Reparation Law and Evidence - Assignment Example

ASSIGNMENT MARK MCGIBBON ID: 0611115 Answer: This question raises some issues from negligence, vicarious liability and damages. In order to answer this question it is necessary to have an understanding of negligence, duty of care, and breach of duty, causation and remoteness. The most important points I this assignment related to vicarious' liability, multiple liability or causation, and personal injury. Here the main function will be to advise Anne, Betty, Jim, and Sodapops on whether they have claim/claims for damages arising out of the above scenario, and if so, what the likely outcome of such claim/claims is likely to be. In 1934 Lord Wright said in Lochgelly Iron and Coal Co v McMullan1 that in strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing. The situation in question states that Mike was travelling on the road perpendicular to Betty and continues to go through the red light as Betty starts to go and the resulting consequence. It needs to be considered whether a duty of care is owed or whether there is a breach of duty on Mike's part. Assuming that the injuries to Anne and Betty bare caused by Mike's negligence and that harm is not too remote, Mike will be liable in damages to both Anne & Betty and if Betty can give evidence then Betty being able to recover damages under the Law Reform (Miscellaneous Provisions) Act 1934 and Fatal Accidents Act 1976, respectively. Whether Betty has any contributory negligence or not needs to be ascertained. To impose liability upon Mike there is a need to justify his negligence. It is established that all road users owe a duty of care to other road users (Nettleship v Weston2). It follows that Mike and Sue have a potential duty to Betty and Anne in respect of the harm both suffer. That harm, respectively personal injury and property damage suffered by Betty and personal injury suffered by Anne, both of which appear to be foreseeable consequences of a road traffic accident. Whether Mike and Sue are in breach of the duty of care owed to Betty & Anne requires consideration of the magnitude of risk, the seriousness of the harm suffered, the utility of the defendant's conduct and any precautions, which might have been taken guard against the risk. Betty does not take legal action against Mike trusting on Julian's advice. Julian is a corporate solicitor who solely deals with mergers and acquisitions. Betty asked him for legal advice in relation to her accident when Julian had came around to visit her. However Betty mentions her situation to another solicitor who tells her she could have received a sizeable amount in damages if she had gone ahead with a claim against Mike timeously. In such condition Betty need to consider Julian's liability and Anne may sue against Mike for damages personal injury claims, medical and other expenses, lose of expectation or and lose of earning. To impose liability or take reasonable steps against Julian cases need to be examined which indicated whether Julian owes any duty towards Betty. In Murphy v Brentwood District Council3, the House of Lords held that the council was not liable on the basis that the council could not owe a greater duty of care to the claimant than the builder. In doing so the court also overruled Anns v Mertonlondon Borough Council4 and the two-part test, preferring instead a new three-part test suggested by Lords Keith, Oliver and Bridge in Caparo v Dickman5]. In order to impose liability on the employers, Betty has to established foresight, proximity and fairness and it is the current test. In Caparo industries v Dickman [1990], the shareholders in a company bought more shares and then made a successful takeover bid for the company after studying the audited accounts prepared by the defendants. They later regretted the move and sued the auditors claiming that they had relied on accounts, which had shown a sizeable surplus rather than the deficit that was in fact the case. The HLs held that the auditors owed no duty of care since company accounts are not prepared for the purposes of people taking over a company and cannot then be relied on by them for such purposes. 1) It was reasonably foreseeable that a person in the claimant's position would be injured. There was sufficient proximity between the parties. Employers owed some duties to employees. 