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The Law of Negligence to Deal

Info: 5473 words (22 pages) Essay
Published: 26th Feb 2021

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Jurisdiction / Tag(s): UK Law

With The Aid Of Case Law, Discuss And Apply The Law Of Negligence To Deal With Miss Fortune’s Claim For Compensation For Her Injuries.

The issue to discuss in this particular question is whether Miss Fortune may succeed in her claim for compensation for her injuries as a result of the negligence of Fast Renovations Ltd (hereafter referred to as FR Ltd) as well as MSc Constructions Ltd (hereafter MSc Ltd) who engaged FR Ltd to perform the work.

Under the law of negligence, three elements must be proven for a claim to succeed. The first element is that there must be a duty of care between the tortfeasor and the victim. Secondly, there must be a breach of such duty. Finally, the breach of such duty must have caused a proximate damage.

The first element which must be considered is whether there exist a duty of care between the tortfeasor and the victim. In this case, the victim is Miss Fortune, a member of the public who was walking past the building. The tortfeasor meanwhile is FR employees who built the scaffolding platform which collapsed together with an employee, resulting in a hammer hitting Miss Fortune.

Under the case of Donoghue v Stevenson [1932] All ER Rep 1; [1932] AC 562 to establish a duty of care relationship, the claimant must have been within a member of a group which can be reasonably foreseen to suffer harm as a result of defendant’s acts or omissions. An illustration can be seen in the case of Margereson v JW Roberts Ltd [1996] PIQR 154 where the court held a duty of care relationship arise between an owner of an asbestos factory and children playing around the factory, as it can be reasonably foreseen that the owner of the factory must take steps to prevent any short-term or long-term risks to their health from dust contamination.

Applying this to the particular instance, we may argue that FR Ltd, in undertaking repair works, has a duty to ensure sufficient safety measures are taken to prevent injury caused towards any member of the public, especially considering that such work are undertaken at the apartments, which is undoubtedly a residential area.

In establishing the duty of care, it is also necessary to consider whether FR Ltd can be made liable for the negligence of its employees, and similarly, whether MSc Ltd can be made liable for the negligence of FR Ltd, who they have hired to engaged in the renovation works.

This belongs under the area of vicarious liability under the law of tort. Under the principle of vicarious liability, employers can be made to be vicariously liable for any tort committed by their employees in so far as it occurs during the course of the employment.

Let us first consider FR Ltd’s liability for the negligence of its employees. Under the authority of the case of Lister v Hesley Hall Ltd [2001] UKHL 22, Lord Clyde in the House of Lords commented that to establish liability, two questions may be asked, that is, whether the person committing the tort was an employee, and secondly, whether the employee was acting within the course of employment.

In this scenario, it is safe to assume that the employee who commits the tort is an employee of FR Ltd based on the wordings of the question, without getting into rules and principles of what is effectively an employer. It is sufficient to note that people with a contract of services, that is, an employment contract will be considered as an employee, as held in the case of Ready Mixed Concrete (South East) v Minister of Pensions and National Insurance [1968] 2 QB 497.

Hence, what needs to be settled is simply whether the failure to erect the scaffolding properly can be said to be made within the course of employment. This is also a pretty straightforward discussion. As erection of scaffoldings is made simply for the purpose of efficient renovation works, which is the main purpose of the contract of employment of the employee, it would be said to be within the course of employment.

It must be noted however, that wrongful modes of doing an authorised act can also put the employer under a vicarious liability. In the case of Rose v Plenty [1976] 1 WLR 141, it was held that so long as the person injured was performing some act which provides some benefit to the employer, there will be vicarious liability.

Here, it is clear that both erection of the scaffoldings as well as the accident where the employee fell, are both actions which occurred during the performance of duties benefiting the employer, FR Ltd. As of such, it would seem that vicarious liability is clearly established.

On whether MSc Ltd can be made to be liable for the negligence of FR Ltd, the issue is less straightforward. Using the two-question approach as enunciated in Lister v Hester Hall would provoke some interesting questions, such as could FR Ltd be considered an employee of MSc Ltd?

