Question 8

To success in a negligent case, a claimant must prove that the defendant had a duty of care
to compensate for their losses. Duty of care, breach of duty of care, causation and
remoteness of damages are the elements that together constitute any successful claim to
negligence. The general rule of duty of care was based on the case of Donoghue v
Stevenson, in which it was held that the manufacturer owed the claimant a duty of care. In
this case the related theory, or the reasonable foreseeability test, was derived. However,
there is currently a three-stage test by Lord Keith in the case of the Peobody Donation Fund
v Sir Lindsay Parkinson & Co Ltd to determine whether the duty of care is due. The question
was whether the damage was reasonably foreseeable. If so, the proximity between the two
parties is sufficient. If the first two tests are satisfied, the last test is whether the imposition
of such a duty is fair and reasonable.

The quote touched on the related question constitutes a factual basis, essential to
constitute negligence of liability. According Lord Browns in the case of Sienkiewicz indicates
that in the decision making on negligence, the British Court is meddling with the application
of the "but for" test. The general rule on factual causation, Cork v Kirby MacLean Ltd,
stated, "If the damage had not occurred except for a particular fault, then the cause of the
damage was the fault; whether it had happened either the same fault or not fault, this fault
was not caused by the damage." However, in Barnett v Chelsea and Kensington
Management Committee, the courts found that there was no factual cause of injury to the
claimant, irrespective of the conduct of the defendant. This is because, even if the doctor
examines the claimant at the time, the arsenic poisoning could not have been treated.
Therefore, the death of the claimant could not be attribute to the doctor’s negligence. In
general, the “but for” test is a good test, however it has its own limitation.

However, there are modifications for the “but for” test. The first one is material contribution
test which can be seen in the case of Bonnington where the claimant contracted to
pneumoconiosis which was cause by silica dust. The problem is there is two type of dust
which is the innocent and the tortious. The defendant argued that the burden of proof
rested with the claimant and that, because the cause of his injuries was only 50%
attributable to the defendant, the claim should have failed. However, the courts have
rejected this argument-in cases involving multiple concurrent causes of injury, the claimant
must only prove that the negligence of the defendant has made a material contribution to
his injuries. Claimants do not have to prove that negligence was the sole cause of their
injuries. Although in the case of Bonnington the cumulative causes concerned, the issue of a
material contribution to the injury applies where the causes are one of several distinct
causes, as in the case of Wilsher. According, Lord Bridge as one of showing that the excess
oxygen given to the baby was the cause or material contribution of blindness. The problem,
however, was the presence of other factors which meant that it could not be shown that the
injury would not have occurred "but for" the contribution of a negligent cause.

Second modification is material increase in the risk, which can be seen in the case of
McGhee v National Coal Board. As in McGhee, there are a number of cases where claimants
have not been able to show that their harm has occurred as a result of the conduct of the
defendant, but have been able to show that their employer has made a material
contribution to the risk of injury occurring. Therefore, the claim was successful where the
defendants had substantially increased the risk of dermatitis developing by the claimant.

This principle is important in cases involving multiple illegitimate risk exposures. this
application can be seen in Fairchild where claimants could not prove which one of their
multiple employers caused the damage. It was unlikely that each individual employer would
have caused this in terms of probabilities. In response, McGhee had been introduced to this
issue, and each claimant had been given right to demand maximum damages from the
employer as long as each employer could show that the employer had substantially
increased his risk of contracting mesothelioma.

The McGhee theory was however, eventually accepted and further established in
mesothelioma cases. It started with a Fairchild House Of Lord (HOL) judgment. Medical
science is not aware of the exact etiology of mesothelioma, but is closely associated with
asbestos dust exposure. The most probable problem with McGhee was that it was
untriggered from an asbestos fiber that penetrates a cancer cell without proof that the
illness was onset.

The same principle applies in cases where the applicant has voluntarily been exposed to
asbestos as a matter of self-employment. In Barker v Saint Gobain Pipelines, the applicant
had been exposed to asbestos for almost 9 years while in the custody of the defendant. For
the remainder of his 30-year career, the claimant was self-employed, working with asbestos
on three different occasions. It was held that Fairchild still applied and that the defendant
was liable for the claimant's mesothelioma because of the material contribution of the
defendant to the claimant's illness. A 20% reduction in the value of the claim was made by
the claimant's own contribution to the exposure.

