TORT LAW
a) Homer was employed as a factory worker by Springfield Desserts, which specialises in the manufacture of doughnuts. Due to carelessness on the part of Springfield Productions, a large fryer used to cook the doughnuts exploded. A piece of debris hit Homer, causing serious injuries. Selma, who is Homer’s aunt, was also employed by Springfield Desserts. At the time of the explosion, Selma was sitting in her office, situated several hundred metres away. Selma witnessed the explosion via a web cam located on the factory floor and immediately feared that her favourite nephew had been killed. Homer and Selma have both been diagnosed with a recognised psychiatric illness.
Advise the parties as to any claims in tort they might have against Springfield Desserts.
Answer (A)
Negligence occurs when someone injures or causes a loss to another because of their carelessness or reckless behaviour. In the case Donoghue v Stevenson [1932] it shows negligence state. Furthermore relating it to Homer in this situation negligence has occurred because of the injury caused to Homer. Selma was injured too due to proximity to the harm that seems to be within the scope of liability.
Psychiatric injury can be defined as a sudden shock which could be by mental harm, suffering, and damage to a person as a direct result of failure to act. In a psychiatric injury there could be a primary and secondary victim. In the case of Homer, there was psychiatric injury or nervous shock which occurred. Primary victims are those who are involved or injured or died as a result of an action or inaction as in Alcock v Chief Constable of South Yorkshire 1997. Homer suffered as a primary victim of psychiatric injury due to fryer which had exploded on him as he was making doughnuts. Secondary victims in a psychiatric injury are those not within the physical zone of danger but witnesses of horrific events like Selma who had witnessed the explosion of her nephew’s incidence, Her Psychiatric injury must be a resulted from the shocking event that her favourite nephew had been killed.
Damage, in a legal sense, is the sum of money the law imposes for a breach of some duty or violation of some right. There are two types of damages; compensatory and punitive. In order for a claimant to receive damages from nervous shock due to the negligence of the defendant, they must prove all the elements of the tort of negligence.
A compensatory damage is a sum of money awarded in a civil action by a court to guarantee a person for the particular loss, or injury suffered as a result of the unlawful conduct of another. The claimants have to prove that he has lost so he can be awarded with compensation, Punitive damages, it may be awarded by a jury or a judge. In case of Selma, she would have compensatory damages because of injury suffered due to the shock of being witness to her nephew Homer’s injury. In the case of Homer he would have the compensation based on punitive damages for the negligence and injury caused by the doughnut fryer which exploded.
Homer claims in tortious that he had been injured due to lack of care from the employer to the employee. The spring field desert factory also has to compensate Selma which is homer’s aunty for being a witness to the injury caused to her nephew that caused her shock and lead to psychiatric illness.
My advice to Selma and Homer is that both of them should pursue their legal right. They were injured on duty as Springfield Desserts has a legal duty to protect its’ employees. Consequently Springfield Deserts has to bear the consequences. Homer was a direct victim while Selma has a proximate cause to pursue. They should sue them and claim damages accordingly.
B) Paul wished to invest in the stock market, so he sought the advice of his accountant, Ringo. Paul was advised that PC Universe plc would be a good investment choice. However, Ringo warned Paul to seek further advice before purchasing any shares. Paul read in the Financial Bugle (a respected financial newspaper) that shares in PC Universe plc were under-valued and were likely to rise significantly since the company was poised to announce record profits. Paul invested in PC Universe plc. Shortly afterwards, they were put into liquidation and Paul lost all his money.
Advise Paul as to any claims in economic loss he may have against Ringo and The Financial Bugle.
