Discuss About The Constitute Obvious Occurrence Professional.
In the present scenario, it can be stated that Brownwood Mining and Power ( BMP) is liable under the law of tort for causing harm to the general public to a large extent. In this regard, the essential elements of tort can be explained as-
The defendant is at the authority to owe a duty of care to the plaintiff. In this context, the concept of proximity can be discussed which was established in a landmark case of Donoghue v Stevenson (1932) where it was observed that the plaintiff consumer ginger beer without noticing the contents of the bottle which contained a decomposed snail. The Court held the manufacturer liable for breach of duty to take care. In Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] it was held that the duty of care did not exist between the engineer and the owners of commercial premises. However, in Bryan v Maloney [1995] HCA 17; 182 CLR 609; 128 ALR 163, it was observed that the builder had certain duty of care to the purchaser to take reasonable care of the house in his absence but failed to do so. In this case, it was observed that the plaintiff was entitled to claim for damages for the loss occurred. In Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004] HCA 16, it was held by the Court that between the builder and the purchaser, the vendor is at the authority to assign certain rights under the building contract. The nature of the contract may be direct so the purchaser is at the liability to sue the builder depending upon the building contract. Therefore, the nature of the contract should be such to allow the vendor to assign its responsibilities with or without prior consent of the builder.
According to the English law, there is a duty of care on the part of one person to another to limit them from causing unreasonable harm (Meagher and O’Day 2015). In Caparo Industries Plc v Dickman (1990) three main questions were considered by the Court while conducting the test in order to measure that whether there was a duty of care. These are:
In Paris v Stepney Borough Council [1951] AC 367 it was observed that there was a duty of care on the part of the defendant which he failed to perform. In this case, the plaintiff was hired by the defendant for vehicle maintenance. However, in such process the plaintiff suffered injury in his one eye as no safety precautions were taken by the defendant. Therefore, it was held by the Court that the defendant did not perform the duty of care. Similarly in Latimer v A.E.C., [1953] AC 643 it was observed that unseen forces could also affect the nature of duty of care. In this case as a result of heavy rainstorm it flooded the floors of the factory. As a result of it oil rose to the surface of the floor and due to this the claimant slipped and was injured. It was held by the Court that the occupiers of the factory were responsible for the injury as they did not make the floor safe before such incident could have occurred.
Therefore, in the present scenario, it can be stated that there was a duty of care on the part of Brownwood Mining and Power (BMP) as they have employed the Worldwide Electrical Company Ltd (WWE) to conduct electrical operations in the mine. Therefore, Brownwood Mining and Power was at the duty to take care as the operations was performed in a residential area. The Worldwide Electrical Company Ltd was given strict deadlines to follow by the Brownwood Mining and Power. Therefore, they had to perform the task even knowing the harmful consequences of it. However, the nature of the duty was such which could be foreseen by the Brownwood Mining and Power and in spite of having adequate knowledge about the nature of the risk they have employed the Worldwide Electrical Company Ltd to carry on the operation under strict deadlines. Therefore, it can be stated that Brownwood Mining and Power is liable under the law of torts for the damages caused to the general public to a large extent.
The doctrine of strict liability was introduced in order to improve the existing safety working conditions in factories. The doctrine of strict liability can be well explained with the help of landmark case Rylands v Fletcher (1866) LR 1 Ex 265. In this case, it has been established that in certain cases individuals may not be liable for the harm caused by them (Meagher and O’Day 2015). He may not be negligent in his act or there may not be any intention on his part to cause the harm. Therefore, the ‘no fault liability’ has been recognized by the law. The rule that has been depicted in Rylands v. Fletcher is also known as the Rule of Strict Liability. In this regard, it is noteworthy to mention here that the doctrine of ‘No Fault Liability’ was later recognized by the House of Lords to be ‘Strict Liability’. In Rylands v Fletcher (1866) LR 1 Ex 265 it was observed that the defendant employed some independent contractors to construct a reservoir for the purpose of supplying water to his mill. However, there were existing old disused shafts beneath the site where the reservoir was intended to be constructed. The contracts failed to notice those shafts and did not block them. After water was filled in the reservoir, it busted and flooded the adjoining coal mines of the plaintiff. In this case, it held that though the defendant was not negligent in his act, he was still held liable. Therefore, the rule of strict liability was developed so that the defendant can escape liability. However, for the rule to apply three essentials must be there-
According to this rule, in order to escape liability from one’s land there must be a presence of a dangerous thing.