The adverse publicity surrounding the sufferers who were sick being forced to spend much
of their remaining time trying to establish the relative extent of the liability of former
employers led to the introduction of new legislation to restore the Fairchild status of joint
and several liability in cases of mesothelioma. Under S.3 Compensation Act 2006 allows for
the establishment of mesothelioma where the worker has contracted as a result of
exposure to asbestos triggered by evidence of the material contribution of an exposure to
the risk.

The application of S.3 of the 2006 Compensation Act can be seen in the case of Sienkiewicz
. There was only one employer, but the deceased was also exposed to asbestos dust in the
environment of the town where she lived. Her condition could not, and therefore could not,
prove that the illness was probably caused by exposure to the workplace, because there was
another potential cause which did not arise from the employer's error. The trail judge said
that since only one employer existed, the claimant should have to prove causation on the
normal probability balance test and found that the test was not discharged.

The Court of Appeal (COA), however, allowed the claimant's appeal and stated that the
complainant could establish causes in the cases of mesothelioma by showing that the risk of
the employee developing the disease increased substantially in the workplace exposure.
S.3(1) of the Compensation Act 2006 was interpreted by the COA by stating that Parliament
intended to reflect common law requirements in mesothelioma cases, which require proof
of cause by reference to a material increase in risk.

Simultaneously, in the case of Bailey and Wright, the test of material contribution
developed further. These cases extended the test to cases of medical negligence, which
permitted the judges to establish a causal relationship between negligent and ultimate
damage suffered by claimants, provided that in the circumstances the negligence was more
than minimal. The text on the substantive contribution should not therefore be limited to
policy justification in the employee-employer case at Bailey and Wright. The test may now
be used in medical cases where the negligence of the doctor was one of two or more
possible causes of the condition of the claimant. This development shows a shift away from
cases such as Bolitho and Wilsher, where in cases of medical negligence a strict test "but
for" has been preferred. Though in cases such as Wilsher the rigid application of the test
posed problems. However, judges had not, because there was no pressing practical reason,
been urged to modify a text for a more lenient approach.

In conclusion, it is true that the statute tampers with the "but for" test and is explicitly in
favor of the claimant. However, it is respected that there is no major risk in the tampering of
the test. Modifications were genuinely justified where they were carried out. Cases of
mesothelioma have gone on to implement a material increase in the risk test. Apart from
the situation involving mesothelioma cases, the claimant takes the view that there is
flexibility in the practice of tampering with the test.

Words: 1450
Question 5

It comes to know that Frank is the potential claimant, since we are told to advise Frank.
Therefore, the defendant here would be the Gradgrind University College (GUC) as applying
the “control test” by Lord Denning in the case of Wheat v E Lacon. This is because, its clear
that GUC are in control of the premises. The possible action in tort here would be under the
S.1(2) Occupier Liability Act 1984 (OLA 84).

Firstly, with regards to Frank it would have to determine whether Frank a visitor or a non-
visitor. According to text above it clearly state that only the student and the staff of the GUC
is invited. Moreover, there are certain condition on who could join the GUC party. Besides,
students who attend the party should have their identity card with them. It is clear that
Penny, Frank sister is a visitor to the GUC party, however Frank is a trespasser since he was
not invited. Since Frank is a trespasser, as far as the owners concern their duty is covered
under the OLA 84.

Next it would have to determine whether the Frank the claimant suffered injuries due to the
state of the premises as where the place of injury must be deemed to fall within the
statutory definition of premises as in S.1(3) OLA 1957 the owner must have the awareness
or fair belief that the trespasser is in the vicinity of the relevant risk. On the fact, Frank is
injured due to the state of the premise. However, Frank is not informed about the warnings
which state “repair works in progress” since he is trespasser and was not official invited by
the GUC. However, Frank could consider as an implied visitor since he was invited by the
sister but it is clearly stated by GUC that only the student and staff of GUC are invited.
Therefore, Frank is still considered as a trespasser. Besides, it could be argued that Frank
may have exceeded the permission give to all visitors and considered as trespasser which is
covered under OLA 84.

