Examining Possible Claims In Tort

In the fact we can see that a University drinks party was held in the hall of science building. Though outsiders were prohibited, Gavin who was a student of the University took his girlfriend (outsider) to join him for drinks. At the time of reception three wine glasses accidentally fell to the floor and smashed .Then the cleaner Kleenze plc came to clean .The cleaner came with her son who is three years old. But unfortunately her son went near the broken glasses and picked up. As a result, her son’s mouth and throat were badly cut. Again during the party Amanda who is a girlfriend of Gavin slips on the wet floor and drops her expensive phone. Gavin tries to catch her but falls and breaks his arm.

The given question requires discussion on occupiers’ liability and, employers’ liability. It has to be considered whether or not Gavin, Amanda, and Hercules have approached on their possible claims in tort.

Advising Gavin and Amanda on his possible claim in tort

As we know Gavin was a student of University of Smartville . The students and member of faculty of the University were aware that the building prohibited by the outsiders. During the reception three wine glasses accidentally fell to the floor and were smashed. After then during the party Amanda slips on the floor and drops her expensive phone. Gavin tries to catch her but falls and breaks his arm.

The liability to visitors is covered by the Occupiers’ Liability Act 1957 and the Occupiers’ Liability Act 1984. The 1957 Act deals with lawful visitors and the 1984 Act deals with trespassers. Under s.1(2) of the act ,a visitor is someone who has express or implied permission from the occupier to enter the premises .Visitor include invitees ,licensees’ and those who have contractual right to enter. According to the section it is cleared that Gavin is lawful visitor. And on other hand Amanda is a trespasser.

The acknowledged test for ‘occupation’ can be found in the case of Wheat v Lacon [1966] [1] . It was said “Wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person lawfully there"

S.2 (2) of the Act is quite clear, it states . “The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted to be there ."

So University authority is the occupiers’. During reception three wine glasses were broken. But the occupier did not play any role in that circumstances. They might clean the floor in that time or otherwise. They needed to the student and faculty to aware about it ,but they did not.

Rather sensibly, the 1957 Act recognises that experts working on the property will “appreciate and guard against any special risks." S.2(3)b So, in Roles V Nathan [1963] [2] , the occupier was not held liable for the death of two chimney sweeps by reason of carbon monoxide and in General Cleaning Contractors v Christmas (that was the man’s name by the way) [1953] the occupier was not liable when their window closed on Christmas’ hand, causing him to fall. As a window cleaner, he should have taken such precautions to prevent this – he should have been aware of the special risks – after all, he was a window cleaner’! In any event, his employer was liable as they had not provided a safe system of work. Generally, warning signs and notices should be specific. It is not enough for an occupier to erect a sign stating ‘BEWARE’ or ‘DANGEROUS’. In Staples v West Dorset District Council [1995], the Court of Appeal found for the council. Simply, when you walk on slippery stones , there is a good chance you will slip and fall.

So they ,the occupier might need to erect a sign stating ‘BEWARE’ or ‘DANGEROUS’ about that incident of smashed glasses and slipped floor.

By the way, if you see a sign that says something like ‘We do not accept responsibility for injury caused on these premises’, it’s unlawful by reason of the Unfair Contracts Act 1977 S2 (1). But, of course, the occupiers know that and hope that you don’t.

Now, the 1984 Act is somewhat different. It deals with the duty owed to persons ‘other than visitors’ and by this it means ‘trespassers’ people using a private right of way and oddly, people visiting National Parks. S1 (3) of the 1984 Act states the occupier owes a duty if:

a) He is aware of the danger.

b) He knows reasonable ground to believe that the person is in the vicinity of the danger.

c) He should be reasonably expected to offer the person some protection.