ANSWER (B)
Pure economic loss occurs when there is negligent act to another party which is not accompanied by any physical damage to a person or property. Common categories of pure economic loss are expenditures, profitability, loss of profit or loss of some other forms of financial profits. In the case of Spartan steel and Alloys v Martin & co (contractors) (1973), relating it to the case of Paul he has been involved in economic loss which deals with his money which he used to invest in the Pc Universe plc and in the case of Hedley byrne co v Heller partner LTD there was a defamation act and a duty of care which arose due to careless statement that caused pure economic loss. Defamation is defined as false or untrue statement about a person. It is usually stated as a fact not opinion. This false statement could be from a person, magazine, or political organization which causes damage and destroys the reputation in the community. Defamation could be Slander or Libel. Libel is defamatory statements, posts which are in prints or writings and is published to the public that could be malicious, relating it to the case of Paul, he was led astray with the false statement [misstatement] which was on the newspaper that Pc Universe plc were likely to have a significantly rise in profit. This is negligent misstatement.
Furthermore to support the case which stands for a public liability in the case of Henderson V Mernett syndicate Ltd 1995, it shows negligence management of investment. This states that the accountant (Ringo) would be liable for the advice to an extent because he had warned Paul to seek further advice before any investment into PC Universe plc. But because of the information Ringo had given, he had assumed a voluntary responsibility by offering that advice to Paul. Paul relied reasonably on that advice from Ringo who was his accountant and bought the shares which lead to pure economic loss. When this is referred to the case of Anna v Merton London Borough council (1978), it is a pure economic loss. Paul has to be compensated by the newspaper for false information that led him to economic loss of his money.
Thus my advice to Paul is that he has to sue PC Universe plc for negligent misstatement and Ringo for the misleading advice.
C) Anthony and Declan were both heating engineers; during the course of a 20 year career they worked for No More Chills Co for 15 years and Hot Stuff Heating Ltd for five years. Anthony and Declan’s former employer’s both carelessly exposed them to asbestos during the course of their employment. No More Chills Co. was recently declared bankrupt. Anthony is diagnosed with mesothelioma and Declan is diagnosed with asbestosis.
Advise the parties as to their rights and responsibilities.
ANSWER C
Mesothelioma and asbestosis diseases are caused by prolonged exposure to inhalation of asbestos. The former is a type of cancer that damages the lining of the lungs that causes difficulties in breathing, a swollen abdomen and weight loss. Asbestosis could lead to Mesothelioma in advanced stages.
The mesothelioma damages amendment as it is known, is now part of the compensation act 2006 section 3 (1) which states that if a reasonable person acts negligently (or breach of the law), as a result of which someone else is exposed to asbestos and develops mesothelioma, then the responsible person is liable for all the damages caused even if the victims had also been exposed to asbestos by someone else. In the case of Fairchild v Glenhaven [2002], Fairchild’s husband developed mesothelioma as a result of asbestos poisoning. He worked for two consecutive employers where he was exposed to asbestos in his duty of work. Both employers breached their duty of care for him by exposing him to asbestos, it is stated that the employers are liable for anyone who trespasses their land or under their care, relating it to the case of Anthony and Declan who were employees of No More Chills Co and Hot Stuff Heating Ltd were supposed to be showed employee and employer’s duty of care. In the case of Anthony who had suffered the mesothelioma disease he had suffered it from both jobs he had done which shows that it had been accumulating in his system.
In the case of Holtby v Brigham & Cowan [2000] the claimant was exposed to asbestos during his working life and suffered asbestosis. He worked for the defendant for 12 years but worked for other employers who each exposed him to asbestos for periods of up to five years. The trial judge assessed his damages and then reduced the damages to reflect the number of years the claimant had worked for the defendant. The claimant appealed contending under the principles in McGhee and Wardlaw that he was entitled to full compensation; using the above case Declan had suffered asbestos disease relating that from the jobs he had worked.
Using the quotes novusactusinterveniens, which is a term used in the context of causation. It is an act or event that breaks the causal connection between a crime committed by the defendant and the subsequent problem. Using the novus actus interveniens, the causation was not broken by Anthony or Declan but it was contributory negligence from the work.