The rule of strict liability could be applied in cases where the thing causing damage has escaped. In this regard, it is worth noting that the thing must be such that it is outside the control of the defendant.
When there is a presence of non-natural use of land, the defendant can escape liability which was evident in Rylands v Fletcher (1866) LR 1 Ex 265.
In general, an individual is liable for his own act however; in some cases individuals are liable for the wrongful acts done by others. In this regard, the rule of vicarious liability arises that is the liability of one person for the done by another. Vicarious liabilities can be applicable in cases involving-
When a principal authorizes an agent to work on his behalf, the principal shall be liable for the act done by his agent. In Anchor Brewhouse Developments v Berkley House Ltd [1987] EGLR 172 it was observed that the principal was held liable for the act of negligence on the part of his agent.
The relationship between partners is equal to that of a principal and an agent. A partner is equally liable for the acts done by another. In a similar way a master is also responsible for the acts of his agent. However, in some cases servants who exceeds the control of the maters. In this regard, it is worth mentioning that there exists a distinction between a servant and an independent contractor. A servant works under the supervision of his master and cannot perform independently. On the other hand, an independent contractor undertakes a task assigned to him by the owner. In this regard, the independent contractor is at the authority to perform the work according to his free will. He is not under the control of the person who has assigned him with the job. In Northern Sandblasting Pty Ltd v Harris [1997] HCA 39 it was observed that a nine year old gil died as a result of electrocution when the water tap was turned off by her. It was seen that the independent contractor was hired by the owner of the premises for the purpose of repairing defective appliances. In this case, the independent contractor was held liable for leaving the premises in a condition which could cause dangerous accidents. It was held in Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13 that an independent contractor can be engaged by the builder to carry out architectural or engineering operations; however in case of negligence on the part of such independent contractor, the builder shall be held liable. In this case it was observed that the Burnie Port Authority owned a building in which frozen vegetable were stored by General Jones. However, an independent contractor was employed by such authority for the installation of extra electrical refrigeration and electrical equipments in the building. As a result of this, sparks caused and the stock of the plaintiff was damaged. Burnie Port Authority was held liable in this case. In Sydney Water Corp Limited v Aqua Clear Technology Pty Limited (1995) it was held that an independent contractor shall be held liable if there was a presence of unreasonably subjective assessment which could result into loss of major contract on the part of the contractor. In this case, it was observed that the architect was largely depending upon the ability and the capacity of the independent contractor. Therefore, in such case, the independent contract shall be held liable. In Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 it was observed that the architect has the authority to sue on the basis of injury to his work and reputation, if it has been criticized on any grounds.
Therefore, in the present scenario, it can be observed that both Brownwood Mining and Power (BMP) and Worldwide Electrical Company Ltd (WWE) were equally liable for the injuries caused to the general public. The case of Rylands v Fletcher (1866) LR 1 Ex 265 can be referred in the case of Brownwood Mining and Power in regard to the doctrine of strict liability. It can be observed that Brownwood Mining and Power had the knowledge regarding the harmful consequences of the work. They were aware of the fact that such an act could possibly harm the public and create hazardous damage. In spite of knowing the consequences, they emphasized on cost and not safety measures. Therefore, it can be stated that Brownwood Mining and Power cannot escape liability by applying the principle of strict liability. Similarly, Worldwide Electrical Company Ltd (WWE) was employed by Brownwood Mining and Power as independent contractors to carry on the operations in the mine. Therefore, Brownwood Mining and Power was at the authority to take care of safety measures as it not an independent contractor and not a servant which was observed in Tarry v Ashton (1876) 1 QBD 314. They were aware of the fact that the nature of the work involved high risk. In spite of knowing this they removed fire safety equipment systems and sprinkler systems. Therefore, in the present scenario, it can be stated that Worldwide Electrical Company Ltd (WWE) cannot escape liability by applying the principle of vicarious liability.
