Business Law

FBL



Kim Senft
Stuuent no: 9


Module leader 1ony 8oyL
Semlnar 1uLor Alexandra kasLrlnou
Word CounL 1634
uaLe submlLLed 9
Lh
March 2010



1he LorL of negllgence ls a wrongful acL deflned by law whlch one person can
commlL agalnsL anoLher person lL can be Lhe fallure Lo do whaL a reasonably person
would have done Lo avold LhaL parLlcular foreseeable slLuaLlon lLs sLandards are
creaLed Lo punlsh abnormal acLlon Lo prevenL harmlng oLhers ls lL a slLuaLlon whlch
occurred ln case of Allce lashlon Wear LLd ln relaLlon Lo 8unbury Colf Club LLd?
Popefully followlng dlscusslon ls golng Lo answer LhaL quesLlon ln order Lo
approach Lhe cases rlghLfully (cose of Allce v 8ooboty Colf clob and losbloo weot
ltJ v 8ooboty Colf clob) Lhey are golng Lo be dlscussed separaLely

8unbury Colf Club LLd ls a prlvaLe golf club Cn one slLe of Lhe club Lhere ls a road
runnlng down and resldenLlal area Powever on Lhe opposlLe slLe of Lhe golf course
Lhere ls a sLream wlLh a cloLhlng facLory lashlon Wear LLd Allce (80) was walklng
along Lhe road when Lhe golf ball hlL her head as a resulL she felL down on Lhe
pavemenL 1he golf ball hlL by Lhe golf club player flew LhroughouL a fence erecLed
along Lhe slde of Lhe road ln addlLlon near Lhe place of Lhe accldenL fence had
been damaged by Lhe vandals uue Lo Lhe accldenL Allce suffered concusslon and
spend Lwo weeks ln Lhe hosplLal Lo recover Per moblllLy had been affecLed and she
had Lo engage someone Lo help her wlLh house duLles and shopplng Allce declded
Lo brlng a clalm agalnsL Lhe 8unbury Colf Club LLd ln Lhe acL of negllgence

As sLaLed before negllgence ls commonly called ''accldenLs'' and ''mlsLakes''
however ln mosL of Lhe cases lf Lhere ls a faulL Lhere ls a poLenLlal llablllLy
negllgence has goL speclal meanlngs LhaL complex of facLors whlch musL be proved
before Lhe clalmanL ls able Lo succeed llrsLly lL has Lo be esLabllshed lf duLy of care
ls owed 1here ls a sLrong lmporLance abouL Lhls facLor as lL brlngs llmlLaLlon of
clalms Allce has Lo prove LhaL Colf Club owes her duLy of care Club by belng
parLlally surrounded by resldenLlal area musL be aware of Lhe safeLy needs of Lhe
users of Lhe road and pavemenL 1haL would lnvolve puLLlng emphasls on
approprlaLe sLrucLure of Lhe fence Case whlch creaLed LorL of negllgence was
uoooqboe v 5teveosoo 1932 where courL held LhaL defendanL could be llable for
Lhe negllgence lf Lhey owed duLy of care Lo Lhe clalmanL 1haL can be declded
Lhrough Lhe 'nelghbour prlnclple' ln Lerms of law who ls our nelghbour? Any person
who ls close enough Lo be affecLed by Lhe acL Also by puLLlng ln Lhe defendanL's
place 'reasonable man' and conslderlng lf LhaL person would have foreseen Lhe
posslblllLy of Lhe ln[ury copoto v ulckmoo 1990 was a landmark [udgmenL whlch
broughL Lhe developmenL of Lhe modern law of negllgence 1he courL held LhaL ln
order Lo prove duLy of care Lhere are Lhree lmporLanL polnLs Lo be consldered As
Lhe flrsL one foreseeablllLy how reasonable person ln defendanL's poslLlon would
behave compare Lo Lhe acLual slLuaLlon? 8easonable person would deflnlLely puL
aLLenLlon Lo broken fence ln case of Allce as lL creaLes danger for Lhe users of Lhe
road Secondly whaL has Lo be consldered ls wheLher Lhere ls sufflclenL proxlmlLy
beLween Allce and Colf Club 1here ls proxlmlLy based on Lhe geographlcal bases
(uotset ocbt clob v nomo Offlce 1970) 1hlrdly ls lL falr [usL and reasonable LhaL
Lhe courL should lmpose Lhe duLy? (Cwens 2001) Accordlng Lo Lhese quesLlons and
prlnclples yes 8unbury Colf Club LLd owed duLy of care Lo Allce

