Wrong tort law is the law
An Introduction To Law
The word `tort' is derived from the latin word `tortus', meaning a `wrong'. Tort law is the law concerned with allowing the victims of harmful actions, whether caused deliberately or by negligence to claim compensation.
In order to advise Shane who, if any one, he can sue for compensation for his injuries. It is important to discuss what roles the other parties played in the accident.
Warne is an employer of an independent contractor (Hingis Ltd) who are a firm specialising in tree management. When an individual causes injury directly to another they will be liable for the tort committed. But when a person is liable for a tort committed by another it is called vicarious liability. For example if an employers, employee commits an act while at work then the employer can be held vicarious liable.
Generally an employer or client in this case is not held vicariously liable for tort committed by independent contractors. The claimant normally will have to sue the contractor.
However there are exceptions to the rule if the circumstances are an extra-hazardous activity.
For example in Honeywill and Stein v Larkin Bros Ltd (1933) Honeywill engaged Larkin to take photographs of the interior of a cinema. Larkin used a flashlight which involved the ignition of magnesium powder. The camera was placed too close to a curtain on the stage and the entire theatre caught fire. The Court of Appeal held that the taking of photographs in this way was an 'extra-hazardous' activity for which Honeywill could not delegate responsibility to the photographer, and thus remained liable to the owners of the cinema for the damage caused.
In Salsbury v Woodland (1969) a case which is very similar to our case. The owner of a house employed a tree-felling contractor to remove a large tree in his front garden. The contactor removed the tree in a negligent manner which broke a pair of telephone wires running across the garden which left the wires in the road causing an obstruction. Salsbury went into the road to remove the wires when a car approached at speed. Salsbury, realising that a collision was inevitable, threw himself onto the grass verge but his fall caused a tumour in his spine to bleed which brought about paralysis. Salsbury sued the house owner, the tree contractor and the car driver. The Court of Appeal held that the general rule should apply; namely that the householder should not be liable for the negligence of the tree contractor who was an independent contractor. The removal of the tree was not work of an inherently dangerous nature and could not be treated as an exception to the rule within Honeywill doctrine.
From this case it concludes that Warne should not be liable because it was not foreseeable the contractor would mismanage the work and he acted reasonably by employing a specialist tree contactor.
Hingis are a specialist tree contactor who have mismanaged the work and broke the telephone wires leaving them trailing across the road. A firm specialising in tree management should know the risks of branches hitting telephone wires that are close by.
The tort of negligence can be summarised as:
- the defendant must owe duty of care to the claimant
- the duty must have been breached
- the breach must be the cause of the claimants damage or loss
Hingis had a duty of care to other people around them which is called the neighbour principle and was established in the Donoghue v Stevenson (1932) case. Lord Atkin said that you have a duty of care owed to your neighbour in law.
Lord Atkins response to the question ‘Who is my neighbour?' from the lawyer is ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be—persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question'
From this case it was established that if a duty of care does not already exist, a ‘reasonable man' will owe a duty of care not to injure those whom it can be reasonably foreseen would be affected by their actions.
When Hingis cut down the tree which brought down the telephone wires they breached this duty of care; as a professional this should not have happened. In Bolam v Friern Hospital Management Committee (1957) a doctor's professional judgement was made that another substantial body of other doctors would not have made and from this the House of Lords laid down standards that are expected of professional people.
Could Hingis have reasonably foreseen that the tree would bring down the telephone lines? I think that as professionals they should have foreseen this.
In The Wagon Mound case the opinion of the Privy Council was that a person is responsible only for consequences that could reasonably have been anticipated.
Martina was driving her car around the corner at speed when she hit Shane.
Section 1 (1) of the Contributory Negligence Act 1945 says ‘Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage'
The fact that Shane would not have been in the road if Hingis Ltd did not make the telephone cables trail dangerously in the road. I feel that it is a little unfair to blame Martina completely for hitting Shane.
In Gregory v Kelly (1979) the claimant was held to be contributory negligent when travelling in a car when he knew that the footbrake did not work. In this case it is clear that the claimant was contributory negligent but in our case it is not clear cut.
On the other hand Martina owes a duty of care to other road users and pedestrians, and therefore could be liable regarding any lack of duty of care. As she was perhaps driving too fast and the incident was around a corner where she obviously could not see clearly around.
Shane as the reasonable man faced with an emergency of a potential traffic accident, took an instinctive decision to lift the wires to the side of the road.
Shane could be referenced to a rescue case in law called Cutler v United Dairies (London) (1933) in which the claimant was injured trying to help the driver of a milk float whose runaway horse had come to rest safely in a field. The court held that the danger was over by the time the claimant carried out his heroics. The horse as I see it is the equivalent of the wires on the road in our case.
Volenti non fit injuria is a rule that means a person cannot usually sue for damages when he consented in the first place to whatever it was that caused the damages. If someone willingly placed themselves in a position where they may be harmed, they cannot then sue if harm does in fact happen. It could be argued that Shane as someone with a pre-existing back condition go into the middle of the road to remove the wires?
The 'volenti' only applies to the risk which a reasonable person would consider them as having assumed by their actions. Rescuers are unlikely to be held volenti if they sue the person who originally created the danger.