In the present case, there is an existence of legal liability. However, various limits can be imposed on the recovery of the classes of people listed above. There are strict time limits which are applied while making a claim for personal injury. The Australian Limitation Act 1969 addresses these limitations from time to time. In this regard, it can be noted that the considerable period to bring a suit for accident claim for compensation of damages is minimum three years. However, failure to commence the action of the Court within the stipulated period of three years, the claim for personal injury shall become time-barred.
Therefore, in the present case study it can be observed that as a result of negligent act on the part of Brownwood Mining and Power (BMP) and Worldwide Electrical Company Ltd (WWE). It can be observed that, houses were burnt and people were hospitalized as a result of smoke and haze caused by fire. It is observed that as a result of this business enterprises has no close down as their operation were hampered as a result of the closeness to fire and even workers could not return to duty as a result of the hazardous activity. In this context, it can be rightly stated that as strict limitations has been applied to claims related to personal injuries, the victims are at the authority to bring a claim for damages for personal injury which is limited to a period of three years.
Time limits in civil claims existed in Australia from the very beginning which has been treated as a matter of public policy (Goldberg and Zipursky 2016). In case of claims related to personal and professional negligence, the person injured is insured with a degree of certainty in relation to the duration of financial exposure to the claims (Feinman 2015). Therefore, time limits have been imposed by the Court for the purpose of efficient adjudication. However, sensible time limits have been imposed for the purpose on ensuring fair trials of compensatory claims (Solheim 2018). Therefore, in this way it can be observed that there was a reduction in rates of stale claims as a result of such limitation. However, the quality of the evidences in recent years considerably diminished overtime. The Limitation Act 1969 clearly addresses the relevant claims and their time period that could be brought before the court (Wildavsky 2018). A claim in tort regarding professional negligence can be brought before the Court within a period of 6 years from the date on which the damage occurred. A claim for breach of a contract can be brought before the higher authority within a period of six years from the date when such breach took place (McDonald 2015). In case when the person claiming compensation is not aware of the amount of the financial loss suffered by him during that time, he is at the authority to bring a claim for financial within a period of six years from the date of occurrence or within a period of three years at the earliest possible date when the sufferer has the knowledge that he requires to bring a claim for his injury (Luntz et al. 2017). In cases which involves claim for negligence related to personal injury, cannot be brought before the Court for claim for compensation before a period not more than 15 years 15 years after the end of the actual date on which such act or omission took place. Even if the prescribed time period expires, the injured party has the right to claim for damages.
Therefore, it is important on the part of the injured p[arties to gain appropriate knowledge regarding the nature of the negligence before bringing a claim of action before the court. In this regard, it can be commented that an individual has various grounds for pursuing a claim of professional negligence (Kakkar et al. 2015). The injured party may have a period of 6 years to claim from the date the loss has occurred however; he may have 3 years from the day he acquired knowledge regarding the damage (Henderson 2017). The final period to bring a claim of action is limited to a maximum period of 15 years.
Therefore, it is essential on the part of the individuals to bring an action for claim within the stipulated period or before the expiration of the time period before the appropriate Court (Grenier et al. 2015).Failure to comply with the prescribed time period will create further delay and the person may not be able to claim further if the time period expires (Goldberg and Zipursky 2016). It is worth stating that, limitations to damage claims provides appropriate defense to claims of professional negligence (Fortney 2016). However, according to the current standards laid down by the bar for successful negligence claims, the time limits could be postponed or varied by agreements (Deakin 2018). However, the nature of the consequences that exists within such agreements is complex in nature. Failing to comply with the objectives of the agreement within the stipulated time period for bringing an action of claim, the parties could face serious consequences (Backof 2015). Therefore, it is important to take reasonable care while giving consent to such agreements. The above-mentioned time limits can be extended and thereby can be affected by conduct when the claim involved is based on fraud related to professional or personal negligence.
Therefore, after evaluating the above mentioned problems experienced by the persons it can be stated that the injured persons are at the authority to bring an action of claim for damages against Brownwood Mining and Power (BMP) and Worldwide Electrical Company Ltd (WWE) on the grounds of both personal and professional negligence. However, it is important on the part of the injured parties to take action within the stipulated period.