Cnce lL ls proved lL ls necessary Lo esLabllsh LhaL Lhe Colf Club breached duLy of
care 1haL lnvolves conslderlng whaL sLandard musL be reached and has Lhe
defendanL fallen Lo reach lL? 1hese sLandards are ob[ecLlve whlch means LhaL
defendanL ls expecLed Lo have done whaL reasonable person would have done ln
LhaL parLlcular slLuaLlon Cnce falllng Lo reach lL means LhaL Lhey acLed negllgenLly
ln order Lo esLabllsh wheLher Lhe duLy of care was breached Salmond LesL has Lo be
applled and four quesLlons has Lo answer llrsLly was Lhe defendanL conducL very
llkely Lo cause harm? As ln Lhe case of noyley v looJoo lecttlclty 8ootJ 1963
where Lhe defendanL excavaLed a hole ln Lhe pavemenL ln whlch clalmanL bllnd
person fell lnLo and became deaf 1he defendanL was argulng LhaL Lhe llkellhood of
Lhe bllnd person passlng by and falllng lnLo Lhe hall ls very small so Lhey have noL
acLed negllgenLly Powever ln LhaL case courL sald LhaL Lhey breached duLy of care
1haL case sLrongly supporLs Lhe case of Lhe Allce agalnsL Lhe Colf Club as Lhe
defendanL mlghL argue LhaL Lhere was small llkellhood LhaL someone geLs ln[ured by
Lhe ball ln LhaL case lL seems Lo be secondly relevanL as Lhey negllgenL behavlor
(broken fence) lead Lo Lhe ln[ury Secondly as a parL of Lhe Salmond LesL lL has Lo be
consldered how bad Lhe rlsk of Lhe ln[ury could be? 1he rlsk of Lhe ln[ury exlsLs as
Lhe fence ls broken whlch meanL Lo proLecL surroundlngs of Lhe club from Lhe falllng
golf balls uue Lo Lhe faulLy fence Lhere ls 80 years old lady ln[ured Conslderlng 'Lhln
scull role' (5mltb v lee) whlch means LhaL defendanL musL Lake Lhe vlcLlm Lhe way
he/she ls 8ulbury Colf Club may argue LhaL lf Lhe ball hlL Lhe young person noLhlng
ma[or posslbly would noL happen Accordlng Lo 'Lhln scull rule' lL ls anrelevanL as
defendanL has Lo Lake a responslblllLy of consequences of hls negllgenL acL even Lhe
ones whlch were noL fully predlcLable 1hlrdly Salmond LesL ls wonderlng lf Lhere ls
any soclal ob[ecLlve whlch may [usLlfy an abnormal rlsk? ln Lhls parLlcular case Lhere
ls no soclal ob[ecLlve LhaL could explaln negllgenL behavlor of Lhe Colf Club lourLhly
and lasLly whaL have Lo be conslder could measures have been Laken Lo avold
harm? unforLunaLely Lhey have noL been Laken
ln Lerms of Lhe negllgenL acL lL ls noL enough Lo show LhaL Lhe defendanL breached
duLy of care LhaL ls owed Lo Lhe clalmanL lL musL also be proved LhaL Lhe Allce
suffered foreseeable damages as a resulL of Lhe breach Accordlng Lo causaLlon
Allce has Lo prove LhaL 8unbury Colf Club negllgenL behavlor dlrecLly affecLed her
slLuaLlon now her condlLlon leads Lo Lhe facL LhaL she requlres frequenL help from
ouLslde (McCbee v Nc8 1973) lurLhermore Lhe damage caused by Lhe defendanL
was reasonably foreseeable ln Lhe case of 1be woqoo MoooJ (No1) 1961 courL
held LhaL you are only llable for loss whlch could be predlcLed