In Harrison v British Railways Board (1981) the court said that an injured rescuer could sue the person who created the danger. The rescuer was found to be contributory negligent for not following established work procedures.
My view is that Hingis is certainly negligent for the mismanaged work, but they could not have foreseen that a member of the public would run out into the road to remove the wires.
Martina is negligent for not driving with due care and attention to other road users, as she should not have been driving to a speed which would not allow her time to stop if something or someone was in the way. For example it could have been a child which had run out in the road and she needed to stop quickly.
Although Shane acted completely recklessly by removing the wires when a reasonable man may have just stopped the traffic and called for assistance. He could sue both Hingis and Martina which would lead to multiple tort feasers. If he was to sue only Hingis he would leave Hingis the choice to sue Martina for contributory negligence.
The building operations that disturb Victor in the early mornings and during the afternoon, when he is trying to give piano lessons are due to Montgomery construction Ltd carrying out renovation work on David's house. This falls into a category of nuisance in the law of tort. This is the unlawful interference directly or in directly with a person's land. The interference must be within circumstances that a reasonable person cannot be expected to tolerate which is a very difficult and complex decision by the courts to reach.
Nuisance has four different categories:
- Private nuisance
- Public nuisance
- Statutory nuisance
Victor's case is one of private nuisance as it is a neighbour's property as outlined in the case of Spicer v Smee (1946) when the judge said ‘Private nuisance arises out of a state of things on one man's land whereby his neighbour's property is exposed to danger'.
A balance must be maintained between the right of the occupier to do what he likes with his own home, and the right of his neighbour not to be interfered with.
In Christie v Davey (1893) Christie and Davey were neighbours. Christie was a music teacher that gave lessons and sometimes held musical parties. Davey objected to this, and retaliated by blowing whistles, banging on metal trays, shouting, and generally making a noise to disturb the music. An injunction was granted to Christie as Davey's conduct was purely malicious and was therefore unreasonable.
In Andreae v Selfridge & Co Ltd (1937) Selfridges failed to keep the noise and dust of building work to a minimum are were found negligent as they had conducted its operations in such a way noise and dust had interfered with the reasonable and comfortable occupation of Andreae on her premises. The contractor must take proper precautions, and see that the nuisance is reduced to a minimum as Andreae had suffered damages.
If Victor can prove that his students are not having lessons with him due to the noise than maybe he could have a case where he could claim damages to his business due to the building work noise as in the Andreae v Selfridge & Co Ltd case.
I think Victor is over sensitive because he would have a tuned ear to noise as a piano teacher. The majority of people would not be adversely affected by construction work to a neighbour's property although they may be inconvenienced.
The piano lessons in question are similar to the case McKinnon Industries v Walker (1951) where fumes from the defendant's factory damaged delicate orchids. As the fumes would have damaged flowers of ordinary sensitivity there was a nuisance. The court ruled in favor of the plaintiff because his right to enjoy his land had been damaged and therefore could also claim protection for his more unusual and sensitive activities.
The standard of tolerance is that of the ‘normal neighbour' but a plaintiff has a case in nuisance for damage even if he is abnormally sensitive.
I conclude that the best Victor is likely to achieve in court is a restriction on the early morning working hours on the site. David and Montgomery Construction are not liable for the noise as a private nuisance. The work is temporary and the complainant is sensitive. Victor as a piano teacher seems to be over sensitive to noise and the noise is just a short term issue.
This falls under occupier's liability acts (OLA) 1957 and 1984 an occupier of premises owes a common duty of care to all lawful visitors.
The definition of an occupier was discussed and clarified in Wheat v E Lacon (1966) when Lord Denning defined the "occupier" as a person who has sufficient control over the premises to the extent that he ought to realise that lack of care on his part can cause damage to lawful visitors.
He 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 coming lawfully there, then he is an ‘Occupier' and the person coming lawfully is his ‘Visitor' and the ‘Occupier' is under a duty to his ‘Visitor' to use reasonable care.'
In AMF International Ltd v Magnet Bowling Ltd (1968) the contractor was to provide and install valuable timber and other specialised bowling alley equipment. On July 21, 1964 an exceptionally heavy rainstorm flooded the building and the timber for the building work was seriously damaged. The court held that the contractor and the building owner were both occupiers of the building.
In the OLA 1957 an occupier must be prepared for children to be less careful than adults (s2(3)(a)). Therefore, if an occupier admits children to the premises the child visitor must be reasonably safe as in Phipps v Rochester Corp (1955) the Defendant was not liable to a boy who fell into a trench while walking across open ground with his sister. This was not a breach of duty as reasonable parents will not permit young children to be sent into danger without protection.
The OLA 1984 covers uninvited visitors or trespassers in (s.1(4)) it states that ‘an occupier of premises owes a duty to another in of such a risk, the duty is to take such care as is reasonable in all the circumstances of the case to see that he does not suffer injury on the premises by reason of the danger concerned.'
