused an injury. Margereson v J W Roberts Ltd (1996) affirmed that it does not have to be a specific damage to be reasonably foreseeable, but that a similar injury, or even lighter one, can be foreseen.
Based on the balance of probabilities W owns a duty of care to J based on the relationship of geographical proximity he is mostly likely to receive compensation for the injury. If no duty of care is owed then both J’s claims cannot be taken into considerations. However, by the information given it is not possible to establish if W has taken enough precautions or if he could have reasonably avoided the accident. It is also helpful if W can demonstrate that this type of accident does not occur very often. J’s lost of wages is a direct consequence of the injury, thus J can claim compensation for the financial loss. Since it is not considered a pure economics loss it is recoverable under a negligence claim. (Smith, 2003)
SONIA V WHACKY BUILDERS LTD
As previously stated, W owe a duty of care to all the people who can reasonably foreseeably be affected by their actions. Hayley v London Electricity Board (1965) recognise a duty of care to the people walking on the pavement. However, W can argue upon the burden of proof that it was not reasonably foreseeable, and thus too remote, that a child could pass by at that time of the day.
Contributory negligence of the school or the careless child can be argued by W based on Sayer v Harlow UDC (1958) on which was established contributory negligence of the claimant. However, S can argue, using Jones v Lawrence (1969), that a 9 years old girl’s behaviour is expected from her and has to be foreseen. In order to establish if Hayley v London Electricity Board (1965) can be applied, S has to prove that W did not take enough precautions to avoid a possible injury.
Based on the balance of probabilities W owes a duty of care to S. However, it was not given enough information nor evidence about how W has protected the area surrounding the hole and which precautions W took in order to avoid the accident. The claim can succeed or fail based on the burden of proof of S.
BIG PLC V WHACKY BUILDERS LTD
This case is concerned with pure economic loss. As specified by Elliot (2003), there is a distinction when the financial loss is not the direct consequence of the damage to a property or personal injury. In cases of pure economic loss the law of tort does not usually accept claims. Owens (2001) specifies the reason for this as the pure economics loss is usually dealt with under contract law and because it could lead to a “floodgates” situation which it is argued that this would give rise to thousands of claims for pure economics loss. It is also specified that unless particular circumstances apply, no duty of care is owed for pure economics loss.
However, by looking at the case that set the precedent, Spartan Steel v Martin (1973), in which was held that no duty of care was owed for the loss of profit, J can argue that some data or job they were doing at the moment the power supplied was cut off was lost or ruined.
Based on the balance of probabilities, B does not seem to be able to claim for compensation for pure economics loss for the profit of the entire day. However, if any machinery was damage, they can claim compensation. They can also claim compensation for the value (if any) of the data lost at the moment the electricity stopped.
BALJIT’ HUSBAND V HOSPITAL
Three different issues and possible claims that Baljit’ Husband (BH) may arise from this scenario. The first one is regarding Whacky Builders (WB); the second is concerning the ambulance service (AS) and the third is regarding the doctor (D).
Concerning WB, BH can invoke res ipsa loquitur based on Scott v London and St Katherine Docks (1865) and Byrne v Boadle (1863) which state that the burden of proof can be reversed if the cause of the harm is totally in control of the defendant and the accident would have not accord if the defendant had taken proper care. (Keenan, 2001). WB can argue and prove that external factors not under his control have caused the accident.
Given the evidence that the ambulance did not arrive for 30 minutes, B can apply Kent v Griffiths and Others (2000) in order to establish the duty of care and the breach of the duty in which AS failed to respond promptly to an urgent call given by the fact that B was unconscious. As explained by Elliot (2003), this case states that “the nature of the service provided by the ambulance are accepted to have duties of care towards individual patients”. However, Elliot (2003) distinguishes between policy and operational matters. Shortage of ambulance staff and allocation of resources are identified as policy matters which are not recognised by law as breach of duty. This is also confirmed in Rigby V Chief Constable of Northamptonshire (1985), in which emergency services are not negligent for policy decision.
The third claim involves a doctor in a hospital which thus implies medical negligence. As stated by Elliot (2003) doctors and the National Health Service owe a duty of care to their individual patients. However, in Barnett v Chelsea and Kensington Hospital (1968) it was established that although a duty of care is owed, even if there is a breach of the duty, the claimant has to prove that the causation of the injury is the negligent act of the doctor. (SOURCE) Furthermore, Roe v Minister of Health (1954) held that the standard procedure known at the time has to be considered and applied. Thus, BH has also required proving that the doctor did not visit his wife as a reasonable doctor would have done using the standard procedure.
Based on the balance of probabilities, the cases above can be analysed as follow:
Concerning WB, res ipsa loquitur can be applied and the burden of proof can be reversed since evidence suggests that the causation of the harm is totally in control of WB. Thus, WB has to prove that it was not negligent.
Although a duty of care is owed by the ambulance, evidence suggests that the delay was caused by a policy matter; thus they did not breach the duty and AS is not negligent.
In order to succeed with his claim BH has to prove based on the balance of probabilities that the doctor had acted negligently by not properly visiting his wife as in a standard procedure and that as a result of this omission he did not save her life which he was able to. Not enough evidence was given in order to establish D’s negligence.
Regarding the financial claim, evidence (Owens, 2001) suggests that it will be easier and more likely to receive compensation in terms of the loss of income based on his wife’s salary.
MICK V WHACKY
Since there is a working relationship between the parties, this case is also related to the Law of Contract. In the light of the facts given this case is concerned with employers’ liabilities under the Law of Tort in respect to negligence. However, it was not specified which kind of relationship there is between the parties as different law applies to employers and contractors. “Workman” was interpreted as employee.
As specified by Owens (2001), an employer owes a duty of care to its employees, as in reference to this case W has to provide a safe place of work. “Employers must take reasonable steps to ensure a safe place of work; but this does not mean that every foreseeable risk must be eliminated, if doing so would be unreasonably onerous” (Jones, 2003) This concept was also held in Latimer v AEC (1952) in which Elliot (2003) adds that in cases where the defendant is reacting to an emergency situation, the judgement will be based on what a reasonable person would have done in that situation also considering the time available.
“Due warning may in appropriate circumstances discharge the occupier’s duty of care” (Deakin, 2003) Thus, W can argue that they put up a warning notice as a precaution. Furthermore, in Rae Geoffrey v Mars Ltd (1990) it was held that it is considered contributory negligence of the claimant when he did not pay enough attention or care and injured himself. However, Deakins (2003) clearly stated that the sign has to be adequate in language, location and given in a proper manner, otherwise it will not discharge the duty of care.
As explained by Dias (1989), Employer’s Liability Act 1969 made compulsory for all the employers to have liability insurance. Furthermore “Social Security Act 1975 created a national insurance system which provides benefits for injuries arising out of and in the course of insurable employment”. Dias (1989)
Based on the balance of probabilities although W owes a duty of care to M evidence suggests that M has contributory negligence since he did not pay attention to the warning notice. M has to prove that not enough reasonable precautions have been taken. Compensation for the injury is reduced on the percentage of contributory negligence. As previously explained, loss of earning as direct result of the injury is considered financial loss and it is recoverable. The time off work and injury occurred on workplace are both covered by the National Insurance scheme. (Jones, 2002)
Bibliography:
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