Negligence Lawsuit Scenarios

This assignment analyzes three separate scenarios involving potential negligence claims against a local council. It examines the legal duties owed by the council and its employees, focusing on their responsibilities to maintain public safety and provide essential services. The analysis delves into the concepts of breach of duty, causation, and damages, evaluating whether each scenario meets the criteria for a successful negligence claim. Finally, it identifies relevant case law and legal principles to support the arguments presented.

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Civil Engineering & Surveying
Question based assignment
08-Nov-17
(Student Details: )

QUESTIONS
Question 1
Issue
Whether a contract was formed between John and Chris, or not? If a contract was formed,
whether the same was breached and the possible remedies which can be cited? Whether a
contract was formed between John and Peter, or not? If a contract was formed, whether the
same was breached and the possible remedies which can be cited?
Law
A contract is a promise made to create legally binding relations where one party promises to do
or not do a particular task, for which the other party agrees to pay the value of consideration. A
contract can be formed in an oral manner, by exchanging the terms in spoken manner, and can
also be formed in a written manner, by writing the terms of the contract on a document and
getting the same signed (Roach, 2016). In order to create a contract, there is a need for the
contract to have some requirements like offer, its acceptance, consideration, capacity, clarity
and intention. The presence of all these elements is essential to create a contract (Mau, 2010).
Once a contract has been formed, it becomes crucial to uphold the terms of the contract or else
the contract would be discharged through termination. And in such cases, the innocent party
can apply for different remedies. These remedies can take the form of damages, specific
performance, injunction, etc (Mulcahy, 2008). In the case of Addis v Gramophone [1909] AC
488, the court stated that the plaintiff had to be awarded damages so as to put him in a place
where he would have been in case the contract had been properly performed, instead of
damages being awarded as a punishment. Hence, the damages are awarded for compensating
the innocent party instead of a punishment. The damages can be awarded for the
dissatisfaction or the disappointment caused to the plaintiff in case the contract had been
entered for a specified reason, which was of enjoining or being entertained and a leading
example of this is Jarvis v Swan Tours [1972] 3 WLR 954 case (Poole, 2016).
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In cases of breach of contract, the plaintiff can apply for damages, and another option which
can be availed by them is specific performance, particularly when the damages fail to prove as
an adequate compensation for the breach of contract. Specific performance is an order of the
court where the court orders a person to do a particular task and is used usually in the cases
surrounding the sale of land (Miller and Cross, 2015). When it comes to the personal services
contract, the same is not awarded as a person cannot be forced to do a particular task in their
personal capacity. Page One Records v Britton [1968] 1 WLR 157 provides clarity in this matter.
In this case the court did not grant the injunction order which was sought out as the same was
deemed to specific performance order. This was because the impact of this order would have
been to force the person to work for the plaintiff or not work at all, which was deemed as an
unfair proposition by the court (E-Law Resources, 2017).
Where both damages and specific performance fail to prove as adequate remedies, the
aggrieved party can apply for an injunction order through which an individual can be stopped
from doing a particular act. Lumley v Wagner (1852) 42 ER 687 proves to be a good example for
this. In this case, the court allowed the injunction order which resulted in the defendant being
stopped from performing for a competitor as she had promised to perform for the plaintiff
(Davies, 2015).
A contract can also be discharged through frustration. When it such happens that the
commercial purpose of the contract is deprived, where none of the party is at fault, the
contract is deemed to be frustrated. And in such cases, the parties cannot sue each other for a
breach of contract. When the terms covered under the contract are fulfilled, the contract is
deemed to be discharged through performance. In order to discharge the contract through
performance, it is crucial that the promise made under the contract is fulfilled by all the
contracting parties. When a contract covers a condition that it would be completed upon
payment, the completion of the contract would require payment to be made (Andrews, 2015).
In Cutter v Powell [1795] EWHC KB J13, the plaintiff’s husband had entered in a contract
whereby he had to perform certain duties at a ship for a period of eight weeks and as per the
contract, he was to be paid when the voyage was completed, and that too after ten days.
However, just six weeks into the voyage, he died and this led to the plaintiff making a case
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before the court for getting the pay of six weeks for which her husband performed the
promised tasks. The court denied the claim of the plaintiff on the grounds that it was a
contractual condition that the payment would be made only after the ship reached its
destination. As the same did not happen, the claim of the plaintiff was denied by the court
(Rush and Ottley, 2006).
Application
The facts given in the case study show that a contract had indeed been created in between
Chris and John as a promise had been made where Chris had promised to do the redecoration
work and John had promised to pay the consideration of £60,000 for this work to Chris. After
Chris finished up his part of the promise, John raised an issue that the redecoration had not
been done as per the standards. The case now revolves around the manner in which this
contract has to be discharged.
In order for the contract to be discharged through performance, there is a need for both the
parties to fulfil their contractual obligation. Here, John can make a claim that this contract is still
pending and is not completed owing to the work not been completed as per the standards.