The issue here is whether the GUC owes Frank a duty of care (DOC) under S.1(3) of OLA 84.
Previously before OLA 84, all trespasser was dealt under Common Law because the OLA 57
applies only to lawful visitors, the law relating to trespasser was still uncertain and being
developed by judges. Besides, under Common Law trespassers were considered as wrong
doers and the standard of care owed to them by occupier is low. After the House of Lords
(HOL) decision in the case of British Railway Board v Herrington the OLA 84 was enacted.
Therefore, the occupier owes the trespasser a common humanity duty.

In order, for the trespasser to sue the occupier, that he owes a DOC to the trespasser,
several sections need to be satisfied under S.1(3) OLA 1984. First, based on the fact,
according to S.1(3)(a), the occupier knows of the danger and has reasonable ground to
believed it exists, Frank was not aware and informed by his sister that GUC is having a minor
repair work going on. However, GUC has taken step where they palace several prominent
notices stating that “caution repair work in progress”. This can be seen in the case of Keown
v Coventry where the danger must be a real danger, it cannot be the case that the premises
have no danger, but the non-visitor used the premises in a dangerous manner.

Second, under S.1(3)(b) the occupier must be aware of the trespasser. In this case, GUC
would not reasonably foresee Frank would attend the party since he is not student or the
staff of GUC. This can be seen in the case of Donoghue v Folkestone Properties Ltd.
Another, example can be seen in the case of Swain v Natui Ram awareness necessity is
either real knowledge or closed eye knowledge.

Third, under S.1(3)(c) risk is one that the occupant is expected to offer protection. Based on
the fact, GUC does not owe any DOC to Frank. This can be seen in the case of Tomlinson v
Congleton BC the present case suggested that the danger should be one per se and not the
misfortune or misfortune of the claimant itself. Their Lordships also suggested that the
courts would look at the benefit of having a place compared to closing a place for the sake
of the absolute safety of the people. In the event, if duty is established than the standard of
care is applied under the S.1(4) OLA 84 where the occupier must take reasonable care to
ensure the premise is safe. On the facts, in defenses volenti S.1(6) OLA 84 in the case of
Keown v Coventry Healthcare NHS Trust, the courts will rarely hold back from recognizing
that there is a point where children should be aware of the risk they are taking.

Based on the fact, Frank will want to sue GUC because Frank’s hand is severely injured and
his mobile phone is smashed. This happens because, Frank went to the lavatory where there
were several missing bulbs which cause the corridor semi-darkness. Besides, when Frank
runs out of the lavatory he trips and lands on a chisel that has been left leaning against wall
by one of Mark’s employee who is a lawful visitor (contractor). Since Frank is a 12-year-old
boy, he should know that he cannot enter a premise without permission because it is
believed that he has better knowledge and is considered as a trespasser. This can be seen in
the case of Glasgow Corporation v Taylor. Here the defendant refuse to put a fence to a
poisonous berry tree which cause a young child died after eating the berries. The court held
that the defendant is liable on the basis of the allurement principle.

According to the S.1(3) OLA 84 exception, under the S.1(3)(a) GUC is aware of the danger
around them. Next, under the S.1(3)(b) GUC is not aware of the trespasser because they
were busy having party. However, this fault can be on the college porters who is responsible
in checking who is entering the college party. Next, under the S.1(3)(c) GUC does not have
to give protection to Frank since he was trespassing the college party and furthermore GUC
did not foresee that kids would join the party. Besides, GUC also gave a fair terms and
condition that only student and staff of GUC could join the party. Therefore, GUC does not
owe any duty of care towards Frank.

Furthermore, there is possibilities that GUC would want to blame the independent
contractor which is Mark’s Joinery Firm who has been carrying out minor repair work at the
college. They are also one of the reasons and in charge of Frank’s injury because of the
chisel which was placed irresponsible. The key question here is in determining if GUC the
occupier has acted reasonably? GUC acted reasonably in entrusting the work to the
independent contractor. According to S.2(4)(b) Works done by independent contractor may
make an occupier not liable. This can be seen in the case of Ferguson v Welsh where the
HOL held that the occupier is not liable under the Act for not inspecting the work of the
independent contractor, as to whether a safe system of work was adopted during
construction work on the premise. A duty and liability on the occupier’s part would only rise
where the occupier is aware that his independent contractor is not competent and is not
adopting safe practices.