Under the first question, only those considered as an employer can be made vicariously liable for the negligence of its employees. A contract of services can be distinguished in this area with a contract for services, where a contract for services will not result in an employer-employee relationship. Contract for services will only cause such persons to be held as independent contractors.

Here, it is sufficient to incorporate a control test to find out whether it is a contract of services or a contract for services. It is well-established in common law that where an employer is able to tell the person who he contracted with the methods and manner of the execution of work, and where the relationship is closer to a master-servant relationship, such relationships will be considered an employer-employee relationship.

An example to determine this is if the person contracted with is provided with a regular salary or partake in the company’s pension schemes.

Based on the scenario, it is submitted that the contract between FR Ltd and MSc Ltd is most likely a contract for services and hence MSc Ltd could not be made vicariously liable for the negligence of FR Ltd. It is clear that MSc Ltd had chosen to engage in a company independent from itself to provide a service of renovation and repair works, and that none of the employees which FR Ltd chose for the project is also chosen by MSc Ltd. In essence, it can be argued that there is no proof that MSc Ltd took any part in controlling the methods used in the renovation works.

As of such, in conclusion, it is humbly submitted that only FR Ltd will be made liable for the negligence of their employees, and not MSc Ltd.

The second element which we shall consider is whether there has been a breach of such a duty of care. We have previously deduced from analysis that such a duty of care does in fact exist on the side of FR Ltd, but not on the side of MSc Ltd.

Under the principles of breach of duty of care, a breach of duty of care will be assessed on the basis of the test of “reasonableness”. In the case of Glasgow Corporation v Muir [1943] SC (HL) 3, the court explained the standard of foresight of the reasonable man. In the case, Lord MacMillan explained that “the standard of foresight of the reasonable man eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question.”

Hence, assessment of reasonableness does not require us to look at the particular characteristics of the employee in question, but rather, a general assessment of the reasonable duty of such a person with regards to a contract requiring him to do renovation works.

In this case, it is particularly useful to take a look at regulations of the Health and Safety Executive, which provides the standards and duty of care in relation to health and safety practices at work.

In particular, under the Work at Height Regulations, Regulation 6(3) as well as Regulation 4(1) provides that every person undertaking renovation works have a duty to properly plan out such works and take reasonable steps to prevent an accident.

Hence, what must be considered is whether such reasonable steps had been made to prevent an accident. This would seem to be answered in the negative, considering the fact that the deceased worker was not given the company’s health and safety policy nor did he receive a health and safety induction prior to undertaking work.

It is not a defence that the deceased had only started work in 3 weeks. It is the duty of FR Ltd to ensure that prior to undertaking work such inductions had in fact been carried out. Three weeks are also sufficient time for a health and safety policy to be given to him, as well as a health and safety induction.

Another breach of safety occurs due to the fact that there is no risk assessment for the work, and that further, the scaffolders were not trained to undertake such type of work, and as such are not competent to carry out renovation works with regards to erecting scaffoldings.

It is therefore humbly submitted that in failing to undertake such measures, FR Ltd is in breach of both their common law duties as well as statutory duties under the Works at Height Regulations.

The final element which must be established is whether the breach had caused any proximate damage to Miss Fortune. What must be proven here are causation as well as proximity. In this instance, it is also necessary to consider whether FR Ltd and MSc Ltd can be made to compensate for the fact that Miss Fortune can no longer perform her job as a pianist due to the injuries sustained.

In this scenario, the injuries occurred as follows. Miss Fortune who was walking past the building as a member of the public was hit by a large hammer which fell as a result of the collapse of the scaffolding platform. As a consequence of the accident, Miss Fortune suffered from a broken arm.

It is also necessary to note that while FR Ltd’s employee also sustained injuries which later cause his death, it is not necessary to consider him in this particular question, which focuses entirely on Miss Fortune’s claim for negligence against FR Ltd and MSc Ltd.

To establish damage, two elements must be shown. Firstly, causation between the breach of duty and the damage must be shown, and secondly, the damage must not be considered as too remote. These are referred to causation in fact and causation in law respectively.

Under causation in fact, it is necessary to show that the negligent act of the defendant caused or materially contributed to the damage which is complained of. A test which the courts have made use of is the But For test. In such a test, the court will direct the question as to whether such injuries would not have been sustained but for the breach of the defendant.

