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Published: Fri, 02 Feb 2018
A law of tort problem question
- Negligence is one of the primary areas of tort upon which an injured individual can claim compensation for damages when another party is deemed liable for the damages caused. It is founded on the concept that one should love thy neighbour and that liability may be established outside the traditional contractual relationship.
In order to establish a potential cause of action, Helen will be required firstly, to show that a duty of care existed; secondly, that the duty of care was breached and that the breach was the cause of the damages suffered by the claimant and were caused by the actions of the defendant.
This approach was initially established with the concept that a duty of care existed to all neighbours, i.e. that one should love thy neighbour, although over the years it has been narrowed and the three stage test now exists.
- Under the three stage test, in order for a person to be considered to have a duty of care, the harm suffered must firstly, have been reasonably foreseeable from the defendant’s action; secondly, there must have been a relationship of sufficient proximity between the two parties; and thirdly, it must be fair, just and reasonable to impose a liability on the defendant.
- The concept of duty of care is slightly different in the case of occupiers. Helen was working as a contractor on Houses R Us property. Under the Occupiers’ Liability Act 1957, a party which controls a property and who has a visitor on the land has a duty of care to ensure that the premises are safe. In this case, Helen was working in the premises of Houses R Us. Houses R Us had control over the land and Helen was an invited visitor; therefore, a duty of care was owed to Helen by Houses R Us.
- Juniper is Helen’s employer and, as such, there is a duty of care on Juniper to ensure that the place at which Helen works is safe. Although Helen was not working in a building that was under its control, Juniper has a prima facie duty of care to ensure that, as far as reasonably practicable, the location is safe. The duty of care exists, however, and it may be possible for Juniper to establish that it has met the standard of care required.
- Alice and Jim were working as electricians in the office. As they were undertaking work to which they professed to have a certain level of skill, it is reasonable to impose a duty of care on Alice and Jim to those who could reasonably be foreseen to be injured by their work. They were working in close proximity to Helen’s desk and it is, therefore, reasonable that a duty of care should be imposed on Alice and Jim to those within the office for the works that they are undertaking. Therefore, Alice and Jim also have a duty of care to Helen.
Once a duty of care has been established, the next issue is to consider whether the duty of care has been breached. General principles suggest that the standard of care that should be shown is an entirely objective matter. The standard of care is measured as that which would be expected by society, i.e. the standard of the reasonable man. It is not necessary to avoid exposing others to any sort of risk as some activities will naturally include a degree of risk. Care which would be expected of reasonably prudent person, in the circumstances, should be shown when determining the standard of care expected. Where the defendant is a professional, the Bolam test will apply and the standard of care expected would be that of the reasonable professional purporting to have the skills of the professional in question. It is also stated that, if a reasonable level of precaution which is reflective of the risk of the level of potential harm and the likelihood that the harm will occur has been taken, then there will be no breach of the duty of care.
Under the Health and Safety at Work Act 1974, Juniper is under a duty to ensure that all employees have a safe area of work. Although Helen was working at an offsite location, Juniper is still under a duty to ensure that the work practices are safe. Provided the necessary risk assessments had been undertaken and any necessary precautions taken, Juniper will be able to argue that it has not breached its duty of care. There is also a corresponding duty on the employee to manage their own health and safety and Juniper could argue that Helen had contributed to her injuries by carrying hot coffee and not paying attention to where she was walking.
The electricians, Alice and Jim, had a duty of care to those in the area where they were working. The standard of care that they would be expected to show is that of the reasonable professional. This is an objective test although, given the nature of the issues, it would seem likely that having a cable exposed for five minutes during testing would be seen as reasonable. Furthermore, they had put up warning notices which would seem a reasonable precaution to take in the circumstances. Based on these two factors, it would seem that, whilst there was a duty of care, this duty has not been breached, as reasonable care has been taken, in all circumstances.
- Houses R Us has a duty of care to Helen by virtue of the fact that it is the occupier of the premises and she is an invited visitor within the premises. She is not exceeding her permission and therefore Houses R Us owes her a duty of care. The level of the standard expected is still that of the reasonable man. By failing to ensure that the necessary works were carried out in a way that did not potentially harm Helen, Houses R Us could be seen to have fallen short of this duty. It should be noted, however, that in failing to pay proper attention, Helen could find that she is at least partly responsible and this is likely to be taken into account when considering any damages she could claim.
