Duty Of Care And Negligence – Analysis And Advisement

Essential elements of a negligence claim

1.Advise Brian and Ros as to whether they have an action in negligence only. Against whom would they bring their action(s)? Discuss their action(s) fully, by referring to the essential elements of a negligence claim.

2.Advise all parties as to whether a duty to exercise care was owed by him/her/them.

Whether Ros and Brian can bring a claim of negligence against Smart Editions, and Michael and Belinda for the injuries sustained by them, or not?

Negligence is the breach of duty of care, which results from the injury caused to the person to whom the duty of care was owed. So, where a person A owed a duty of care to person B, due to the actions being undertaken by A, which have the capacity of injuring or harming person B, and this duty was not taken resulting in B getting injured, a case of negligence can be made by B against A. The court in such cases awards remedies to person B which is to be paid by person A, due to negligence undertaken by A. In order to make a claim of negligence, there is a need to show the presence duty of care, breach of it, resulting damages, foreseeability, remoteness, direct causation and proximity (Harvey and Marston, 2009).

A leading case which proves to be of help in establishing that the duty of care had been owed by A to B, is the case of Donoghue v Stevenson [1932] UKHL. In this case, D had gone to a cafe with one of her friends. This friend had purchased an ice cream and a bottle of ginger beer. This ginger beer was present in an opaque bottle, as a result of which the contents of the bottle were not visible. Half of the contents of this bottle were poured by D over the ice cream and she also drank the ginger beer from the bottle. Once she had eaten a part of the ice cream, the remaining contents of the bottle were poured by her over the ice cream and a decomposed snail came out from this bottle. As a result of this, D sustained personal injured and she initiated a claim against the ginger beer’s manufacturer. The case was held as successful in the court and this led to the neighbour test being born (Gibson and Fraser, 2014).

The court stated that in this case the parties were in proximity where the actions of one party had the capability of harming the other party. Due to the manufacturer not taking care in their manufacturing process, harm was caused to the consumer, which led to the direct causation condition being fulfilled. Here, the consumer was D and the manufacturer was S, and irrespective of the bottle being purchased by friend of D, a duty of care was nonetheless owed by S (Strong and Williams, 2011). The duty of care for professionals is enhanced in comparison to normal individuals based on Rogers v Whitaker (1992) 175 CLR 479 (Health Law Central, 2018).

Establishing the presence of a duty of care

Once it is shown that a duty of care was present, its breach has to be established. For this purpose, Paris v Stepney Borough Council [1951] AC 367 proves to be of help. In this case, failure to provide requisite safety gear, resulting in Paris getting blinded, was deemed as a breach of duty of care (Latimer, 2012). The next requirement is to show that the injury was substantial and not too remote. Remoteness of damages results in damages not being awarded as per Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] UKPC 2 (H2O, 2016). Further, damages are awarded only when it can be shown that the injury would not have taken place had the duty of care not been breached, based on “but for” test given in Barnett v Chelsea and Kensington Hospital [1969] 1 QB 428 (Turner, 2013). There is also the requirement of loss being reasonably foreseeable. And in this regard, the view of a reasonable individual, based on Wyong Shire Council v. Shirt (1980) 146 CLR 40, has to be adopted (Jade, 2018).

In the given case study, for holding any of the parties liable, the above laid conditions have to be fulfilled against them. In this context, Smart Editions was the manufacturer of this case, as they undertook the work of renovation. As a result of this, they were required to undertake the work in a careful manner, such that it did not cause injuries to the other party. Applying the case of Donoghue v Stevenson, here a duty of care would be deemed to be owed by Smart Editions towards Brian and Ross. This is true even when they did not get the renovation done, and were merely the tenants. Like the quoted case, here the paying party was different from consumer. Yet, as Brian and Ross were the consumers, a duty of care was owed to them.

Further, based on Rogers v Whitaker, the duty of care owed by Smart Editions was higher as they were professionals. So, they were required to warn Michael and Belinda regarding the standard being enclosed carpeted staircase and the risks associated with open floating timber staircase. Their failure to do so would be deemed as a breach of duty of care, particularly when Brian and Ros got injured as per Paris v Stepney Borough Council. Moreover, the losses sustained by the two were not remote as per Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, as Ros got his arm burnt and Brian broke his leg. These were foreseeable risks in view of a reasonable person, as the professionals should have taken care in planning the sockets accordingly, and warning about the stairs, fulfilling Wyong Shire Council v. Shirt. Lastly, had the care being taken by Smart Editions, Ros and Brian would not have been injured as per Chelsea and Kensington Hospital.