Based on the fact of the question there is less fact regarding the independent contractor
and its only known that GUC want to refurbish some maintaining repair job at the college.
However, GUC should be aware of the repair work and constantly have a checking on how
the contractor is doing their job. This can be seen in the case of Glaister v Applelby in
Wesmoreland Town Council where the claimant argued that the defendant council did not
ensure that the independent contractor carrying out its event on the premise had public
liability insurance for the event. The court held that, there is no such duty owed and that if
all, liability may be argued under ordinary common law negligence.

In conclusion, GUC does not owe any duty of care or duty of humanity towards Frank
because he trespassed a private party which conducted by GUC and furthermore, based on
the fact the independent contractor is clearly not that competent.

Words: 1433
Question 1

The potential claimant here is Hanna Amish’s wife, Pete Madeleine’s brother, Lucy and Tim.
The potential defendant here is Rack and Horse Lighting and Stuart. The possible action in
tort here is negligence. In order for a negligence to succeed, the element of tort have to be
proved, which is duty of care (DOC), breach of duty of care, causation and remoteness of
damages. This can be seen in the case of Lochgelly Iron v McMullan and The Wagon
Mound.

The first issue here is to confirm that as a maintainer the Rack and Horse Lighting (RHL) and
Stuart who was supposed to fix the lighting owes a duty of care to Hanna, Pete, Lucy and
Tim. Besides, because of their negligence in maintaining and fixing the spotlight rig, this has
caused a massive explosion and the death of Madelein, Amish and Dave. They are all
reasonably foreseeable victims where the RHL maintainer and Stuart has breach their duty.

Here the law categorizes potential claimants as either as a primary or secondary victim. This
distinction can trace back to the case of Dulieu v White where recovery was only permitted
for those who suffered shock through a reasonable fear of injury to themselves, but it was in
Alcock v Chief Constable of South Yorkshire that it was “set in legal stone”. According to
Lord Oliver primary victim is described as those who involve in the injury and the secondary
victim as claimant who suffered from witnessing the injury to other.

In this case, Hanna who is Amish’s wife appears to have a valid claim for psychiatric injury as
a secondary victim. There are two type of victim in psychiatric injury which is primary and
secondary. In this case, Hanna is secondary victim where she was not in the danger zone as
she was watching the concert from the VIP sitting area as in the case of Page v Smith and
White, in order for her to claim as a primary victim, she must be in physical danger but it is
clear that Hanna cannot bring claim under primary victim. Generally, VIP sitting area will be
little far away from the stage. In this situation, it’s clear that Hanna is out of the danger
zone. However, for Hanna to claim as a secondary victim she must fulfil the criteria in
Alcock.
Generally secondary victim is those who were not in the zone of danger and went on to
suffer psychiatric injury for witnessing a horrifying event. The requirement claim for
secondary victim is first, there must be foreseeability of psychiatric injury. In this case, even
though Hanna is physically unharmed but she suffers from nightmare and depression where
she witnesses her husband death in the concert which this link to the second requirement
of the secondary victim “sudden shock”. Therefore, Hanna’s claim under secondary victim
will be successful.

On the other hand, Pete Madeleine’s brother might have a claim as a secondary victim. In
order for his claim to be successful, he must prove a close relationship with the primary
victim as per Alcock. Such relationship could be presumed to be exist in the case of spouses,
parent, children. However, this presumption could be rebutted by evidence that parties
were estranged. While for sibling and other relatives would not normally be regarded as
having the requisite closeness of relationship. In this case Pete who was listening to live
broadcast in Paris heard the explosion and thinks that he heard Madelein screaming. In this
situation, this could cause Pete “sudden shock” because he was listening to live broadcast.
Pete manage to catch a flight and arrives at the hospital 3 hours after the accident.
According to Alcock’s guideline in proximity in time and space to the incident or immediate
aftermath arriving within 2 hours from the accident satisfy the proximity limb. In this case,
Pete arrive 3 hours after the accident could have deemed no longer proximate, or it could
be in consideration and it could satisfy the proximity. This can be seen in the case of Galli-
Atkinson v Seghal. In Pete’s situation it takes time to fly to the accident area. When Pete
saw his sister’s, body covered with blood which is devastating and disfigured. He suffered
shock. Pete could establish duty against the defendant. Therefore, Pete’s claim could be
successful.