Using the compensation act 2006 in Section 3, it reverses the common law on allocation of damages in various mesothelioma claims arising from unlawful exposure to asbestos. In Barker v. Corus UK Ltd the House of Lords held that the parties who contributed to the risk were severally but not jointly liable. In most cases, you can claim compensation from your employer, for failing to provide such protection and the consequences suffered by you. Even if you has severed existence with the company or the company is bankrupt. It is still possible to pursue a claim.
My advice is that Anthony and Declan would claim for damages and loss from both No More Chills Co and Hot Stuff Heating Ltd.
D) Ronnie was employed as a fork lift truck driver by Bricks R Us, a manufacturer of building materials. On a number of occasions, Ronnie had complained to his manager that a safety screen on the front of his fork lift truck had been removed. Bricks R Us refused to install a new safety screen. While operating the fork lift truck, a number of concrete slabs fell on Ronnie, causing severe head injuries. Ronnie had always refused to wear a safety helmet. The head injuries suffered by Ronnie caused a severe psychiatric illness, which made him prone to bouts of anger and aggression. When travelling on a bus, another passenger accidently stepped on Ronnie’s foot. Ronnie stabbed the passenger and was eventually sentenced to life imprisonment for murder.
Advise the parties as to what defences, if any, are available.
ANSWER D
It is obvious there was an unsafe condition in the Bricks R Us factory, a manufacturer of building materials. Ronnie had complained and Bricks R Us refused to reinstall a new safety screen. On the other hand Ronnie breached the unsafe act by always refusing to wear his safety helmet. Unsafe act is one that deviates from a generally recognised safe way or specified method of doing a job and which increases the probabilities for an accident.
Negligence can be defined as the lack of proper care which could lead to loss, injury and damage to a person. Negligence, reflecting it to Ronnie in the case of Donoghue V Stevenson 1932 shows that the defendant owes them duty of care to prevent damage or negligence. Bricks R. Us owes Ronnie a legal duty to provide him with a safe working environment while Ronnie may also owe the Bricks R Us a legal duty to act with a reasonable care in wearing the safety helmet accordingly as provided. There were some breaches and Ronnie suffered severe head injuries
The head injuries suffered by Ronnie caused a severe psychiatric illness, which made him prone to bouts of anger and aggression. Psychiatric injury can be defined as sudden horrifying events which could be inflicted directly or indirectly by a person (by intentional or negligent actions or omission of another). Alcock V chief constable of south Yorkshire police (1991). In the case of Ronnie he suffered psychiatric injury, the incident which occurred while he was on duty working for Bricks R Us Company. In the case of Ronnie he had suffered as a primary victim because he had gotten severe head injury which led him to psychiatric illness (Page V Smith) (1996). Therefore in this case, it states that the employee/employer relationship does not automatically create a primary victim but in the case of Ronnie it did which means negligence must have occurred because Ronnie has been complaining to the manager that the safety screen on the front of his fork lift truck had been removed and needed a replacement. Occupiers’ liability generally refers to the duty owed by land owners to those who come into their land. The occupier of property owes a duty of care to people who visit or trespass on his land, and can be held liable in court if he breaches this. It is the duty of care for employers to take care of their employee. Furthermore using the standard of care of section (1) 4 occupiers’ liability act 1984 the duty is to take such care as is reasonable in all the circumstances of the case to see that the other does not suffer injury on the premises by reason of danger which was inflicted on Ronnie due to the lack of standard of care from the manager. White and others V Chief constable of south Yorkshire (1999) shows that those who are physically damaged or injured in an accident caused by another person’s negligence as in the case of Ronnie who was put in danger of physical injury.
In the case of Ronnie’s working duty the case of Barnett V Chelsea and Kensington hospital management committee (1969) in the ‘but for test’ which shows the foreseeability of the negligence and to prove the high level of danger using the case of Hughes v Lord Advocates 1963, Bricks R Us would use the test, stating that the cause of Ronnie’s severe injury was the lack of responsibility he lacked by not using a helmet.
