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Published: Fri, 02 Feb 2018
To prove negligence a claimant must establish a duty of care
The central issue is whether Naomi can pursue a claim in negligence against the electrician Simon, as a result of the errors he made whilst rewiring her property and the damage that she encountered due to those errors. Negligence is the breach (by the defendant) of a legal duty to take care resulting in damage (to the claimant).
To prove negligence, a claimant must establish: a duty of care; a beach of that duty; factual causation (‘but for’ causation), legal causation; and damages. Defences may be used such as contributory negligence in some cases. The claimant has the burden of proof and must proof his/her case beyond the balance of probabilities.
The key question arises here concerning a duty of care. Many courts litigate a duty of care as a preliminary matter, since if a duty is not found as a legal matter, there is no need to litigate the other elements of negligence, which are factual in nature. Therefore, we will address duty of care in this question first. In the current situation a duty of care is owed by the defendant, Shock to the claimant, Gamble. Stansbie v Troman is the most relevant case on point. In this case a carpenter was found to owe a duty of care after failing to secure the safety of a property that he had been employed to work for. It was found that a contractual relationship would have a simultaneous effect on tort law. In regards to the physical safety of the property in this situation, the same principle can be applied here.
The next step is a two step analysis to (a) set the standard of care; and (b) assess whether there was a breach of that standard. The general standard was defined by Lord Aitkin in Donoghue v Stevenson. He argued “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbor.” Therefore, the defendant must at all time take into account the forseeabilty of the risk and cost of measures to prevent the risk from occurring to the claimant. In Nettleship v Weston it was argued that an inexperienced defendant is held to the standard of the reasonably competent and experienced defendant engaged in that activity. The reasonable man test is used, that where in this instance an electrician professes to be an electrician he must do so and express skills to a reasonably competent standard of that of an electrician.
Thus, on this principle the fact that Shock was a professional electrician allows no excuses, and on this basis as a result of the facts that have been stated, he has undoubtedly fallen below that reasonable standard of care and a breach can therefore be established.
As a breach has been determined, it is now important to verify whether the actual breach caused the damage that ensued. Essentially a nexus needs to be provided between the defendants breach and the claimant’s damage. Two types of causation also need to be considered, factual causation and legal causation. In terms of factual causation using the ‘but for test’ derived from a significant case Barnett v Kensington & Chelsea Hospital,
the question that needs to be addressed is whether but for the defendants (Shock) act or omission would the claimant (Gamble) have suffered the shock anyway. If the defendant had rewired the electrics in her property to a reasonable standard required by that of a professional electrician, and foresaw the risk of potential danger and harm his negligent actions as a direct consequence would cause, then her property would not have been damaged and she would not have suffered the initial severe burns to her face and hands. Hence, factual causation has been satisfied. However, problems later arise due to the additional scarring that occurs, had she arrived at the hospital 20 minutes earlier, she would not have suffered permanent scarring resulting from her injuries.
Using the test of McGhee v National Coal Board, a man who worked with brick dust contracted dermatitis and his employers did not provide him with showers. As a result of the absence of showering facilities increased his risk of dermatitis. It could not be known whether if he had taken showers and whether this would have lowered his chance of contracting it. Nonetheless it was held that there was no difference in materially causing the damage and materially substantially increasing the risk of harm. In regards to Gamble, the creator of the risk, Shock, must be taken to have foreseen the possibility of damage, yet the failure of the ambulance service to arrive in term meant that her scarring increased.
Thus, as there are multiple tortfeasers the electrician and the Ambulance Service the court is likely to apportion blame between them reminiscent of the case Fitzgerald v Lane & Patel and both should bear its consequences.
The next step is to determine whether any legal causation has been satisfied. There are two approaches towards understanding legal causation. (a) Was the harm directly caused by the defendant’s act? (b) Was the incident reasonably foreseeable?
In the case of Mckew v Holland the claimant had a leg injury in the course of employment which made the leg give way suddenly. He sprinted down the stairs, without a handrail and as a result he fractured his ankle severely. In this situation Gamble, was advised buy the doctors to use cold water to try and lessen the injury of her wounds. Like Mckew, Gamble herself is a Novus Actus as she ignored the doctors warning and knowingly increased her own risk of harm. Therefore, Gamble broke the chain of causation between the defendants conduct and her ultimate harm. The defendant cannot be held liable in this instance; however in terms of remoteness another test will need to be applied to prove so.
Under the Wagon Mound case it was held that it was reasonably unforeseeable that fuel oil spread on water would catch fire. However, on this occasion it is perfectly foreseeable that faulty electrics would jeopardise the safety of the claimant’s property and more significantly cause imminent harm to her. Consequently, a fire is foreseeable as a direct result of faulty electrics and additional scarring ensuing from the fire. The fact that her burns led to permanent scarring can be envisioned using the case of Hughes v Lord Advocate. In both circumstances the sheer impact of the fire/blast meant they both suffered severe burns. Thus the faulty electrics were a known source of danger which caused injury through a foreseeable sequence of events and therefore defendant is liable for because the type of injury was foreseen.
In Vacwell Engineering v BDH Chemicals it was argued that once the claimant suffers damage of the same kind as that which is reasonably foreseeable, ‘the defendant is liable for the full extent of those damages, even if the extent is greater than that which would normally be expected’. Therefore, the same principle can be applied here.
In terms of assessing how much damage the claimant would be able to claim for it is first important to calculate what type of damage has been caused. As a rule it is very difficult to claim for pure economic loss, this is to avoid crushing liability. The claimant is usually able to claim for economic loss if it is a consequence of physical injury or damage to the claimant’s property. Thus, the claimant here can claim for property damage it would be reasonably foreseeable that the burning as a result of the fire and all the losses associated from the fire i.e. contents of her property would be consequential economic loss as stated in Spartan Steel & Alloys Ltd Martin.
The cancellation of the event in which the claimant was supposed to perform can be reasonably foreseeable under Wagon Mound (1). The burns would have prevented her from performing as a result of the fire caused directly by the faulty electrics. Therefore, she would be able to claim for this under consequential economic loss.
The next type of damage she could claim for would be speculative loss, loss of future earnings and modeling career. The claimant would have to prove a substantial amount of loss in order for her claim to succeed. The question would be how close was she to fruition in her modeling career? On the facts that have been given she had already managed to secure a lucrative modeling contract and was meant to perform at the Christian Deplore event. Thus, it can be argued that this type of loss was not too speculative and thus she can claim.
The main possible defence that the defendant could utilize would be contributory negligence on behalf of the claimant. The claimant failed to listen to the doctor’s instructions and observe her wounds by using cold water to prevent further scarring, a fact in which she admits. Under The Law Reform (Contributory Negligence) Act of 1945, there would be an apportionment of liability as a result of contributory negligence, reminiscent of the same principle under Fitzgerald v Lane & Patel. As a result the damages that would be recoverable will be reduced as a result of the claimant’s share of damage and this it would be argued would be seen as ‘just and equitable’.
Naomi Gamble v Ambulance Service (further scarring)
Under Kent v Griffiths, the Court of Appeal argued that the ambulance service is distinguishable from the Fire Brigade Service in that it can be seen as an extension of the National Health Service, which is understood to owe a duty of care towards its patients. Once the ambulance service accepts the call and says ‘an ambulance is on its way’ it must be seen as providing a service to that individual and crucially the individual is the only one that could be harmed as a result of the ambulance services negligence when responding to that individual.
In Kent v Griffiths the reasonable time for an ambulance to arrive was 14 minutes. Here it is stated that the ambulance arrived 45 minutes after the call, and no valid reason seems to be cited. Thus, evidently there is a clear breach.
In terms of factual causation ‘but for’ if there had been no breach on behalf of the ambulance service, she would have still had burns, but if she had arrived on time, 20 minutes before she may not have suffered the scarring resulting from her injuries. Factual causation therefore has been satisfied. The courts would then apportion blame to Shock and the ambulance service as they did in Fitzgerald v Lane & Patel.
Mckew v Holland can be used to demonstrate legal causation as the claimant was a Novus Actus in the chain of causation as stated by not attending to her wounds when advised by the doctor.
Even though the electrician, the first defendant had caused her injury it is not too remote to argue that using Wagan Mound (1) it is reasonably foreseeable that by not arriving within a given reasonable time of 15 minutes, her burns would have worsened as a result of the immediate treatment that should have been given if the ambulance service had arrived on time.
The same defences can be used, contributory negligence as previously stated.
Naomi Gamble v Fire Service (Further scarring)
It was argued that under Capital & Counties plc v Hampshire the Fire Brigade does not have a duty to respond to a call if there is a fire. This is not to say that fire fighters can ignore fires if they wish to do so- there is duty in public law and evidently a social and moral obligation to so, particularly under fire officers individual employment contracts. However, a duty of care is only owed to an individual whereby the situation is aggravated/ made worse. Even then it depends on whether it is due to an operational (in regards to the way they do their job) or policy decision (resource allocation) as stated under the John Monroe case.
There has been no breach on behalf of the Fire service, as their engine broke down, consequently they were unable to put out the fire as a result, and thus did not make the situation worse.
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