2) It is fair, just and reasonable to impose liability. After the Caparo test Betty and Anne may satisfy the three criteria. Then it will be a vital question whether the traffic was a breach of duty or not. The second problem is who has the right to sue. Betty and Anne suffered severe personal injury so they can sue but the problems arise in regards of Jim and Sodapops. If Sodapops sues on behalf of Anne then it will justify imposing liability to the defendants such as Mike. Here it will be discussed considering the relevant case laws. Bolton v. Stone test may be applicable to prove breach of duty. According to this test employers are not liable. According to Lord Goff in Smith v Littlewoods Organisation Ltd.,6 "the common law does not impose liability for what are called pure omission". This means that there is no general duty of care in tort to prevent harm occurring to another. But exceptionally a duty may arise. Employers are vicariously liable for the negligent acts or omissions. Employers are also liable under the common law principle represented in the Latin phrase, "qui facit per alium facit per se".which means he who does things for others does them for himself. So according to Home Office v Dorset Yacht7, and Lewis case it will be consider here. In The Wagon Mound8, The Privy Council held that defendant would be liable only if it was the foreseeable consequence. The general common law rule was that a defendant was not liable for purely economic loss. The principle is illustrated by Simpson and Co v Thomson 9 and Candler v Crane Chrismas10 2KB 164. The dissenting judgement of Denning LJ in the latter case was approved by6 the House of Lords in the Hedley Byrne & Co v Heller & Partners Ltd 11 case. Since 1964 the rules as to the recovery of economic loss have been somewhat relaxed. This does not however mean that all foreseeable economic loss is recoverable. In Hedley Byrne case the claimants through their bankers asked the defendants for advice about the creditworthiness of one of the latter's customers. The defendants gave a reasonably reply, and the claimants extended credit to the customers and suffered losses in consequence. The House of Lords held that in principle the defendants owed a duty of care to the claimants and would have been liable to them for the resulting losses if they had not given the advice "without responsibility on our part". The case profoundly changed in two respects that the defendants were held owe a duty to take care in the advice or information that they give and the duty extended to purely economic losses. There were common In Henderson v Merrett Syndicates Ltd12 the House of Lords held that the Hedley Byrne principle extended beyond liability for financial harm caused by misstatements to cover a wider set of cases of economic loss brought about by negligence in the performance of a service. According to Lord Goff, this wider principle' rests upon a relationship between the parties, which may be general or specific to the particular transaction, and which may or may not be contractual in nature. If the services were performed in a commercial context. This wider principle of liability was also used in White v Jones13. In that case a majority of the House of Lords held that a solicitor could be liable in negligence for failing to prepare timeously a new will, thereby depriving the claimants/intended beneficiaries of the benefits intended by the testator. Lord Goff, giving again the leading judgement, held that the assumption of responsibility by the solicitor towards his client should be held in law to extend to the intended beneficiary who (as the solicitor reasonably foresee) may, as a result of the solicitor's negligence. In Gran Gelato Ltd v Richcliff (Group) ltd14 an error by the solicitor led to his own client making an innocent misrepresentation, which caused substantial loss to the plaintiff once the transaction was completed. The solicitor's duties were owed a duty to his own client. The circumstance in which the duty is owed and the scope of the duty are considered by the House of Lords in Moy v Pettman Smith (a firm)15. From the above discussion Julian will be liable for misstatement if Caparo test apply against him. Now its time to consider traffic's liability for the common law doctrine of vicarious liability states that employers are liable to third parties for wrongs committed by employees 'in the course of their employment'. The general principle that employers are only vicariously liable for the wrongs committed by their 'employees' is slowly being eroded. This is particularly problematic when an employer lends out an employee to another employer. Alcock v Wraith16 as per Neill LJ, "Where someone employs an independent contractor to do work on his behalf he is not in the ordinary way responsible for any tort committed by the contractor in the course of the execution of the work". In Lister v Hesley Hall Ltd17 was challenged the common law test for determining vicarious liability and in the process widened the potential liability of employers for the wrongful acts of his employee and others working on his premises. Betty is cycling into work. There are no cycle paths so she is cycling on the street. Here it can be said that the employers of Betty vicariously liable for the Betty's personal injury. The boundaries of vicarious liability have widened significantly post Lister is the case of Majrowski v Guy's & St Thomas' NHS Trust18. Here the 'closeness of connection' test was used to extend an employer's vicarious liability for breach of a statutory duty by an employee even when no such duty is cast on the employer. Each case will of course depend upon its own facts