Lucy may have a valid claim as a primary victim. This is because, Lucy was standing near to
the stage during the concert where is was in a danger zone. She has some identifiable
psychiatric injury where she has to overcome grief. According to primary victim criteria, as
long as the defendant’s carelessness put the claimant in a position which injury is
reasonably foreseeable, the claimant would be deemed as a primary victim and the
defendant owed a duty of care. Besides, the primary victim does not have to prove that
psychiatric injury was foreseeable. For example, in the case of Donachie v Chief Constable
of Greater Manchester Police. In this case, Lucy’s claim may be successful.

Next with regards to Tim, it is arguable that he is not in physical danger himself. However,
Tim could argue under secondary victim. As usual, the claim under the secondary victim
there are certain criteria to be satisfy. In Tim a trainee ambulance man arrives on the scene
and rushed to the stage but there is little can he do. Since Tim is still a trainee and this is his
first major accident, this could cause him foreseeability of psychiatric injury and also could
cause him a “sudden shock” because of first time witnessing a major accident. However,
there is no any proximity in relationship since Tim is just an ambulance man. This can be
seen in the case of Butchart v Home Office, where the court held that the claimant was a
secondary victim but he did not satisfy the proximity in relationship circumstances.
Therefore, the claim for the claimant is not successful. In this case, it is clear that Tim’s claim
will not be successful even if he is a secondary victim just because he did not satisfy the
criteria for the secondary victim.

As in for Stuart, he is responsible in fixing the light. However, he is in guilt and feeling
depressed that he failed to do his job and blame him self that the explosion was his fault.
This can be seen in the case of Dooley v Cammell Laird Co and Ltd. However, Stuart and the
Rack and Horse lighting owes a duty of care to Hanna, Pete and Lucy.

In conclusion, the only liable person for the claim is Hanna, Pete and Lucy. It is evident that
the current law on psychiatric injury is in a mess. It is submitted that reform is not on
desired but is necessary. The most likely mechanism of reform is the Supreme Court and the
chances of reform look favorable as recent cases have recognized the mess in which the
current law is in.

Words: 1401
Question 2

Vicarious liability describes cases where a person committed a torture while working on
behalf of another person. The primary situation of the concept is that someone acts for an
employer. The concept occurs. In Dubai Aluminium Co Ltd v Salaam by Lord Nicholls, an
explanation can be given for this phenomenon. The legal policy underlying this principle is
based on the fact that the company involves necessarily risk to others. This entails the risk
that the wrongful actions of the agents who carry on the company will injure others. If these
risks are lost, the only way to compensate the person who was wrong is for the business.A
number of conditions must be met to determine liability on the part of the employer. Firstly,
an employee as opposed to an independent contractor is the wrongdoer; the employee
must have committed wrong and in the course of his work the wrong must have been
committed.

For the doctrine to come into force, there are two elements laid down by Paul Giliker in
vicarious liability in tort. The courts will first search the relationship between the employer
and third parties sufficiently close before they can assign vicarious liability. Given that most
people have an employer at some point, this is the most common scenario. Some other
relationships, however, lead to assistant liability. Since employer-employee is the most
common relationship, it is important to know the characteristics of that connection. The law
has developed various tests for employee-contractor distinguishing. As Justice Cooke in the
case of Market Investigation v Minister of Social Security suggested that control was only
one factor to consider and the determination of the relationship.
The first of these is the 'control test.' It means questioning who manages the job of the
individual exactly. Employees tend to be clearly determined by their boss as to their mission,
whereas individual employees have more personal influence. This can be seen in the case of
Yewen v Noakes forms the origins of the control test. However, the courts now have
rejected the test as an unsatisfactory test in which it determines whether there has been
relationship between tortfeasor and the defendant. This can be seen in the case of Cox v
Ministry of Justice where the claimant had worked as the catering manager at a prison. She
suffered injury as the result of the negligence of a prisoner, performing paid work under
claimant’s supervision.