S1 (6) provides that no duty is owed to persons who willingly accepts risks. This was the main point of Tomlinson v Congleton [2004] [3] , where the claimant became injured when he dived into a pool at a country park. He ignored the warning signs and became seriously injured. When he entered the water, he became a trespasser. The defendants relied on Scrutthon’s LJ opinion in The Carlgarth [1927] “ When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters"

In Tomlinson, Lord Hobhouse said “ Does the law require that all trees be cut down because some youths may climb them and fall? Does the law require the coastline and other beauty spots to be lined with warning notices?." The answer to all these questions, is of course, no.

Though Amanda is a trespasser, she does not know that she is a trespasser. Because Gavin does not informed her. There is a need to protect to enter the trespasses with using ID card, but the occupier did not do that.

Advising Natali on his possible claim in tort

Basically Natali is employed by Kleenze plc and her duties include cleaning the law building. She is a single mother with a three years son called Hercules. She comes to clean the smashed glasses. But she enter with her son Hercules which is not permitted.

The liability of an employer to pay damages to employees for personal injuries sustained in the course of employment. In general, an accident arising out of the course of employment will be deemed, in the absence of evidence to the contrary, to have arisen out of that employment. In general, employers may be held liable for an accident arising out of the general course of employment. In some jurisdictions, it is possible for the employee to take legal action against the employer to recover damages for harm caused by the employer's negligence.

Here it is clear that the fact is incurred with Employer Liability. Because Natali is employed by Kleenze plc and her duties include cleaning the law building. But Kleenze plc sent her to science building.

Following are four principle duties that an employer owes to his duties

1. Competent staff;

2. A safe place of work;

3. Proper plant and equipment; and

4. A safe system of work. These are simply aspects of the broader duty to see that reasonable care for the safety of employees is taken.

Competent staff

At common law an employer owes a duty to his employees to select component employees.

But Natali was not a competent employees, because her son has not got any care taker at all. As a result, Natalia had to take her son with her.

A safe place of work;

An employer must take such steps as are reasonable to see that the premises are safe. Although this was not mentioned by Lord Wright in Wilson & Clyde Coal (above), it has been accepted by the courts.The employer is also under a duty with respect to the premises of a third party even though he has no control over the premises, but the steps required to discharge this duty will vary with the circumstances.

In fact Natalis’s work place was not safe.

Proper plant and equipment; and

An employer has a 'duty of taking reasonable care to provide proper appliances, and to maintain them in a proper condition in Lord Herschell, Smith v Baker [1891] [4] . If necessary equipment is unavailable and this leads to an accident he will be liable, although he is not necessarily bound to adopt the latest improvements and equipment Toronto Power Co v Paskwan [1915].

Section 1(1) of the Employers' Liability (Defective Equipment) Act 1969 (which reversed the decision of the House of Lords in Davie v New Merton Board Mills [1959] makes an employer liable if an employee suffers personal injury in the course of his employment in consequence of a defect in equipment provided by the employer, and the defect is attributable wholly or partly to the fault of a third party, whether identifiable or not.

. A safe system of work

It is a question of fact whether a particular operation requires a system of work in the interests of safety, or whether it can reasonably be left to the employee charged with the task. It is usually applied to work of a regular type where the proper exercise of managerial control would specify the method of working, give instruction on safety and encourage the use of safety devices.

Although normally thought of in terms of physical safety, it is clear that the obligation to provide a safe system of work also extends to an employee's mental health. Petch v Customs and Excise Commissioners [1993] [5] . There is also scope for arguing that the employee has voluntarily accepted the risk:

If an employee suffers psychiatric harm as a result of witnessing a 'shocking event' for which his employer is responsible, then the ordinary rules for such claims apply. The employee must bring himself within the category of a 'primary victim' or satisfy the restrictive criteria applied to 'secondary victims':

Where an employer has followed a general practice of a particular trade or industry the claimant will have some difficulty in establishing that the practice was negligent.

There are two aspects to the provision of a safe system of work: (a) the devising of a system; and (b) its operation. Even if the system itself is safe a negligent failure to operate the system, whether by another employee or an independent contractor, will render the employer liable.

It may need to Natali that she should take extra care when she working at the science building.