References:
Anchor Brewhouse Developments v Berkley House Ltd [1987] EGLR 172.
Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225.
Barnett v Chelsea and Kensington Hospital Management Committee [1969] 1 QB 428.
Blyth v Birmingham Waterworks [1856] 11 Exch 781.
Bryan v Maloney [1995] HCA 17; 182 CLR 609; 128 ALR 163.
Burnie Port Authority v General Jones Pty Ltd [1994] HCA 13.
Caparo Industries Plc v Dickman (1990).
Donoghue v Stevenson (1932).
Latimer v A.E.C., [1953] AC 643.
Northern Sandblasting Pty Ltd v Harris [1997] HCA 39.
Northern Sandblasting Pty Ltd v Harris [1997] HCA 39.
Paris v Stepney Borough Council [1951] AC 367.
Rylands v Fletcher (1866) LR 1 Ex 265.
Sydney Water Corp Limited v Aqua Clear Technology Pty Limited (1995).
Woolcock Street Investments Pty Ltd v CDG Pty Ltd [2004].
Journals:
Backof, A.G., 2015. The impact of audit evidence documentation on jurors’ negligence verdicts and damage awards. The Accounting Review, 90(6), pp.2177-2204.
Deakin, S., 2018. ORGANISATIONAL TORTS: VICARIOUS LIABILITY VERSUS NON-DELEGABLE DUTY. The Cambridge Law Journal, 77(1), pp.15-18.
Feinman, J.M., 2015. Liability of Lawyers and Accountants to Non-Clients: Negligence and Negligent Misrepresentation. Rutgers UL Rev., 67, p.127.
Fortney, S.S., 2016. A Tort in Search of a Remedy: Prying Open the Courthouse Doors for Legal Malpractice Victims. Fordham L. Rev., 85, p.2033.
Goldberg, J.C. and Zipursky, B.C., 2016. Triangular Torts and Fiduciary Duties.
Grenier, J.H., Lowe, D.J., Reffett, A. and Warne, R.C., 2015. The effects of independent expert recommendations on juror judgments of auditor negligence. Auditing: A Journal of Practice & Theory, 34(4), pp.157-170.
Henderson Jr, J.A., 2017. Learned Hand’s Paradox: An Essay on Custom in Negligence Law. Cal. L. Rev., 105, p.165.
Kakkar, M., Thakkar, R., Karunakaran, A., Mishra, H., Dinesh, A. and Yadav, D., 2015. Professional Negligence and its Legal Implication in Dental Practice: A Review. Journal of International Oral Health, 7(10), p.148.
Keating, G.C., 2017. Response to Fox: Impaired Conditions, Frustrated Expectations, and the Law of Torts. Colum. L. Rev. Online, 117, p.212.
Luntz, H., Hambly, D., Burns, K., Dietrich, J., Foster, N., Grant, G. and Harder, S., 2017. Torts: cases and commentary. LexisNexis Butterworths.
McDonald, C., 2015. Torts Law: Blurred Elements: The Nebulous Nature of Foreseeability, the Confounding Quality of Misfeasance, and the Minnesota Supreme Court’s Decision-Doe 169 v. Brandon. Wm. Mitchell L. Rev., 41, p.365.
Meagher, A.L. and O’Day, M.P., 2015. Who Is Going to Pay for My Impact-A Contractor’s Ability to Sue Third Parties for Purely Economic Loss. Constr. Law., 25, p.27.
Robinson, G., 2015. Construction Law-Texas Supreme Court Shields Design Professionals from Economic Liability in Negligent Misrepresentation Suits. SMUL Rev., 68, p.299.
Solheim, J., 2018. Health-Malpractice, Negligence, or Breach of Duty: The North Dakota Supreme Court Holds That the Performance of a Surgery other than the One Identified on a Consent Form Does Not Constitute an Obvious Occurrence of Professional Negligence. NDL Rev., 93, p.143.
Wildavsky, A., 2018. From Individual to System Blame: A Cultural Analysis of the Historical Change in the Law of Torts (with Daniel Polisar). In Cultural Analysis (pp. 171-198). Routledge.
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