It would seem that in utilizing the But For test, an answer would have to be given in the affirmative. Miss Fortune would have safely walked through the area without sustaining the injury if not for the breach of duty of FR Ltd. There are also no intervening acts occurring between the point of the breach and the point of injury, and as of such, we can clearly establish causation in fact in this particular instance.

In establishing causation in law, we must consider whether FR Ltd can reasonably foresee the occurrences of such damage. In this instance, the question to bear in mind is whether the injuries sustained, that is, the broken arms by a member of the public can be reasonably foreseen by FR Ltd.

For instance, in the case of Re Polemis and Furness, Withey & Co [1921] 3 KB 560, the court had to consider an instance where a stevedore negligently dropped a plank of wood from a great height into the hold of a ship. Unknown to them, benzene had leaked into the hold, and the movement of the plank dropped caused vapours to ignite, resulting in the eventual destruction of the entire ship despite efforts to salvage it. The court held that despite the fact that total destruction was not foreseeable, it was a direct consequence of the negligence and hence the stevedore firm was held liable for the destruction of the ship.

The reasons for this harsh application is due to the fact that the courts take into account that in large companies, it is usual for companies to pay damages as they are properly insured, and in such instances, it does not matter whether the rule is fair as long as the liability established by the rule is.

This can be contrasted with the case of Doughty v Turner Manufacturing [1964] 1 All ER 98, where although claimants were injured in a work accident, they were able to recover absolutely nothing as the accident which occurred was completely unforeseeable.

Considering this two opposite cases, we can then analyse our present predicament. In this particular scenario, it is reasonably foreseeable and undoubted that failure to erect the scaffoldings properly would result in not just a potential collapse, but a likely collapse of the scaffolding to the detriment of those who are utilizing the way, which does not only include residents of the area but also members of the public. It is reasonable to expect serious injuries and even death as a result of such a collapse, and so the broken arm suffered by Miss Fortune is entirely foreseeable. It is hence submitted that the damage is not too remote.

Having established both causation in fact and causation in law, the third element for a claim in negligence to arise is sufficiently established. Thus, considering these three elements, it is submitted that FR Ltd can made to be liable for the tortuous act committed by their employee which resulted in the injuries sustained by Miss Fortune.

What we can now consider is whether FR Ltd can claim a defence through their notice which excludes liability. What should also be considered is whether the notice excluding liability may apply to prevent a claim of negligence against FR Ltd and MSc Ltd with regards to injuries sustained by Miss Fortune. It should be noted that the exemption clause completely excludes liability for any “any loss of or damage to property, death or injury to any persons howsoever caused”. This exemption however, appears nowhere in the contract between FR Ltd.

In this instance, since we have already established that liability only exist on the part of FR Ltd and not MSc Ltd, it is only necessary to consider whether the notice may act so as to exclude FR Ltd’s liability for negligence towards Miss Fortune. We shall not bother to entertain whether the exclusion of the exemption clause in the contract between FR Ltd and MSc Ltd has any effect on MSc’s liabilities, as at our present predicament, it has no bearing with regards to Miss Fortune’s claim.

The rule governing this issue is the Unfair Contract Terms Act of 1977, which provides that an exclusion clause may not operate in certain conditions. Under section 2(1) of the UCTA 1977, any attempt to exclude liability for death or personal injury which is a result of negligence will be held as void.

Thus, in this case, it would seem that the attempt to exclude liability for personal injury as a result of negligence by FR Ltd is void. It should be taken into account that the UCTA 1977 provides that liability as a result of property damage is subject to reasonableness test, and as of such, the exclusion clause is not completely void. However, in consideration of the fact that Miss Fortune did not sustain any property damage, we shall not bring ourselves to discuss this issue.

Under section 2(4)(b) of the Occupier’s Liability Act, it should be noted that liability is also provided towards the occupier of a place if an independent contractor is negligent, Under the provision,

Where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable to the danger if in all the circumstances he acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any as he reasonably ought to in order to satisfy himself that the contractor was competent and that the work had been properly done.