Case law and its application to the given scenarios

For a claim of negligence by Ros and Brian against Michael and Belinda, a case cannot be made against them, based on Donoghue v Stevenson, as in this case, a claim of negligence could not be made against the cafe.

Conclusion

Thus, Ros and Brian can bring a claim of negligence against Smart Editions, but not against Michael and Belinda for the injuries sustained by them.

Whether a duty of care was owed by EON Financial Services or Mary to Paul for the financial advice given, or not?

Misrepresentation is a term under the contract law which provides that where a person is induced by one party by another party, to get in a contract, by making a false statement of fact or law, such contract is voidable (Cartwright, 2012). A type of misrepresentation, which touches tort law, is negligent misrepresentation. This aspect is better covered under negligently inflicting economic losses. And in this context, the Caparo test proves to be of help, which was given under the case of Caparo Industries pIc v Dickman [1990] 2 AC 605. In this case, the House of Lords stated that in order to hold the presence of duty of care, there has to be foreseeability of damages, proximity between the parties, and imposition of duty of scope should be deemed as reasonable and just under the law (Lunney and Oliphant, 2013). When it comes to the professionals giving advices to their friends, as per Lejonvarn v Burgess & Anor [2017] EWCA Civ 254, a duty of care is owed by them (Willans, 2017).

In Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, Hedley wanted to know if extending the credit to the customer was advisable or not and this question was made to Helller. Heller stated that this was appropriate but this advice turned out to be wrong and the customer went out of business. This resulted in Hedley suing Heller. The question was raised on whether a duty of care was owed by Heller to Hedley. The court stated that for a duty of care to present regarding the careless statement, which resulted in pure economic loss in this case, certain conditions had to be fulfilled. However, here no duty of care was present based on the given facts (Case Brief, 2013).

In the given case study, Mary was not a professional who provided advice to Paul so based on Lejonvarn v Burgess & Anor, there is an absence of duty of care. Again, based on this case, EON was not a friend of Paul, so no duty of care is owed. Applying the Caparo test given in Caparo Industries pIc v Dickman, Mary could not have foreseen that Hunter would fail. Even though there was proximity between Mary and Paul, it would be unjust to impose a duty of care in this case on her. Here, even though as a professional, EON could have foreseen the risk of harm, there was a lack of proximity between EON and Paul as they never gave the advice to Paul, but to Mary. So, even this test proves no duty of care owed towards Paul by EON or Mary. More importantly, the similarity of this case study and Hedley Byrne & Co Ltd v Heller & Partners Ltd would show that a duty of care was not present again.

Conclusion

Thus, a duty of care was not owed by EON Financial Services or Mary to Paul for the financial advice given.

References

Cartwright, J. (2012) Misrepresentation, Mistake and Non-disclosure. 3^rd ed. London: Sweet & Maxwell.

Case Brief. (2013) Hedley Byrne v Heller. [Online] Case Brief. Available from: https://casebrief.me/casebriefs/hedley-byrne-v-heller/ [Accessed on: 08/09/17]

Gibson, A., and Fraser, D. (2014) Business Law 2014. 8^th ed. Melbourne: Pearson Education Australia

H2O. (2016) Wagon Mound (No. 1) — “The Oil in the Wharf Case”. [Online] H2O. Available from: https://h2o.law.harvard.edu/collages/4919 [Accessed on: 08/09/17]

Harvey, B., and Marston, J. (2009) Cases and Commentary on Tort. 6^th ed. New York: Oxford University Press.

Health Law Central. (2017) Rogers v Whitaker (1992) [1992] HCA 58; 175 CLR 479. [Online] Health Law Central. Available from: https://www.healthlawcentral.com/rogers-v-whitaker/ [Accessed on: 08/09/17]

Jade. (2018) Wyong Shire Council v Shirt. [Online] Jade. Available from: https://jade.io/j/?a=outline&id=66842 [Accessed on: 13/01/18]

Latimer, P. (2012) Australian Business Law 2012. 31^st ed. Sydney, NSW: CCH Australia Limited.

Lunney, M., and Oliphant, K. (2013) Tort Law: Text and Materials. 5^th ed. Oxford: Oxford University Press.

Strong, S.I., and Williams, L. (2011) Complete Tort Law: Text, Cases, & Materials. 2^nd ed. Oxford: Oxford University Press.

Turner, C. (2013) Unlocking Torts. 3^rd ed. Oxon: Routledge.

Willans. (2017) Giving free professional advice? You may still owe a duty of care. [Online] Willans. Available from: https://www.willans.co.uk/news/article/giving_free_professional_advice_you_may_still_owe_a_duty_of_care/ [Accessed on: 08/09/17]