8unbury Colf Club negllgenL conducL affecLed Allce llfe broughL Lhe changes whlch
wlll never be reversed Powever along wlLh Allce lashlon Wear LLd ls also argulng
LhaL Colf Club ls Lhe one Lo blame for Lhe lncldenLs 1he sLream along Lhe opposlLe
slde of Lhe golf curse had afLer a perlod of Llme become fllled wlLh rubblsh whlch
were Lhrown by Lhe users of Lhe golf course AfLer heavy raln sLorm Lhe sLream rose
much hlgher Lhan lLs normal and safe level As an effecL lL overflowed Lhe ground
floor workshop of Lhe lashlon Wear facLory 1hls accldenL caused 20000 of
damage of machlnery Also Lhe sLock was rulned and lLs value was esLlmaLed Lo
10000 1he facLory could noL resume producLlon unLll Lhe nexL week whlch
affecLed fuLure proflL of 30000 1rylng Lo solve Lhls case compensaLlon for Lhe LorL
of negllgence has Lo be consldered Powever Lhere ls a dlfference beLween Lhe
Allce's and lashlon Wear facLory lashlon Wear company ls argulng LhaL negllgenL
conducL was a reason for pure economlc loss whlch was a effecL of lL

lor a many years Lhe law dld noL recognlze a duLy of care when Lhe loss complalned
of was pure economlc loss 1he law of conLracL ls meanL Lo exlsL Lo compensaLe for
Lhe pure economlc loss As a resulL for many years negllgence was noL deallng wlLh
cases ln Lhls manner 1hey were mosLly broughL as a breach of conLracL as a reason
of Lhe suffered loss (Cwen 2001) Powever ln Lhe case of Lhe lashlon Wear LLd v
8unbury Colf Club Lhere was no conLracL beLween Lhe parLles lashlon Wear
company would noL be able Lo clalm for breach of conLracL LhaL ls why Lhe clalm
should be based on Lhe facLs of negllgence whlch lead Lo Lhe pure economlc loss
faced by Lhe company Conslderlng Lhe facLs of Lhe negllgence lL becomes vlslble
LhaL Lhe accldenL was foreseeable and could be avolded Also Lhese Lwo parLles
where ln nelghbour relaLlon and looklng afLer Lhe sLream should be consldered as a
reasonable lashlon Wear LLd can clalm compensaLlon for Lhe damages whlch
would lnclude 2000 damage Lo machlnery and loss of Lhe sLock 10000 Powever
ln Lerms of Lhe fuLure proflL lL ls lmporLanL Lo brlng lnLo Lhe aLLenLlon Lhe case of
5pottoo 5teel Alloys ltJ v Mottlo co (coottoctots) ltJ 1973 ln LhaL leadlng case
for pure economlc loss courL held LhaL SparLan SLeel could only recover Lhe
damages Lo Lhelr heaLlng sysLem Lhe meLal whlch Lhey had Lo dlscard and Lhe proflL
losL on Lhe dlscarded meLal Powever Lhey could noL clalm compensaLlon on proflL
losL due Lo Lhe facLory noL operaLlng for 13 hours As a maln reasonlng was broughL
LhaL 'whlle Lhe damage Lo Lhe meLal was 'physlcal damage' and Lhe losL proflLs on
Lhe meLal was 'dlrecLly consequenLlal' upon lL (8arker 2007) 8ased on LhaL
[udgmenL lL can be argued LhaL lashlon Wear LLd would be successful ln Lhelr clalms
agalnsL 8unbury Colf Club LLd








8eferences
(1) Cwens k (2001) Law for nonlaw SLudenLs 3
rd
edlLlon Cavendlsh ubllshlng
LlmlLed London Lngland
(2) SmlLh keenan (2007) Lngllsh Law 1exL and Cases 13
Lh
edlLlon earson
Longman Lngland
(3) 8arker uLA (2007) Law Made slmple 12
Lh
edlLlon Llsevler Cxford
Lngland
(4) Parpwood v (1997) rlnclples of 1orL Law 4
Lh
edlLlon Cavendlsh ubllshlng
llmlLed London Lngland