As well as showing that there was a duty of care and that the duty has been breached, it is necessary to show that the actions of the defendant caused the losses, i.e. that the losses were foreseeable and proximate. Firstly, it must be shown as a matter of fact that the breach of duty caused the damage. Typically, the question asked is whether ‘but for’ the actions of the defendant the damage would have arisen. Secondly, if it has been factually caused by the defendant, it is necessary to consider whether as a matter of law there is sufficient cause. This is a test of remoteness and foreseeability, i.e. was the damage incurred within the foreseeable limits that the defendant should have considered and not too remote that it would be unjust to hold the defendant liable. This can be used to limit the extent of the damage for which the defendant is held liable.
It is also held that where the victim has a particular weakness this will not reduce the liability of the defendant. The so called eggshell skull situation states that so long as the initial injury is foreseeable, then the defendant remains liable for all damage that flows from this injury.
Therefore, in this case, Houses R Us remains liable to Helen in relation to the injuries suffered. It was reasonably foreseeable that she would fall and injure herself. The fact that she has sustained extensive damage to her hearing that another more robust victim may not have done so does not reduce the liability of Houses R Us. However, Houses R Us may claim that Helen did contribute towards her own fall by not looking where she was going and not taking reasonable care for her own safety. Psychiatric injury (e.g. depression) can give rise to compensation where it is directly linked to the physical injury, as is the case here.
- A duty of care arises when there is a relationship of sufficient proximity. This is thought to mean someone whom the defendant should have in their contemplation when they are going about their tasks. If a duty of care towards Juniper is established, then it will be necessary to consider whether this duty has been breached and, if so, whether the damages suffered by Juniper could be seen to be caused by the actions of House R Us.
- It is possible to argue that Houses R Us owed them a duty of care in relation to Helen. In agreeing to have Helen working from its site, it would be reasonable to conclude that Houses R Us put itself in a position of agreeing a duty of care towards Helen and Juniper.
- As established previously, Houses R Us would be seen as having fallen below the standard of care expected in relation to Helen and this could potentially be extended to include the standard of care expected by Juniper. Similarly, Houses R Us is likely to be considered to have caused Helen’s injury and therefore a claim in negligence is likely to be established.
- However, in the case of Juniper, the only loss that it will have suffered will have been economic loss as a secondary victim.
Pure economic loss cannot, as a matter of standard practice, be claimed in the case of a negligence claim. The exception to this is in the case whereby a defendant has assumed responsibility for such losses. Therefore, for pure economic losses to be recoverable, a special relationship must exist.
- In this case, a special relationship does exist between Juniper and Houses R Us as it had agreed to take responsibility for Helen during her time at its premises. Further evidence relating to the nature of the relationship and the agreements between Houses R Us and Juniper would have to be gathered to ascertain whether or not the special relationship exists. In the event that it does exist, a claim for the economic loss due to Helen’s inability to work and any sick pay that Juniper will be required to pay could be made against Houses R Us.
- Consideration should also be given to the contractual terms between Houses R Us and Juniper when Helen was sent to work on site with Houses R Us. Liability for losses may be included in this agreement and this should also be explored as a possible means of redress.
- In order to establish a valid claim for negligence, a duty of care must first be established and a breach of that duty which has caused the damage. The electricians had a duty of care to all of those working in the area within which they were working. As they were professionals, they were expected to show the standard of care that a professional electrician would be reasonably expected to have shown. Whilst it may be prudent to gain evidence from standard working practices within the electrical trade, it would seem that the level of precaution taken against harm occurring (through the placement of warning triangles) would prove sufficient to show that the duty of care had not been breached.
- Furthermore, there would have to be sufficient forseeability of the damage to Dave for the electricians to be held liable. It would seem reasonable that, if a breach of duty had occurred, the injuries that Dave had received in relation to the scalding would have been foreseeable and not too remote to allow the electricians to claim that they should not be liable. The further injuries following Dave’s discharge from hospital may be considered to be too remote, but will be discussed in more detail later as they are not relevant in the case of the electricians, due to there being no breach of duty.
- Dave could potentially claim negligence against Helen as she was the one who actually dropped the coffee on him. As co-workers, it would be fair to say that a duty of care exists and that the standard expected would be that of the reasonable person. It could certainly be argued that the reasonable person would not carry hot coffee in a reckless manner; however, it would be necessary to gather information relating to standard practice in the office before ascertaining whether the way in which Helen was behaving was considered reasonable or not, in all circumstances.
Dave, as an employee of Houses R Us, would potentially have a claim against the company in relation to its duty of care as an employer to ensure that the health and safety of employees is suitably managed. Based on the fact that a duty of care exists between Houses R Us and Dave, Dave could potentially claim for damages against his employer. By failing to ensure that the work area (albeit for only a short period of time) was safe for employees, Houses R Us has breached this standard of care. Having breached its standard of care in this way, the forseeability that Dave would be injured by being scalded is likely to be accepted and the damages are not so remote in this regard as to render it unfair to place a liability on the company.
