- Information
- AI Chat
Negligence in Tort
Law of Tort (LAW209)
University of Liverpool
Recommended for you
Preview text
Part A
Cassie’s Claims
The courts have used a multi-faceted approach to determining scope of negligence, using duty of care, breach of duty, and causation to establish a tort of negligence. Cassie works for Euphoria Ltd, and the company would owe Cassie a duty of care, established in Robinson v CC for West Yorkshire. 1 By applying the reasonable person standard, established in Blythe v Birmingham Waterworks Co, 2 we can determine that Euphoria Ltd did not act reasonable by carelessly failing to store the euphorium correctly and failing to supply employees with safety equipment, therefore breaching their duty of care. A simple ‘but for’ test establishes a casual link between the breach and Cassie’s injuries (Barnet v Chelsea and Kensington HMC) 3 and Cassie would not be experiencing her nightmares and flashbacks if not for the breach. TBC
Cassie must have a ‘clinically-recognised psychiatric injury’ to bring her claim, per Lord Denning in Hinz v Berry. 4 Her nightmares and flashbacks would not qualify, and that further evidence would be required as to whether Cassie’s symptoms are something more severe such as PTSD, which would qualify. If she was to develop symptoms of PTSD, she would be treated as a primary victim in this case. Cassie managed to duck out the way but was still in the zone of immediate and physical danger, established in White v CC of South Yorkshire Police. 5 The action of ‘ducking’ shows Cassie feared for her own safety and in the case of Dulieu v White, 6 shows us that a person is eligible for damages if they are concerned about the impact that the accident may have on them.
Jules’ Claims
Jules may be a secondary victim in the accident that occurred with her partner Rue, first recognised in Hambrook v Stokes. 7 Bourhill v Young 8 established it must be reasonably foreseeable that a person of ‘ordinary fortitude’ would suffer psychiatric injury, which is safe to assume considering Jules’ circumstances. The case of Alcock v CC of South Yorkshire 9 also states that Jules must have a close relationship to the victim, which she did as the girlfriend. It also stated there must be proximity to the event or its immediate aftermath, and Jules arrived several hours later to the hospital, which may not be immediate. Nevertheless, Jules witnessed Rue after the incident in a coma, still alive, then witnessed her dying, which may satisfy those criteria. Jules also witnessed Rue through her own eyes and not virtually or by word. Furthermore, Mcloughlin v O’Brian 10 is a case with very similar circumstances, and the Court granted that the claimant was found to be a secondary victim of an incident. In conclusion Jules also has a clinically recognised psychiatric injury; as she suffers with PTSD, therefore these points make Jules be a secondary victim to the negligence claim.
1 [2018] UKSC 4 2 [1856] 11 Exch 781 3 [1969] 1 QB 428 4 [1970] 2 QB 40 5 [1998] 3 WLR 1509 6 [1901] 2 KB 669 7 [1925] 1 KB 141 8 [1943] AC 92 9 [1992] 1 AC 310 10 [1983] 1 AC 410
Maddy
As a result of the explosion, and consequently road closures, Maddy missed a business meeting and lost out on a £75,000 contract. It is unlikely that Maddie would have any claim in negligence. This is because she has no duty of care. It is more difficult when involving financial loss as she is not injured or suffering from psychiatric illnesses because of the explosion which happened several days ago. A lot of existing authority clarifies financial loss rarely takes claims in negligence, in particularly in a case called Marc Rich v Bishop Rock. 11
Maddy only has the ‘but for’ test going for her, and that but for the explosion happening and the road staying open, she would not have missed her meeting, although this is nowhere near sufficient for a claim in negligence.
Fezco’s Claims
Fezco works for Euphoria Ltd as a scientist, and therefore, as an employee, he is under a duty of care by his employer, (Robinson v CC for West Yorkshire). 12 Fezco developed lung cancer, possibly because of inhaling euphorium vapour, which Euphoria Ltd were aware this was a risk too, so this could be argued that they acted negligently by not providing sufficient safety equipment. Breach of duty is decided by the objective test, and if Euphoria Ltd acted to the standard of a reasonable person, (Vaughan v Menlove). 13 Euphoria will be held to the standard of a reasonable company within that profession, like in Wilsher v Essex. 14
There are several factors the court will take into consideration when determining if Euphoria Ltd breached the duty of care and acted negligently. It is reasonable to say that Euphoria Ltd knew of the foreseeability of harm, as it states they knew for years that inhaling euphorium vapour could increase the risk of lung cancer. Furthermore, they may not have been aware, but if they were aware Fezco was a smoker and had a rare genetic predisposition to lung cancer, they should have taken extra steps to assure the safety of Fezco working with cancer causing vapour. A reasonable person would not take precautions against every foreseeable risk, Lord Oaskey argued in Bolton v Stone 15 , however, I think that considering Euphoria Ltd knew of the risk and the link with lung cancer and this is a serious consequence that is likely to happen, they should have done more as an employer to protect their employees and provided basic safety equipment. The court will consider the cost and practicality of purchasing the safety equipment. For a leading pharmaceutical company, it should be no burden on Euphoria Ltd to supply their employees with safety equipment. Euphoria Ltd also admitted they should have supplied its employees with masks and safety equipment. It may also be safe to assume that it is common practice in this industry to provide their employees with safety equipment and failure to conform to a common practice of taking safety precautions is strong evidence of negligence. 16
Courts would then have to establish causation between Fezco developing lung cancer, and Euphoria Ltd’s negligence. In relation to factual causation, the issue is whether Fezco would have developed lung cancer but for Euphoria’s breach. Euphoria have expressed they have known of a risk between lung cancer and inhaling euphorium vapour, nevertheless this may not actually be what caused Fezco’s illness. Fezco is a smoker with a rare genetic disposition to lung cancer, which makes him a
11 [1996] AC 211 12 [1932] UKHL 100 13 [1837] 3 Bing. N 467 14 [1988] 1 AC 1074 15 [1951] A 580 16 Paula Giliker, Tort (7th edn, Thomas Reuters 2020) 170
Part B
Herman’s Claims
Herman suffers personal injury (serious cuts to his scalp and then contracting tetanus), due to Imani’s purported negligence. The potential defendant here is Gladys. Imani is not under a contract of employment with Gladys, she also is self-employed, however vicarious liability can be imposed, in the absence of a traditional employer-employee relationship if the tort was committed because of activity being undertaken by Imani on behalf of Gladys.