It is submitted that in this case MSc Ltd had sufficiently taken steps to ensure the contractor was competent. They are not under a duty to ensure that every manner of the work was properly executed.

In the case of Haseldine v Daw, the occupiers employed a competent firm of lift engineers to maintain the lift on their premises, but the claimant was killed when the lift suddenly fell from the top to the bottom of the lift shaft. The occupiers cannot be held liable since they had appointed what was apparently a firm of competent engineers to do the work. It is not within the scope of their duty, nor was it reasonable to expect them to check tediously on whether all aspects of the work had been done in a satisfactory way, as it involves technical skills which the occupier lacks.

Applying this principle, it can then be conclusively argued that MSc Ltd has no liability with regards to Miss Fortune. To conclude, Miss Fortune can claim against FR Ltd for her injuries sustained as a result of the negligence of FR Ltd. FR Ltd are unable to rely on the exclusion clause to escape from this liability.

With Reference To Legislation And Case Law, Discuss The Potential Breaches Of Health And Safety Law Arising Out Of The Above Scenario.

The issue to discuss here is whether there exist any breach of health and safety law in this particular scenario between Miss Fortune, FR Ltd and MSc Ltd.

There are plenty of regulations in the United Kingdom which regulates the use of scaffoldings. According to the National Access and Scaffolding Confederation (NASC), the Work at Height Regulations is essentially, criminal law. The regulations are governed by the Health and Safety Executive, and ensure the adherence of European as well as the British standards for scaffolding.

One of the duties of a contractor is to make weekly inspections to ensure that scaffolding has not been interfered with or deteriorated. According to Regulation 6(3) as well as Regulation 4(1) of the Work at Height Regulations 2005, there is a duty to properly plan renovation works as well as a duty to take reasonable steps to prevent an accident.

In the case of Nixon v Chanceoption Developments Ltd [2002], an employer was held to be in breach of health and safety regulations and hence liable for negligence in its failure to provide adequate safety measures, which results in an employee falling from a scaffolding which was insecure and was not equipped with guardrails.

Another duty also exist with regards to providing adequate training, which is relevant in this particular instance since FR Ltd has failed to ensure that scaffolders were experienced in undertaking such work. Under the Provision and Use of Work Equipment Regulations of 1992, employers are required to train employees in the safe use of equipments as well as in other safety measures. In the case of Koonjul v Thameslink NHS Trust [2002], employees were held to be responsible to undertake a precise evaluation of the level of risk involved in manual handling operations as well as to issue instructions to employees in the event that any precautions are impracticable.

Sam Smart, A Quantity Surveyor, Was On The Above Site And Witnessed The Incident. He Also Noted Earlier That Week That The Workers Were Not Erecting The Scaffolding Correctly. He Has A Good Relationship With The Contractor And Has The Following Concerns:

Should He Come Forward And Report What He Knows To The Health And Safety Executive.

Should He Support The Contractor If He Is Interviewed About The Incident.

The issue in this particular question is whether Sam Smart as a Quantity Surveyor has a duty to report what he knows towards the Health and Safety Executive, or whether if he is interviewed, he may choose to defend the contractor instead, despite his knowledge that the worker were not erecting the scaffolding properly.

A typical contractual duty of a quantity surveyor is to ensure that employees and workers are aware of site hazards and to take the necessary precautions. In general, any defects in the plant, equipment, scaffolding, or excavations must be reported to the site manager together with any details of dangerous practices observed.

Although a quantity surveyor is employed by the company, it is the duty of a quantity surveyor to ensure his independence by producing such a report. As of such, if he has knowledge of any defects or lack of precautions taken, he has a duty to inform the site managers, and at to later disclose his knowledge to the Health and Safety Executive should he be required to provide such information.

This is also in line with the RIDDOR Regulations of 1995, or the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations of 1995. Under the RIDDOR regulations which take effect on the 1st April 1996, there is a duty by all employer to report and make records of any work-related accidents or occurrences, and to ensure the compliance of such a duty and for employers to take the necessary steps to prevent further breaches of safety.

Health and Safety Executive Inspectors are entrusted to enforce the Health and Safety at Work Regulations, and as such, have the right to visit employers as well as employees in order to determine that risks are properly managed, as well as to settle complaints which may affect the health and safety of employees.

