exwriter 3 | 250 ☆
Jun 29, 2009 | #1
Rareplants Ltd / ABC Accountants Ltd / Drivers Essays
My friend wrote the below essay. The customer asked for a revision despite the fact that it contained all the necessary information. The customer wanted a 2:2 paper 6 pages long. The below is longer than requested yet the customer wanted more adding. This was a piece for academia research aka masterpapers for which my friend was going to get $30. My friend is away on holiday so could not do revision anyway so asked for this to be reassigned. She was fined $5 for this. Just so the customer cannot use the essay written by my friend I am posting it on here, hopefully plagiarism detector will pick it up as I am guessing the customer is still going to use this.
Rareplants Ltd
In order to advise the parties in this scenario it is necessary to consider the liability of Rareplants Ltd based on a claim under tort law, as well as any claim that might be brought against the company under statutory obligations. This will involve consideration of the Occupier's Liability Act 1957 as well as the Occupiers Liability Act 1984. The main difference between the 1957 Act and the 1984 Act is that the former applies to lawful visitors whilst the latter relates to the duty of an occupier to unlawful visitors. S2(2) of the 1957 Act places a statutory duty on the occupier to
take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted to be there.
Clerk and Lindsell (2000) make the point that the term premises should properly be described as land, as case law consistently demonstrates how the courts have defined the statute to encompass the land owned by the occupier . The occupier of the land has been determined using the 'control test', as defined by Lord Denning in Wheat v Lacon (1966) , where he held that the extent of the control over the land should be the determining factor. In Bailey v Armes [1999] the court held that the managers of a supermarket should not be regarded as the occupiers of the flat roof above the supermarket where they lived as it was outside their accommodation. However, in Ribbie v Norrie [2000] the court held that a landlord who did not live at the accommodation was the occupier has he had the ability to control the area in which the fire had been started.The safety of premises was discussed in Manning v Hope [2000] in which the court held that the lack of a handrail on the staircase was sufficient for the court to conclude that the premises were unsafe. Before the courts will hold another liable the possibility that such harm might be caused has to be reasonably foreseeable. In Nessa v Walsall Metropolitan Borough Council [2000] the court stated that the risk of injury could be regarded as reasonably foreseeable if a reasonable person would have considered the slope on the slide to be dangerous. The court also requires that the risk of injury is sufficient before apportioning liability on the occupier. In Fryer v Pearson [2000] the court felt that as the level of injury was only minimal the risk of injury could not be regarded as significant.
The courts have shown a reluctance to accept claims under the 1957 Act where the plaintiff is partly responsible for their injury as demonstrated in Ingram v Davison-Lungley [2000] , where the court found that the actions of the appellant in turning around on the swimming pool steps was not foreseeable and was an unusual way for the appellant to enter the water.
The 1984 Act offers a degree of protection for unlawful visitors. Extra duty is placed on occupiers for the safety of children trespassing on the land then on adults . This was emphasised in Phipps v Rochester Corporation [1955] where the court stated that the occupier should only have the same degree of care towards the child as the parents of the child would have. Liability for trespassers is imposed if the appellant can prove that the occupier is (a) aware of the danger or has reasonable grounds to believe that it exists; knows or has reasonable grounds to believe that the trespasser is in or may come into the vicinity of the danger; and (c) the risk is one against which, in all the circumstances of the case he may reasonably be expected to offer the other some protection . In Keown v Coventry Healthcare NHS Trust [2006] the court held that despite the fact that the injured party was a trespasser, the Trust owed a duty of care to ensure the premises were safe. The court stated a greater degree of duty was owed as the injured party was a minor and the fire escape was an obvious inducement for a child to want to climb on.
In British Railways Board v Herrington [1972] the Lordships held that there was a limited duty of care to trespassers. In this case the children had wandered onto the railway line due to the failure of BR to repair the fencing. The court held that BR had a duty to ensure the line was properly fenced in so as to prevent anyone from straying onto the line.
Using the above it is likely that the court would hold Rareplants Ltd liable for the injuries to the elderly male, as they failed to make the premises safe for the coach party, despite the fact that certain areas had been roped off and notices displayed. Case law demonstrates that the courts will not uphold the disclaimers for liability in respect of personal injuries, so the notice at the entrance cannot be relied upon to absolve the company for liability.
With regard to the nervous shock claimed by the parents, the courts would have to determine the proximity of the victim to the event as well as the relationship of the parties. In this case it is the mother of the children who disappeared that suffered nervous shock. This would satisfy the relationship requirement as evidenced in McLoughlin v O'Brian [1983] . In this case the plaintiff was the mother of the victim who had come across the immediate aftermath of the accident . The court felt that it was reasonably foreseeable that she would suffer nervous shock and ruled that the relationship of the parties satisfied the proximity test . However, in Hevican v Ruane [1991] a claim for psychiatric harm was rejected on the grounds that the claimant had not witnessed the accident but had been told about it a couple of hours later.
It is likely in the above that the court would award compensation for the injury suffered by the elderly male as well as the nervous shock claimed, as the premises were not safe for visitors, despite the attempts to rope off dangerous areas and the erection of warning signs. The court might also find the company in breach of Health and Safety Regulations, as the walkway was not safe for visitors, and the use of ropes would be inadequate to prevent visitors from straying of the planned route.
ABC Accountants Ltd
This particular scenario will involve a discussion on professional negligence as well as general negligence. With regard to the financial advice a distinction will need to be made between a regulated financial advisor and an unregulated one. The starting point in any claims for negligence is to show that a duty of care existed between the parties . It is then necessary to show that the duty has been breached and as a result of the breach the plaintiff has suffered harm or financial loss .
When considering if a duty of care is owed the courts will look at the proximity of the plaintiff to the damage caused . The principle of proximity has developed from the test applied in Donoghue v Stevenson and is generally applied after a duty of care has been established. The principle of 'fair, just and reasonable' was emphasised in the case of Spring v Guardian Assurance Plc when making a decision concerning the imposition of liability. The case of Donogue v Stevenson marked the advent of the neighbour test the general principle being that 'you must not injure your neighbour'. The neighbour test confers a duty on all persons to take reasonable care to avoid acts or omissions which that person ought to reasonably foresee might cause harm to another.
Having established the elements required to prove negligence it is possible to examine the liabilities of all of the parties in the above situation. Starting with the financial advice and using the principles above it can be established that a duty of care was owed to Lucy to ensure that the advice she was given was correct. If the person giving the advice is aware that the recipient would be relying on their expertise as a financial advisor, and that as a result of this advice they would be likely to invest a substantial amount of money, the person giving this advice can be held liable if the advice is incorrect.
When assessing negligence the court will judge whether the advice given fell below the standard of the reasonable man . The reasonable man standard is not a set standard and the standard required can vary according to the skills that are to be expected of a defendant in that line of work. It is usual for the courts to set a higher standard for a doctor than they would for a road sweeper.
In this case, as the person giving the advice is working as part of a company, Lucy might be able to bring a claim against the company as well as the advisor, using the principle of vicarious liability. In Seymour v Caroline Ockwell & Co [2005] the plaintiff brought an action against both the company and the financial advisor when negligent financial advice caused the plaintiff a financial loss. The court held that the financial advisor was liable for the loss due to the negligent advice but also held the company liable for having failed to disclose information to the financial advisor about the investment that might have impacted on his advice to the plaintiff.
If the person giving the advice is a regulated financial advisor then compensation might be able to be claimed through Financial Services Compensation Scheme if the advisor does not have the financial resources to compensate the plaintiff. In Investors Compensation Scheme Ltd v West Bromwich Building Society the defendant were ordered to compensate the elderly property owners they had given negligent advice to. In this case the defendants were independent regulated financial advisors.
In Hedley Byrne v Heller & Partners Ltd [1964] , a claim for pure economic loss was allowed, after the court found that the respondent had supplied information to the plaintiff which they ought to have known that the plaintiff would rely on. Liability was only avoided as a result of the disclaimer made by the respondent to the plaintiff, prior to the giving of the advice . In Candler v Crane, Christmas & Co [1951] the court held that there was no contractual relationship between the parties and that as a result of the disclaimer, the respondent was not liable for the negligent advice. In Caparo Industries Plc v Dickman [1990] the court stated that it was the duty of the plaintiff to prove that the respondent owed them a duty of care, and that the performance of the respondent was below the standard set by law. There also needs to be a causal link between the actions of the defendant and the damage caused.
Applying this to the above, Lucy could argue that the advice given was negligent and therefore the person given that advice should be held responsible for her losses. She might also be able to claim against the company relying on vicarious liability. However, the comments made before the advice was given could amount to a disclaimer, which could result in the court refusing to hold the respondent liable, especially as the advice was given on an informal basis, rather than a formal consultation.
Drivers A and B
In this case, it is necessary to discuss how the courts might determine negligence, as well as the possibility of a claim for nervous shock by a secondary victim. It is also necessary to discuss the chain of causation in order to determine whether driver B can be held liable for all of the injuries caused, or whether the hospital can be held partly responsible for the additional hospitalisation.
Duty of care was first addressed in Donoghue v Stevenson . As a result of this case the neighbour test came into existence. This case was important because it established the right of the applicant to bring an action against a manufacturer rather than against the retailer. In recent times the courts have altered the principle into the proximity test. This test was used by the courts in Heaven v Pender . The plaintiff in this case was able to persuade the court to hold the employer liable for not providing a safe working environment for the plaintiff. The court held that the staging and ropes were not fit to be used, and that as a result of that the plaintiff was involved in a serious accident. In summing up Brett MR made the observation that
whenever one person is by circumstances placed in such a position with regard to another, that every one of ordinary sense who did think would at once recognise that if he did not use ordinary care and skill in his own conduct with regard to those circumstances he would cause danger of injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger.
It is obvious that driver B owed a duty of care to all other road users to ensure that his driving did not fall below the standard of the reasonable man. As a result of his negligent driving, driver A has sustained injuries, therefore, it is likely that the court would hold driver B responsible for the harm caused.
Driver B could face charges for dangerous driving. Archbold (32-37) describes dangerous driving in the following manner
A person drives dangerously when the way he/she drives falls far below what would be expected of a competent and careful driver AND it would be obvious to a competent and careful driver that driving in that way would be dangerous.
Under section 2A(1) of the Road Traffic Act 1988 both parts of the above definition must be present for the driving to be considered dangerous. 'Far below' is not defined by statute but the danger of causing serious injury to a person of property would be regarded as 'far below '. Dangerous driving can be averred if the condition of the vehicle is considered to be dangerous . A finding of dangerous driving would entitle driver A to claim compensation for his injuries.
Driver B could try to limit his liability for the harm caused by demonstrating that the injuries were made more severe as a direct result of the negligent treatment by the doctor. Driver B could argue that the actions of the medical staff broke the chain of causation , and that liability should be apportioned between himself as well as the hospital. In R v Jordan [1956] the court concluded that the initial injury was not the operative cause of the victim's death. The court stated that the victim would have survived if the hospital treatment had not been negligent. However, in R v Mellors [1996] , the court refused to accept that the chain of causation had been broken, despite the evidence of the negligent treatment given by the hospital . The courts reached a similar conclusion in R v Smith . In R v Dyos the court apportioned liability between the respondent and the hospital, as the plaintiff could not prove that all the injuries suffered were a direct result of the actions of the respondent.
With the claim for nervous shock it is necessary to consider the proximity of the plaintiff to the incident. In this case, the plaintiff was errantly told that the injuries were significantly worse then they actually were, and claims nervous shock as a result. Given that she would be regarded as a secondary victim, and that she was not in close proximity at the time of the accident, the court may well decide not to award compensation for such harm. The test of foreseeability and proximity was evidenced in Alcock and Others v Chief Constable of the South Yorkshire Police [1991] , in which Lord Oliver made the point that 'the elements of immediacy, closeness of time and space and direct visual or aural perception', are essential in order for a claim for psychiatric harm to succeed.
In order to claim for psychiatric harm the plaintiff has to prove that they are suffering from a recognised psychiatric illness. In Alcock the court refused to accept claims were the plaintiff was merely suffering from grief, anxiety, fear or distress . In general, awards are only made where the effects are long lasting. Watching a relative slowly dying was not considered to satisfy the rule for a claim for psychiatric harm in Sion v Hampstead Health Authority [1994] . For such a claim to succeed the court felt that the illness would have to have been triggered by shock from the original incident.
Applying the above to the scenario, it would seem likely that driver B would be ordered to compensate driver A for the injuries suffered, although part of this liability might be apportioned to the hospital. In relation to the nervous shock, the wife of driver A is unlikely to succeed as she was not in close proximity to the incident.
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