and whether there is 'sufficient connection' with employment. Consequentially, as this decision is one for the tribunal, it may be difficult to challenge on appeal since decisions on fact will not be overturned by appeal courts. Here Betty was in course of employment so employers cannot exclude liability. In case of traffic's employer can not exclude liability. In Murphy v Brentwood DC19 case, if the inadequate discharge of the local authority's inspection duties had led to an actual injury, rather than merely' an economic loss, the authority would almost certainly have been held liable. Whether the claimant's loss was in fact caused by the defendant's breach falls to be decided on the evidence. Typically the starting point for such a determination is the but for' test: if the loss would not have been occasioned but for the defendant's breach, then there is a prima facie factual causation. Clearly, the issue of remoteness is connected in some way with that of foreseeability; few judges have supported the view that a defendant should be liable for losses or injuries that were completely unforseeable. However Anne can take action against Mike. It the claimants' injuries deprive him of the capacity engage in sport or other pass times, which he enjoyed before his injury, and then he must be compensated. These assumptions about the uncertainty of the plaintiff's future may cause the jury to award him less money for lost future earning capacity, but they do not prevent the plaintiff from putting on evidence to reduce the assumption of uncertainty. Anne is a model who was due to take part in an audition for a car advert (20 girls have been asked to audition for one part). So if she takes part of the audition, she could earn. In this condition she can claim against Mike for lose of future earning. Anne is also entitled to be reimbursed for all of the medical expenses attributable to their injuries. However, she must then prove that the expenses were reasonable and necessary. In Wise v Kaye the plaintiffs was rendered immediately unconscious and remained so at the time of the trial three and a half years later. Though she had suffered an almost complete loss of her faculties, she had no knowledge whatever of this loss. In Lim Poh Choo v. Camden Health Authorities where Lord Scarman said that the cases draws s clear distinction between damages for pain and suffering and damages for loss amenities. The former depend upon the claimants' personal awareness of pain, her capacity for suffering. She is currently contracted to model for a drinks advert owned by Sodapop. So she can also claim for actual lose of earning. Actual lose runs from the date of the accident to the date of assessment. It is not permissible to profit from loss of earnings, so income tax and social security contribution must be deducted in order to ascertain the net loss. Actually Jim and Anne suffered nominal economic lose who lose the money paid on the tickets. As a result nominal damages are awarded where Jim has proved his case but has suffered no loss. In Constantine v Imperial Hotels Ltd20, the claimants will be awarded only a small amount of money. Nominal damages can be awarded only for those torts those, which are actionable per se. Sodapop suffered aggravated damages. Aggravated damages are compensatory. Sodapop will be awarded if they satisfied that they suffered more than can reasonably be expected in the situation. Due to Anne's inability to model for a week, Sodapop lose 400,000 in booking and retention fees for the delay in the photoshoot. Here the subject of the doctrine of frustration principle can be applied. We are now concerned with things going wrong because Anne of a model has committed a breach for severe accident. Breach is a very common problem and it has great practical significance. However Anne was suffered serious injury. To avoid lose of the company Sodapop can claim that the contract between Sodapop and photoshoot should be void to apply the doctrine of frustration. Sodapop as a third party cannot sue against Mike for this severe lose. However, Sodapop can claim that Anne is liable for breach of contract. In breach of contract the remedies may be sought from the court, which is set out in the LimitationAct1980. Here it is possible to prove breach of contract, and then the Sodapop has a right to damages. The extent of the damages will be decided by the court. But court will consider two principles act to limit the award of damages. These are duty to mitigation and remoteness of damages. Additionally though the severe damages occurred for the direct effects of breach of contract. But Anne would be liable to the extent of damages she could reasonably foresee. Bibliography: 1) Markesinis and Deakin, Tort Law, 5th Edition (2003), Clarendon Press-Oxford 2) John Murphy, Street on Torts, 11th Edition (2003), LexisNexistm UK, 3) Chris Turner Unlocking Torts, 1st Edition (2004), Hodder & Stoughton 4) I. M Yeats & P. Giliker, Law of Tort, (2006), University of London Press Read More