Next is the "integration test" differentiates between those who sign service agreements
and those who enter into services. Employees tend to perform work that is an integral
element of the business, while independent entrepreneurs tend to work ancillarily to the
main functions of the company. In Stevenson, Harrison & Jordan Ltd v MacDonald & Evans
this theory can be seen at the moment. A accountant wrote a book based on the knowledge
and skills acquired by a company during his work. Before publishing the book, he died. Then
came the question as to who owns the copyright the estate of the accountant or its former
employer. Although the authors are primary copyright owners for anything they publish, if it
is written under an employment contract and the writing is completed during jobs, the
employer is the copyright owner. Lord Denning agreed to separate the book's contents that
were specifically derived from the accountant 's employment from the contents that were
merely connected with the work of the accountant.

On the other hand, sometimes the 'economic reality test' is referred to as the 'multiple test'
or the 'pragmatic test.' The characteristics of the work arrangements of the subject will be
examined against a checklist of signs of conventional employment. The test is available in
Ready Mixed Concrete Ltd v Pension Minister.

When a close relationship has been formed, the person committed a tortious act must be
demonstrated. This is because a third party cannot be held responsible on a secondary basis
before someone acting on their behalf has attracted primary responsibility. That is to say, it
is dependent on whether or not the pertinent misdemeanor is possible to be responsible. It
is worth noting one technicality. Unless the employee is immune from prosecution because
of his family status, Broom v Morgan does not provide him or her with equal protection.
An employer is not responsible for all the actions performed by one of its employees.
Instead, a tortious act must occur during employment to ensure that vicarious liability is
possible. If employer-employee is not the appropriate relationship, the same concept shall
apply, but in amended form. In this element of vicarious liability, there are several
categories of employment scenarios that may arise.

it is often easy to see when an unpleasant act takes place in the course of an employment —
especially if an employee follows the expedited instructions of his employer directly and
does so.The main thing to be sure, however, is that an employee has an implied authority to
act on account of his rank. In many employment situations, explicit permission is not always
present especially when an employer recognizes that it is incorrect – such directives would
not be imposed in writing. As this can be seen in the case of Poland v Parr.

It is likely that, if the employer specifically forbids an employee from taking a particular
action, courts may usually deny vicarious liability. It is therefore necessary to note that while
a prohibition on taking a particular move is sufficient to sever the relation between the
actions of an employee and the employer it is not possible to say the same when an
employer simply forbids an employee from taking an approved action unlicensed. The
difference between the scope and the mode of action is often referred to as this distinction.
The scope of actions can be seen at Iqbal v London Transportation Executive. It was
explicitly outside the scopes of its duties that the bus driver was not allowed to drive.
However, he attempted to push a bus blocking but collapsing a depot, injuring an additional
employee. On the grounds that the driver's actions were beyond his duties the court
rejected the vicarious liability.

There is another category of cases in which employees take criminal measures at work.
Although these sometimes fall outside the reach of the vicarious obligation, this is not a
matter of fact. The test is whether the criminal behavior and the usual conduct of the
employee are related sufficiently closely. This is seen in Lister v Hesley Hall Ltd 's
unfortunate case. The courts, as in Mohamud v WM Morrison Supermarketing plc, have
extended this principle relatively far. It was a successful claim. While the employee 's
behavior was clearly outside of his job, it nevertheless occurred during the course of his
career.
The gaps between the behavior of the worker and the person's behavior are often broken.
Additional complications can arise during working hours and on the workplace when
personal behavior. The law therefore distinguishes between employing conduct and actions
that can be regarded as "the frolic of its own." This distinction is based on Joel v Morison.
When Storey v Ashton makes a difference between employment behavior and a personal
frolic. A wine merchant, the defendant's employer, sent his driver to supply some wine. The
driver went to visit his brethren after he finished the deliveries. He knocked down and
wounded the plaintiff on this journey. The courts dismissed the claim against the driver's
employer – the driver took a new and completely unauthorized trip.

Under common law, if a defendant has acted in contravention of the contract, it is possible
for the defendant to recover compensation (complete recovery) for loss from his employee.
It was the situation in Lister v Romford Ice and Cold Storage Co Ltd. When one of his
employees failed to back a new employee in a lorry, the defendant was held in an
assignment. The insurance firm of the defendant then brought the lawsuit against the
employee on behalf of the defendant. They succeeded the employee had not been diligent
and professional, and had thus violated an implicit contract term.

In conclusion, the doctrine of vicarious liability appears to be moving significantly over the
year, where the courts have adopted a much more flexible and wider approach. However,
there are plenty of development available under the law of vicarious liability.

Words: 1389