In British Railways Board v Herrington (1972) the board was held liable for injuries to a six year old child who had been playing on the railway line. The House of Lords held that the occupier of the railway premises owed a duty of common humanity to the child. Until this case no duty of care was owed to trespassers. The Occupiers Liability Act 1984 was then extended after this to include a duty of care to trespassers).
My advice to David and Montgomery Construction Ltd is that as one of them is the owner and the other is the builder they both are jointly occupiers of the premises and have control over the premises. Christine was a child trespasser who entered the building through an unglazed window. The site should have proper Heras fencing around it with all the correct signage for health and safety. The building itself should be fairly secure to stop trespass and for security. The window that Christine entered through should really have been boarded up. Referring back to the British Railways Board v Herrington case they could well be held liable for no duty of care to Christine.
But it must be stated that the signage that is sufficient for adults is not good enough to apply to children. That is if a sign that states no trespassing for example is it considered inadequate for a child to understand and follow.
Edgar was a lawful visitor to the site in question and under the OLA 1957 the occupier owes a common duty of care to him. Again both the contractor Montgomery and David may be considered to be the occupiers of the building.
All visitors to sites are given an induction and told of all the health and safety risks on site. I feel Edgar should have been aware of the hazards on site after this and should take the necessary precautions associated with a building site.
(s.2(4) OLA 1957 states:
where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe; and
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 for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.
I feel that wet plaster on the floor is not a sign of an incompetent tradesman but more of the nature of the job with plastering. Edgar was aware of the risks on site and any injuries sustained to him could be due to contributory negligence from lack of care. But if Edgar was on site without a site induction David and Montgomery could be held liable for duty of care to Edgar.
The rule of Rylands v Fletcher (1868) is a tort of strict liability and was laid down from the case which caused harm by escapes from land used for hazardous purposes. The defendants employed a contractor to construct a reservoir on their land. When doing this water broke through the filled-in shaft of an abandoned coal mine and flooded connecting passageways into the plaintiff's active mine nearby. The defendants were held personally liable irrespective of fault.
Judge Colin Blackburn said:
"We think that the true rule of law is, that the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the Plaintiff's default; or perhaps, that the escape was the consequence of vis major, or the act of God; but as nothing of this sort exits here, it is unnecessary to inquire what excuse would be sufficient."
This rule opens up an opportunity for the courts to apply all liability upon the owner of the land who had not intended for the escape and or damage. It is a good example of a loophole that allows the independent contractor to get away with negligence and the owner of the land is held accountable for everything.
Strict liability is imposed under the liability for fire and to a degree for animals.
Defences can be:
If the claimant has consented
Default of the claimant
Act of a stranger
Act of God
Rylands v Fletcher is very useful where the defendant has done everything that he could possibly do to stop something happening.
Brewer Consulting ‘Extra hazardous liabilities' [online] Available at: http://www.brewerconsulting.co.uk/cases/CJ9619NE.htm [accessed 9th May 2009]
WordPress ‘Duty of care in torts'[online] Available at: http://www.legal-history.com/?p=42 [accessed 9th May 2009]
The K Zone ‘Bolam v Friern Hospital' [online] Available at: http://www.kevinboone.com/lawglos_BolamVFriernHospitalManagementCommittee1957.html [accessed 10th May 2009]
Law teacher ‘The tort of negligence' [online] Available at: http://www.a-level-law.com/tort/Negligence/Flowchart.pdf [accessed 10th May 2009]
Office of public sector information ‘Law Reform (Contributory Negligence) Act 1945 (c.28)' [online] Available at: http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1945/cukpga_19450028_en_1 [accessed 14th May 2009]
Swarb ‘Nuisance - 1930- 1959' [online] Available at: http://www.swarb.co.uk/lisc/Nuisn19301959.php [accessed 14th May 2009]
Fenwick Elliott ‘nuisance and the builder' [online] Available at: http://www.fenwickelliott.co.uk/files/docs/articles/html/nuisance.htm [accessed 14th May 2009]
Loughborough University ‘IDENTIFICATION OF ENVIRONMENTAL RISKS' [online] Available at: http://www2.ing.puc.cl/~icccon/abstracts/PDF/Track5/T5-P22.pdf [accessed 16th May 2009]
Swarb ‘Torts 1960-1969' [online] Available at: http://www.swarb.co.uk/lisc/TrtOt19601969.php [accessed 16th May 2009]
Law teacher ‘AMF International Ltd v Magnet Bowling Ltd' [online] Available at: https://www.lawteacher.net/cases/neg15.htm/file-91.php [accessed 16th May 2009]
Card,R. Murdoch, J. Murdoch,S.,2003. Estate management law. 3rd ed. New York: Oxford University Press.
Askey,S. McLeod, I., 2006. Studying Law. 2nd ed. Hampshire: Palgrave Macmillan
Paper 6041 (2002) General liability, CEM
Paper 6042 (2002) Direct and indirect interference with land, CEM
Paper 6043 (2002) Negligence, CEM
Paper 6044 (2002) Defective premises, CEM
Paper 6045 (2002) Breach of statutory duty, CEM
Paper 6046 (2002) Strict liability, CEM
Mullis,A. Oliphant,K. 2003. Torts 3rd ed. Hampshire: Palgrave Macmillan