Vicarious liability is a form of secondary liability where the defendant can be liable for the tortious acts of someone else, i., an employee. Imani is carrying out this haircut which is integral to Gladys’ business, for the benefit of Gladys and the commission of the tort is a risk created by Gladys as she assigned Imani to Herman under her pro bono work scheme. This was outlined in the case of Various
Claimants v Catholic Child Welfare Society 19 and further solidified in Cox v Ministry of Justice. 20 Imani had admitted she acted negligently when failing to make sure her equipment was clean and safe to use, following the incident and a tort was established.
Thirdly, to make Gladys vicariously liable for Imani’s negligence, there must be a close connection between that relationship and Imani’s wrongdoing. The test to determine this is the Salmond’s Test. 21 Gladys requires the hairstylists to devote a minimum of two hours each week for pro bono work and assigns Herman to Imani, meaning Imani’s act of negligence was a wrongful and unauthorised mode of doing some act authorised by Gladys, which satisfies the test. This means it is likely that Gladys will be held vicariously liable for Imani’s negligence.
Imani’s Claims
Imani suffers personal injury after she ignored a warning sign, then entered a stock room and touched a live wire, waking up in a hospital bed in a bad state. Imani might want to try bringing a claim against Glady’s (who is the occupier of the premises) for personal injury. Firstly, we need to determine if Imani was a trespasser in this situation or a visitor, as if she was a visitor, Glady’s would owe Imani a duty of care and Glady’s can be sued for failure to take reasonable care. Under s(2) of the Occupiers Liability Act 1957 22 , a visitor refers to someone who has express or implied permission to be on the premises and this stems from the case of Robson v Hallet. 23 It is obvious that Imani has express permission to be on the premises as she works there, however she could have exceeded her space limits by entering the locked storeroom. The role of Imani’s intention however plays a key role in determining whether she was a visitor or a trespasser, as the reason she broke into the stockroom was to get a first aid kit, to assist a customer who was bleeding.
If Imani was not satisfied as being a trespasser in these circumstances, Glady’s would be liable as he owed a duty of care to Imani. To discharge liability, Glady’s has placed a sign on the door which reads ‘danger, authorised personal only’. Nevertheless, a sign which does not point to a particular hazard is unlikely to count as a warning notice, as it must have explicitly pointed out there was live wiring and electrical hazards behind the door, outlined in s(4)(a).
TBC
Dudley’s Claims
Dudley suffers from not being able to sleep in the day and being able to play video games due to the noisy nature of the salon next-door. Dudley may be wanting to bring a claim against Gladys and her hair salon for private nuisance. Dudley may want to argue that The Beauty Studio causes substantial interference with the enjoyment of his land. The Court will take several factors into account when determining if The Beauty Studio is causing a private nuisance or not. Before this, Dudley must show he has a proprietary interest in the land, established in Hunter v Canary Wharf. 24 Dudley owns the building, so this is justified.
19 [2012] UKSC 56 20 [2016] UKSC 10 21 J Salmond, Law of Torts (Sweet and Maxwell, 1907) p83. 22 Occupiers Liability Act 1957 23 [1967] 2 QB 939 24 [1997] AC 655
The heat has caused physical change in her living room, as well as potential financial loss due to the expensive nature of her wallpaper, so one could argue that the damage was substantial. The courts take several factors into account with reasonableness, and a similar case of Robinson v Kilvert, 28 regarding paper, saw the court argue that the conditions in the place of concern were not unusual and the claimant’s operation in the place were not unlawful, and that the heat from the factory would not have damaged ordinary paper. The Court concluded by saying that when one carries on an unusually delicate trade (wallpaper), they cannot then complain because of the defendant’s lawful business on their property, which has also been in business for 32 years without any complaint. In conclusion, I feel the Court would find Gladys to be a reasonable user of her property and a lawful user and that Eunice’s abnormally sensitive wallpaper peeling off is mere personal discomfort and not excessive enough regarding the circumstances (Walter v Selfe). 29
28 [1889] 41 Ch D 88 29 [1851] 4 De G & Sm 315
Negligence in Tort
Module: Law of Tort (LAW209)
University: University of Liverpool
- Discover more from:
