Principles of Common Law

Question 1

What is the purpose of civil law?

Answer 1

Following an accident, the purpose is to compensate for loss rather than punish the wrongdoer

Question 2

Briefly explain what is meant by a civil action; in terms of what it involves

Answer 2

A civil action generally involves individuals; a claimant suing a defendant for a remedy or remedies. In most cases, the remedy takes the form of damages, a form of financial compensation. A civil case must be proved on the ‘balance of probabilities’.

Question 3

Name the two types of civil courts

Answer 3

The County Court and the High Court

Question 4

Following an accident at work, the injured person or his dependents may choose to sue the person they consider responsible for the harm. What are the two torts that can be used for doing this?

Answer 4

Negligence
Breach of Statutory Duty

It is possible to bring both civil actions at the same time in what is sometimes called a double-barreled action.

Question 5

What is meant by ‘Negligence’?

Answer 5

Negligence implies a failure to do something that would be expected in the circumstances (an omission) or careless behavior (an act) - it is a failure to discharge a duty of reasonable care.

Question 6

List the main elements that need to be proved in order to successfully sue for negligence

Answer 6

That the defendant was under a duty of care to the claimant. Establishing this depends on a number of factors, including whether the harm to the claimant was reasonably foreseeable (neighbor test).

That the duty had been breached through negligence, i.e. the act or omission fell below the standard expected.

That, as a result of the breach the claimant suffered harm. There must be a causal link between the breach and the harm; the harm suffered cannot be too remote a consequence of the breach.

Foreseeability of the type of damage. The type of damage would have been reasonably foreseeable as a result of the negligent act.

Question 7

Explain what is meant by the ‘Neighbor Test’

Answer 7

The case of Donoghue v Stevenson (1932) established the need to avoid acts or omissions that would be likely to injure your neighbor.

A neighbor is anyone to whom acts or omissions could reasonably, foreseeably cause harm.

Question 8

List the general duties that are owed by and to various parties.

You will need to link each relationship.

Answer 8

An Employer owes a duty to Employees

An Employer owes a duty to Contractors

An Employer owes a duty to Visitors

An Employee owes a duty to other Employees & Contractors on the premises

A Contractor owes a duty to the Employer, Employees and other Contractors

A Manufacturer owes a duty to Suppliers and Consumers

Question 9

List the individuals involved in the Duty of Care process within the Designer, Manufacturer and Supplier industries.

Answer 9

Manufacturer
Wholesaler
Retailer
Purchaser
User

Question 10

Name the case responsible for creating the law of tort and the precedent set.

Answer 10

Donoghue v Stevenson (1932)

As a result of this case, any person injured due to a defective product can sue. This includes any bystander who happened to be around when the product caused harm.

Question 11

Are visitors to premises owed a duty of care? if so, who by and under what statute law?

Answer 11

A visitor to premises is owed a duty of care by the person in control of the premises.

Apart from the common law duty, statutory duties are also owed under the Occupiers Liability Acts 1957 and 1984.

Question 12

Are Clients and Contractors owed a duty of care? if so, who by and give a case law example.

Answer 12

If a Client appoints a contractor to do work, then each party will owe a duty of care to the other.

These duties apply even though an employee may be working on a third party’s premises or where an employee has been hired out to another employer, but where the control of the task still lies with the permanent employer.

Consequently, the test of whether or not an employee has been temporarily employed by another is one of ‘control’.

Mersey Docks and Harbour Board v Coggins and Griffiths (Liverpool) Ltd (1946) involved an Employee working for a second party, hired out by his original employer. As the authority to direct the employees method of work had not been transferred, the original employer was held to still be liable for the accident.

Question 13

Briefly explain the three stage tested for establishing the ‘Extent of Duty’ using the original case law.

Answer 13

The test was stated in Caparo v Dickman (1990) and asks three things:

Reasonable Foreseeability
Proximity
Is it fair, just and reasonable to impose a duty

In negligence cases, claimants have to show that the harm they suffered was reasonably foreseeable. In Corr v IBC Vehicles Ltd (2008) a serious accident occurred from a malfunctioning machine causing Mr Corr severe head injuries. Mr Corr suffered subsequent depression and PTSD and six years late committed suicide. IBC, Mr Corr’s employer was held liable for his death because the acute depression and PTSD which resulted from the negligence made it reasonably foreseeable that he would commit suicide.

Proximity refers to the closeness between the two parties. In Bourhill v Young (1943) the claimant was getting off a tram when she heard a motor accident. She did not see the accident but later saw blood and the remains of a person on the road and suffered psychological harm. The House of Lords held that it was reasonably foreseeable that some people would suffer harm as a result of the defendants negligent driving, but injury to the claimant was not foreseeable as she was so far from the accident and was therefore owed no duty of care.

Is it fair, just and reasonable brings the concept of public policy and whether it is reasonable to provide compensation.

This test was used following the Hillsborough disaster in 1989.

Question 14

Briefly explain the Greater Duty of Care to Vulnerable Individuals using case law

Answer 14

The courts recognize that some individuals are owed a greater duty of care than others.

In Paris v Stepney Borough Council (1950) the claimant had sight in only one eye and was employed in a job that involved some risk of eye injury. At that time, there was no statutory duty to provide eye protection. The claimant was subsequently injured in the one good eye and was therefore blinded. The defendants were held to be liable because the consequence to Mr Paris was greater that to a worker with sight in both eyes, so the greater the risk to the individual then more extensive precautions should be adopted.

