The Legal Environment of Business and Unification of Tort Law - Essay Example

? Case Study EWCA Civ 1237 The case involved an appeal by the plaintiff (Mrs. Janet Dawkins) against the judgment of a lower court (Southampton County Court) regarding the personal damages claims by the appellant.1 Mrs. Janet Dawkins was involved in an accident while she was travelling in international waters, in a P & O cruise ship owned and operated by the defendant. The appellant slipped and fell on the cruise ship while walking through the Conservatory restaurant located in the ship. On falling on the restaurant’s floor, the appellant, Dawkins, sustained soft tissue injuries in her knee and wrist. She claimed that there was a small pool of fluid, which made the floor slippery making her slip. The appellant later took the matter to Southampton County Court claiming damages under Occupiers’ Liability Act 1957. Considering the ship’s location during the accident, the claim would be heard only under the Athens Convention on Carriage of Passengers and their Luggage by Sea 1974, which was part of Wales and England’s law already owing to the provisions of section 183 of the Merchant Shipping Act 1995. The lower court (which is the county court) handled the case as stipulated by the general legal process. The case followed the general legal process as the accident had happened within the county and the case therefore heard in a county court. Failure to make judgement led to a higher court (Royal Court) to resolve it as required by the legal process. The defendant on his part claimed that he had put in place reasonable measures to ensure that the accident did not take place because they failed to observe reasonable care.2 When the Recorder conducted an investigation regarding the claim by the appellant about the spillage of liquid on the floor, It was discovered that the defendant had put in place a system of frequent inspection of the floor in order to avoid causing injuries to the clients that would arise owing to wanting of care. It was the appellant’s responsibility to justify the lapse on the system of the inspection with the Conservatory restaurant, as this was the only reason to prove negligence on the part of the cruise ship. Relying on the provisions of the Ward v Tesco Ltd, the Recorder dismissed claims for damages by the plaintiff, Mrs. Janet Dawkins. In line with the case law, the mater was latter appealed to the Royal Courts of Justice before lord justice Moore-Brick and Lord Justice Aikens. The court of appeal judges tried to establish the burden of proof on the side of the appellant that damages the defendant’s act of negligence brought on suffering to the appellant. Banks state that using the test Ward v Tesco Ltd,3 they realized that the defendant could not establish the evidence that could prove the presence of necessary systems for ensuring the safety of the passengers. According to the court of appeal, judges’ failure to provide evidence by those responsible for overseeing implementation of the safety system of inspection and observation is a clear justification that no one could establish the time span of which the liquid had been on the floor. In other words, the burden of proof lied with the defendant, P & O cruise ship, to prove that the gap between the liquid spilled on the floor, and the time the accident took place was too minimal to allow for quick safety measure response by the staff charged with responsibility of overseeing the safety system.4 As such, the Court of appeal judges overturns the ruling of the Recorder in Southampton County Court. Liability of Bresco The liability of Bresco, a local supermarket, arises under the Company’s Act 2006. 5 Bresco, being the occupier of the supermarket store, owes all the visitors entering the building a duty of care. This means that Bresco should eliminate any hazard or acts that may cause injury to any party entering the premises, within the premises or leaving the premises. Negligence on the part arises if it fails to do that. Breach to observe reasonable care can lead to the tort liability of negligence.6 Tort liability of negligence arises when an individual’s action or omission results in injuries to a third party7 according to Holmes and White.8 In other words, failure to exercise a reasonable amount of care that a careful person would have used in order to avoid harm is tantamount to negligence. In order for a plaintiff to prove negligence on the side of the defendant, he or she must prove a few things. They include, (i) the accused owed him or her the common duty of care; (ii) that the defendant has violated the duty of care either through omission or omission; (iii) the plaintiff has suffered injuries owing to violation of such duty if care (iv) the injury occurred probably due to the action or omission of the defendant.9 There is an examination of Bresco’s liability under the tort liability of negligence for both the cases of Ada and Billy. Bresco, being the store’s occupier, had to put in place necessary, safe guards that would ensure that all the visitors into the store stayed safe during their time inside the premise. It was the responsibility of Bresco to ensure that its floor stay safe for all the visitors by ensuring that there were no substances on the floor to cause injuries to the visitor, Mrs. Ada. For instance, it would be reasonable for Bresco to ensure that the floors of the supermarket were clean, tidy and continually observed. This would ensure no squashed tomato on the floor to harm Mrs. Ada. On the case of Billy, Bresco ought to have taken reasonable care by ensuring that automatic doors could support children or any other person with limited knowledge on how to operate the automatic door. Bresco is liable under the tort of negligence, as per the provisions of the Occupiers’ Liability Act 1957, due to failure to put in place safety system on the door and the floor of the supermarket. Bibliography Anita Stuhmcke, Essential tort law (2nd edn, Routledge 2001) 38 Arthur Best and David W. Barnes, Basic tort law: cases, statutes, and problems (2nd edn, p.cm, Aspen Publishers 2007) 128 Dawkins v Carnival Plc (t/a P & O Cruises) [2011] EWCA Civ 1237, [2011] All ER (D) 85 (CA) Harpwood, Vivienne, Modern Tort Law (7th edn, p.cm, Routledge-Cavendish 2009) 119 Holmes Oliver and White Edward, The Common Law (Harvard University Press 2009) 144 Larson Aaron, ‘Negligence and Tort Law’ (Laws offices of Larson Aaron, October 2003) accessed 5 January 2011 Marsh B S and Soulsby J, Business Law (8th edn, Nelson Thornes Ltd 2002) 206 Pierre Widmer, Unification of tort law: fault (Kluwer Law International, 2005) 131 Roger E Meiners, Al H Ringleb, and Frances L. Edwards, The Legal Environment of Business (Cengage Learning, 2011) 152 Sally Ramage Dabydeen, Legal and Regulatory Framework: For Business in the UK (iUniverse 2004) Ulrich Magnus, Miquel Martin-Casals, and W H van Boom, Unification of tort law: contributory negligence (Kluwer Law International 2004) 95 Read More