However, Dave’s injuries went considerably further than the injuries sustained due to the scalding. There were several intervening acts that occurred which may limit the claim that Dave can make against his employer. For this reason, Houses R Us may use the defence of Novus Actus Intervenius to claim that it is not liable for the subsequent injuries. This concept of the chain of causation being broken is only valid in certain limited circumstances. The basic rule is that the defendant is liable for all damages which flow from the original breach; these may, of course, be amended by intervening acts either by Dave himself or by a third party.
The forseeability of the damage is largely down to a matter of fact; however, it is generally thought that damage of a certain type must be foreseeable in order for the original defendant to be considered liable. In this case, the claimant discharged himself from hospital when he was not in a fit medical state, thus resulting in substantial further damages. This would be likely to be seen as breaking the chain of causation due to the fact that the type of injuries (broken bones and severe concussion) would not be seen as foreseeable, based on failing to secure electrical works in the employer’s premises. This does not release Houses R Us from its original liability but does limit it to the damage caused by the burn. Dave should consider bringing an action either against the hospital for failing in its duty of care to him as a patient or against the driver of the car who subsequently caused further injuries.
Houses R Us’ Losses
- The electricians were undertaking work on Houses R Us’ premises and, as such, had a duty of care to Houses R Us to take reasonable care (which should be the reasonable care that would be expected from a professional electrician undertaking this role). They have assumed a special relationship with Homes R Us by agreeing to undertake this work.
- Further evidence would have to be gathered to determine whether their actions in testing the circuit could be seen to be reasonable in all circumstances or not. As it is the standard of the reasonable professional electrician against which Alice and Jim should be compared, it would be necessary to gather information as to what this standard would, in fact, be in these circumstances.
If it were found that Alice and Jim had acted in such a way as to be considered in breach of their duty, then the next consideration would be whether the loss suffered was foreseeable and not too remote. Claims for pure economic loss can only be made where a special relationship exists. In this case, it would certainly be arguable that a special relationship did exist, although Houses R Us would have to present evidence to suggest that this relationship existed. It is reasonable that a failure by an electrician could cause an electricity black-out and that this could disrupt work. However, the extent to which loss of production (in this case the construction project drafts) can be claimed is more difficult to establish. It is generally held that pure economic loss resulting from a delay in production due to a contractor’s liability cannot be claimed for.
- Based on this, Houses R Us would not be able to claim against the electricians. Any claim against Helen would fail for similar reasons.
Occupiers’ Liability Act 1957
Health and Safety at Work etc Act 1974
Donoghue v. Stevenson  AC 532
Caparo Industries v. Dickman  2 AC 605
Vaughan v. Menlove  3 Bing. N.C. 467
Bolam v Friern Hospital Management Committee ( 1 WLR 583
Bolton v Stone  AC 850 (HL).
The Wagon Mound  AC 388 (PC)
Smith v. Leech Brain & Co.,  2 QB 405
Page v. Smith  A.C. 155
Williams v Natural Life Health Foods Ltd  2 All ER 577
Huges v Lord Advocate  AC 837 (HL).
Spartan Steel and Alloys Ltd v. Martin & Co. Ltd  1 QB 27
Barnes DW ‘Too Many Probabilities: Statistical Evidence of Tort Causation’ (2001) Law and Contemporary Problems 64
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 Donoghue v. Stevenson  AC 532
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 Bolam v Friern Hospital Management Committee ( 1 WLR 583
 Bolton v Stone  AC 850 (HL).
 Stranks JW A Manager’s Guide to Health & Safety at Work (ebrary, Inc, Kogan Page Publishers, 2003)
 Cane P & Atiyah PS Atiyah’s Accidents, Compensation and the Law (Cambridge University Press, 2006)
 The Wagon Mound  AC 388 (PC)
 Smith v. Leech Brain & Co.,  2 QB 405
 Hicks T Post Traumatic Stress Disorder and the Law (Universal-Publishers, 2003)
 Page v. Smith  A.C. 155
 Williams v Natural Life Health Foods Ltd  2 All ER 577
 Keenan DJ & Smith K Smith & Keenan’s Law for Business (Pearson Education, 2006)
 Harpwood V Modern Tort Law (Routledge, 2003)
 Barnes DW ‘Too Many Probabilities: Statistical Evidence of Tort Causation’ (2001) Law and Contemporary Problems 64
 Huges v Lord Advocate  AC 837 (HL).
 Tribe DMR & Korgaonkar G ‘Medical Negligence – 1’ (1989) Journal of Management in Medicine 4, 3
 Spartan Steel and Alloys Ltd v. Martin & Co. Ltd  1 QB 27
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