Question 15

Briefly explain the Duties Owed by Employers to Employees and Others using case law

Answer 15

The common law duties of an Employer were identified in general terms in Wilsons and Clyde Coal Co. Ltd v English (1938).

The common law requires that all Employers provide and maintain the following:

A safe place of work with safe means of access to and egress from it

Safe systems for doing the work

Competent and safe conscious personnel

Appropriate supervision, information, instruction and training

Safe appliances, equipment and plant for doing the work

The duties apply not only to the physical safety of the employee but also to their Health, including their mental health.

Sutherland v Hatton (2002) represented a series of appeals created as a result of work related stress. The key issue in determining liability by an employer is that of foreseeability i.e. could the employer have reasonably foreseen that individual suffering ill health as a result of work-related stress.

Question 16

Briefly explain the Safe Place of Work requirement using case law

Answer 16

In Latimer v AEC Ltd (1953) a heavy rainstorm flooded the floor of a factory. This resulted in oil that was normally in troughs on the floor being washed onto the floor. The defendants put sawdust onto the floor to prevent employees slipping but there was not enough to cover the entire factory floor. The Claimant slipped and broke his ankle. The defendants were not liable because they had acted reasonably, short of closing down the factory, to prevent injury to their employees.

The Employer’s duty to provide a safe place of work also extends to means of access to and egress from the place of work - it would clearly be unreasonably to require that an employee be made safe at the place of work, while not also requiring that the same employee should not be at risk while going to or leaving that workplace on his employers land.

Question 17

Briefly explain the Safe System of Work requirement using case law

Answer 17

In General Cleaning Contractors v Christmas (1953), the claimant was a window cleaner, employed by the defendant to clean their clients windows. The Client’s premises had sash windows 29 feet above the ground.

The system adopted was to clean the outside windows from the inside as much as possible, then get out on the sill and clean the top sash while holding on with the other hand to the base of the top sash.

As occassionally happens with sash windows, the sash fell, dislodging the claimants hand and he fell. He sued for negligence due to an inadequate safe system of work. There were two safe ways of doing the job, first using ladders, or second to have bolts and a safety belt. Neither was very practicable and it was argued that this was not usual practice. It was held that the defendants could at least have devised wedged or a bar to hold the sashes firmly.

Question 18

Briefly explain the Safe Plant, Equipment and Materials requirement.

Answer 18

The Employer has a duty of care under common law to provide safe plant, equipment and materials for use at work. This extends to situations where the employer inadvertently provides defective equipment.

Question 19

Briefly explain the duty for the Provision of Reasonably competent employees: Instruction, Training and Supervision using case law.

Answer 19

This common law duty was set out in Wilsons and Clyde Coal Co. Ltd v English (1938).

Implied in this duty, is not only the selection of competent staff in the first place but also the provision of adequate instruction, training and supervision for existing staff in order to maintain and extend their competence.

In Hudson v Ridge Manufacturing Co. Ltd (1957), the circumstances were that the employer was aware of an employees tendency to indulge in horseplay at the expense of his colleagues and had frequently issued reprimands and warnings. As a result of a prank by the employee, one of his fellow workers suffered a broken wrist. The judgement was that the employer must have known that eventually known his behaviour would result in injury. The Employer was, therefore, in breach of the common law duty to provide competent staff.

Question 20

List the damage for which the tortfeasor is liable

Answer 20

Physical injury
Psychological Harm
Property Damage
Medical Expenses
Loss of Income

Question 21

Explain what is meant by Vicarious Liability

Answer 21

An Employer is primarily liable for his or her own negligence but may also be liable for the negligent acts (or omissions) of employees. This secondary liability is called vicarious liability; so, even though the employer may be entirely blameless, they nonetheless become liable. One reason for this is to enable the injured person to get compensation by suing the employer who has insurance rather than the negligent employee who may have no financial resources and is therefore not worth suing.

Question 22

Provide a case law example of where an Employer is not and also, where he is vicariously liable for negligence of an employee.

Answer 22

Smith v Crossley Bros Ltd (1951) an unfortunate practical joke case concerned the acts of two young men who cause compressed air to enter the body of another young man. It was held that these men were doing an act that was not in the course of their employment.

Mersey Docks and Harbour Board v Coggins and Griffiths (Liverpool) Ltd (1946), the employee was working for a second party, hired out by his original employer. As the authority to direct the employees method of work had not been transferred, the original employer was held to still be liable for the accident.

However, in Hudson v Ridge Manufacturing Co Ltd, the outcome was different. An employee’s wrist was broken when a colleague wrestled him to the ground as a practical joke. The colleague was a known practical joker and had a reputation for playing pranks. The employer had been aware of this for years. Therefore, the employer was found to be liable because it was obvious that the joker posed a danger, but it had done nothing to prevent him from committing further pranks.

Question 23

Briefly explain Liability for Negligence of Independent Contractors

Answer 23

Those who use independent contractors are not generally liable for the negligence of a contractor, provided steps were taken to ensure the contractor was reasonably competent. There are, however, exceptions when it is likely that both parties would be held to be liable:

Where the employer takes over and directs the work of the independent contractor

If the employer did not take reasonable steps to ensure the contractor was competent

Where the employer is under a statutory obligations involving strict liability

Where the contractors work is done on or over the highway or some other place where the public has access.

Question 24

What is the ‘Date of knowledge’ and why is it important?

Answer 24

What is reasonably foreseeable depends on what is known at that time about the harm the hazard can cause. For many hazards, the associated risks will be obvious but with some hazards the risks may not be apparent.

The date of knowledge implies that before that date, the risks were not widely known and therefore an employer could not be expected to take precautions.