As of such, on request to interview Sam Smart, as a quantity surveyor, he has a duty to report all that he knows to the Health and Safety Executive in as far as it relates to matters pertaining breach of health and safety at work for employees.

With The Aid Of Case Law, Discuss The Occupier’s Liability Acts 1957 And 1984.

The Occupiers’ Liability Acts 1957 and 1984 both deals with the duties of an occupier towards those who came onto the property, and includes liability with regards to injuries sustained.

Under section 2(1) of the Occupiers’ Liability Act 1957, “an occupier of premises owes the same duty, the common duty of care to all his visitors except insofar as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitor by agreement or otherwise.”

The definition of an occupier is defined in the case of Wheat v E Lacon & Co Ltd as that of a person which exerts control over the premises.

While at first the Occupiers’ Liability Act 1957 only concerns itself to visitors, the Occupiers’ Liability Act 1984 has extended the liability of such persons to include the duty towards persons “other than his visitors”.

Under the Occupiers’ Liability Act 1957, an occupier owes a “common duty of care” towards all his lawful visitors. A visitor may in the first instance be considered a visitor but later exceeds his rights and in such cases, will fall outside the realm of visitors under the purpose of Occupiers’ Liability Act 1957.

In such instances, he will be considered a trespasser, or an unlawful visitor, and can only claim liability under the Occupiers’ Liability Act 1984, which although protects such entrants, accords a much lower standard of protection and duty of care towards these entrants.

The common duty of care which is afforded by the Occupier’s Liability Act 1957 is defined under section 2(2) of the Occupier’s Liability Act 1957, which states that the common duty of care is “the 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 by the occupier to be there”.

An instance of a breach of the common duty of care can be seen in the Glenie v Slack & Others, where the owner and occupier of an unsafe track built for motorcycle side-car races were held to be in breach of such a duty, where the track and fencing were inadequate and unsafe, resulting in the death of the passenger in a side car.

Hence, the duty is for the occupier to ensure that the visitor is made safe. Note that there is no duty to actually keep the premise safe, and as such, instead of taking precautions to ensure the premise is safe, an occupier may choose to instead put warning signs in order to make visitors safe.

With The Aid Of Case Law, Discuss And Evaluate The Current Legal Ingredients Of A Contract. To Answer This Question You Should Examine The Concepts Of: Invitation To Treat, Offer, Acceptance And Consideration.

For a contract to form, 5 elements must be satisfied. The first element is that there must be a formation of the contract. Secondly, such contract must come with considerations from both parties to the contract. Thirdly, there must be an intention to create legal relations. Fourthly, both parties must have the capacity to contract. Finally, there must be certainty in the terms of the contract, in the sense that such contracts must be possible to be carried out.

For the first element, the formation of a contract is inferred from the existence of an offer and acceptance. The requirements of offer an acceptance depend on whether an offer is a unilateral offer or a bilateral offer. For instance, in unilateral contracts, an obligation is made by one party, acceptable by anyone who wishes to take up such an offer. In the case of Great Northern Railway Company v Witham (1873) Court of Common Pleas LR 9 CP 16, the unilateral contract offer to pay someone £100 if they can walk between London to York. The difference between unilateral contracts is that the person accepting is not bound to complete the task upon acceptance. The only obligation which arises is on the part of the offeror, who is bound to complete his promise upon the successful completion of consideration by the offeree. Unilateral offers may also be made to the public at large, as from the case of Carlill v Carbolic Smoke Balls Co (1893) [1893] 1 QB 256 where advertisement stated that anyone who uses their smokeball and still caught flu would be paid £100.

An offer must be differentiated from an invitation to treat. In general, advertisements for bilateral contracts are simply invitation to treat, which invites people to make an offer, and not an offer by itself. In the case of Grainger & Sons v Gough [1896] AC 325, 334, the court held that circulation of a price-list by a wine merchant is not an offer for sale but merely an invitation to treat.