My advice to Ronnie is to ask for compensation due to the psychiatric harm caused by the lack of standard of care from the employer to him the employee. He should also ask for a retrial of the murder case because his bouts of anger and aggressions were beyond his control and stemmed from his psychiatric injury from the accident using the compensation act 2006 section 1 and 2.
I would advise the manager of Brick R Us to defend with the point that if only Ronnie had worn his helmet he would not have suffered psychiatric injury at least to such an extent. In Ronnie’s case the contributory negligence will further explain that damages reduced under the law reform (contribution negligence act 1945) where and when the defendant fails to take responsibility of their safety.
E) Following a collision with a car driven by Elizabeth, John suffered a serious lower back injury and as a result was forced to resign from his job as a golf coach, where he earned £100, 000 per year. He has taken on a part time job in a fast food restaurant and now earns £10,000 per year. John experiences constant pain and discomfort and is no longer able to play golf.
Elizabeth has accepted liability for the injuries suffered by John.
Advise John on how the courts will assess the level of damages he is entitled to.
Answer
Elizabeth accepted primary liability for the injuries suffered by John which was an act of negligence. Negligence can be defined as an act of carelessness or failure to exercise duty. Negligence involves harm caused by failure to act. It is not an intentional harm to a person. (donoughue V stevenson) 1932. Using the case of barnert v Chelsea and Kensington hospital 1969, it shows the test of how duty of care can be broken down into two parts; it could be the harm foreseeable or in relationship of proximity. In the case of John and Elizabeth a relationship of proximity established by duty of care occurred due to the fact that it was under the care of Elizabeth who was driving him when he suffered a serious back injury. Psychiatric injury is defined as a sudden horrifying event or injury which can be directly or indirectly inflicted on a person (by intentional, negligent actions or omission of another). In the case of John he was a primary victim of psychiatric illness because he suffered a serious back injury as result of the way Elizabeth had driven. (alcock v chief constable of south yorkshire).
Damage is defined as the amount to the loss suffered because of breach of a contract by a defendant. There are different types of damages. In a Compensatory damage it is defined as a damage that provides a claimant with an amount that is necessary to replace a loss or compensate an injury. Compensatory damages are issued only to the limit of loss and not more, while the Future damages provide a reasonable apprehension of a loss or injury in the future because of a negligent, malicious act or omission. In the case of John he has to be given compensatory damage and future damage because he had been damaged and can no longer work as a golf player where he earned a lot. He has now limited job opportunity due to his inability to move around and it will continue to damage his career opportunity.
My advice to John is that the court might access the case from position of physical illness and psychiatric illness and he has the potential of claiming compensatory and also future damage because he has been damaged considerably.
Reference list
- Alcock v Chief Constable of South Yorkshire Police [1991] UKHL 5
- Alcock v Chief Constable of South Yorkshire Police, (1996) 1 AC 310
- Anns v Merton London Borough Council [1978] AC 728 (HL
- Arnold F, The Law Of Damages And Compensation (Butterworth 1919)
- Barker v Corus (UK) plc [2006] UKHL 20
- Barnett V Chelsea and Kensington hospital management committee (1969) 1 QB 428
- Donoghue v Stevenson [1934] AC 562
- Elliott C and Quinn F, Tort Law (Longman 2001)
- Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22
- Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465
- Henderson v Merrett Syndicates Ltd [1995] (HL(E)) 2AC 145
- Holtby v Brigham & Cowan [2003] COURT OF APPEAL, 3 ALL ER 421 (COURT OF APPEAL)
- Horsey K and Rackley E, Tort Law (Oxford University Press 2009)
- Hughes v Lord Advocate [1963] AC 837
- McBride N and Bagshaw R, Tort Law (Pearson/Longman 2005)
- Page v Smith (1996) 1 AC 155
- White and others V Chief constable of south Yorkshire 1998
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