Acceptance of an offer must be unconditional, otherwise it would be deemed as a counter offer. This can be seen in the case of Tinn v Hoffman (1873) 29 LT 271, where the court held that if one party offered to sell 1, 200 tonnes of iron, the party accepting cannot choose to only order 800 tonnes. Acceptance must also be communicated for an offer to take effect. This is on the authority of the case of Entores Ltd v Miles Far East Corporation [1955] 2 QB 327. In the case, Lord Denning expressed that if A shouts and offer to B, and B attempts to yell back an acceptance which is muffled by the sound of a noisy aircraft, there will be no conclusion of the contract.

Contracts must be supplemented by considerations, that is, parties must take up obligations in consideration of a benefit which they would obtain under the contract. These considerations must be sufficient, and must be of economical value, though it may not need to be adequate. This can be seen in the case of Chappell v Nestlé Co. Ltd [1960] AC 87, where the court held that a contract was concluded where customers could get a copy of a song record by sending in 1s 6d as well as three wrappers from Nestlé’s bars of chocolate. The court held that such consideration is sufficient. It need not be adequate compensation compared to the obligation undertaken.

In general, contracts must be intended to create legal relations. As of such, there is a rebuttable presumption that commercial agreements intend itself to be bound, except in cases involving honour clauses such a contract of lottery or pools company. There is also a rebuttable presumption that there is no intention to be bound with regards to social as well as domestic agreements. An example is the case of Balfour v Balfour [1919] 2 KB 571, where the court held that there was no intention to create a binding contract between a husband and wife. This presumption is again rebuttable, for instance in the case of Peck v Lateu [1973] Vol. 117 Sol. Jo. 1857, where the court found an intention to be legally bound in a social agreement where two women agreed to share profits won by bingo between themselves.

Contracts must also be capable of being contracted. Minors are not bound to any obligations under a contract, except with regards to the supply of necessary goods and services. This is under the Minors’ Contract Act of 1987. Similarly, mentally incapacitated persons are not bound to a contract, nor will a contract be bound when it is formed where one of the party is of unsound mind, for instance when one of the parties is drunken.

With The Aid Of Case Law, Discuss The Key Differences The Law In Respect Of Public And Private Nuisance Law.

According to Romer LJ in the case of Attorney General v PYA Quarries Ltd. (1957) 2 QB 169, public nuisance are an act which “materially affects the reasonable comfort and convenience of life of a class of Her Majesty’s subjects”.

Private nuisance meanwhile, protects against the physical interference of the use and enjoymentof a land. It complements the tortof trespass, as well as offering options for action where a claimant would otherwise be unable to succeed in an action for trespass. An example of a tort of private nuisance can be seen in the case of Khorasandjian v Bush [1993] QB 727; [1993] 3 All ER 669, where the Court of Appeal held that the courts have the power to grant injunctions in order to restrain defendants from pestering claimants by making nuisance telephone calls.

It should be noted that another key difference is that, while public nuisance are both a tort and a crime, private nuisance are only actionable as a tort. This is because a tort of public nuisance affects the subjects of a country, as opposed to private nuisance, which focuses on the private interference of a personal property, such as land or crops.

For public nuisance, what a claimant must prove is special damage over and above the public. On the otherhand, for a private nuisance action to succeed, the claimant does not need to prove any special damage, so long as some form of damage, tangible or not, are experienced.

It should be noted that exemplary damage does not avail a public nuisance. Prescription is also a defence which is available only with regards to private nuisance, and not for public nuisance. However, many defences avail both public nuisance as well as private nuisance, such a defence of statutory authority.

With regards to prescription, a defendant may escape a liability in private nuisance through pleading a prescriptive right to commit the nuisance if the nuisance have continued on for 20 years without interruption. This is in contrast with public nuisance, where a defendant may nevertheless be held liable despite the absence of objections.

An example of this defence of prescription can be seen in the case of Sturges v Bridgman (1879) LR 11 Ch D 852, where the defendant had operated a confectionary manufacturing business for more than 20 years when the claimant built a new set of consulting rooms in his garden immediately adjacent to the building which housed sweetmaking machinery. The court held that although the defence was available, it needs to run 20 years from the date at which the nuisance began, and not which the reason for the nuisance began. In this case, the date ran from the use of the rooms as a consulting rooms and not from the date of operation of confection

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