Another claim which can be raised by him is that he still has to make the payment which means
that the contractual promise is not fulfilled, thus not completed. He can highlight that only the
advance payment has been made and the remaining payment would be paid on completion of
work as per the standards. Cutter v Powell further strengthens this stand as the contract has to
be completed for discharging it through performance. So, an option available before John is to
state that the contract is pending completion owing to the work not being as per the standards.
Though, these claims have high chances of being a flop. This is because the contact had been
completed and the work of Chris had been completed. The only thing which was pending in this
contract was the payment of Chris by John. By not paying the amount of consideration, John
cannot claim that the contract had not been completed as it would actually be a breach of
contract on part of John for not fulfilling his contractual obligations. It was a contractual
obligation on part of John to pay the promised sum. For the breach of contract by John, Chris
has the option of making a claim of breach of contract and can apply for remedy of damages.
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This would allow the court to pass an order where Chris would be compensated for his loss.
John can, upon this claim of Chris, make a claim to the court that he was dissatisfied from the
work of Chris on the basis of Jarvis v Swan Tours. Hence, both the parties can make a case of
breach of contract but there are higher chances of claims of Chris being upheld for the direct
breach of contract as his claim is easily quantifiable whereas John’s claim does not have proper
backing as per the given facts.
Coming to the case of John and Peter, a contract had been formed between them where Peter
had to work for six months for John and the work had to start from 01 June. This contract had a
term where Peter was restricted from working for any other company when he was employed
by John. The decision of joining the rival company would result in the breach of contract as the
contract covered this term. And for this breach of contract, John can claim remedies and apply
for an injunction order, which would help John in restricting Peter from working for another
company on the basis of the case of Lumley v Wagner. The reason for this is that a specific
performance cannot be given in this case based on Page One Records v Britton as a person
cannot be forced to work for a particular party.
Conclusion
On the basis of this discussion, it can be concluded that there had been a breach of contract by
John by not paying the consideration amount to Chris and for this, damages can be applied by
him. When it comes to the case of Peter and John, a breach of contract can be claimed by John
where he can apply for an injunction order for stopping Peter from going to the rival company.
Question 2
Issue
Whether a case of negligence can be made by Timothy against McKeown, or not? Whether a
case of negligence can be made by Samson against Council, or not? Whether a case of
negligence can be made by William against Council, or not?
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QUESTIONS
Law
The best manner of defining negligence is the contravention of duty of care which was owed by
one person to another person as the actions undertaken by the first party had the capacity of
injuring the other party (Trindade, Cane and Lunney, 2007). When a case of negligence is made,
the aggrieved party gets awarded damages as remedies for their injury, personal loss, shock,
economic loss and the harm caused (Best, Barnes and Kahn-Fogel, 2014). However, for a claim
to be successful there is need for the plaintiff to show before the court that a duty of care had
been owed to them, which was contravened, which resulted in injury and where there were
reasonable chances of such injury occurring owing to the proximity between the parties
(Greene, 2013).
In order to show that a duty of care was owed towards the plaintiff, reliance needs to be made
on the leading English case of Donoghue v Stevenson [1932] UKHL 100. This case is also known
as snail in the bottle case as a dead snail had been found in the bottle of the consumer. In this
case, the court held that a manufacturer was deemed to owe a duty of care towards the
consumers as the manufactured product is consumed by the consumer; thus, having the direct
capacity of harming or injuring the consumer. The court stated that a contaminated bottle was
reasonable foreseeable to cause injury and thus the manufacturer had the duty of making safe
bottles. As Stevenson failed to do so, the court held that he had failed in the fulfilling the duty
of care which he owed to the consumer, and had to give Donoghue the sought out
compensation (Kolah, 2013). This case is a leading example of duty of care, direct causation,
proximity and foreseeability, which are required to be shown for making a case of negligence
(Statsky, 2011).
The next requirement in making a claim of negligence relates to the contravention or violation
of the owed duty of care. This can be established through the case of Paris v Stepney Borough
Council [1951] AC 367 where the plaintiff had been hired by the defendant for carrying on his
work. The defendant knew that the plaintiff was blind in one eye and they still did not provide
him with the requisite safety gear. While working on the machines, one rusty bolt got lose and
hit Paris in his good eye, resulting in him being blinded completely. The court upheld the claim
of the plaintiff and held that the duty of care had been breached by the defendant as the
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Council failed in their duties as an employer, which resulted in the employee being injured
(Martin and Lancer, 2013). A key principle in context of employer-employee relationship is the
vicarious liability. As per this doctrine, which is born from agency law, the employer is liable for
the acts done by the employee, provided that such acts are done within the scope of
employment (Lunney and Oliphant, 2013).
As has been stated earlier, upon a case of negligence being made, the aggrieved party can apply
for damages. However, there are certain cases in which the awarded damages can be reduced
by a certain sum (Turner, 2013). One of such cases is contributory negligence in which it is
shown that the plaintiff made contribution towards the injury which they got and so, they had
to be held liable for failing the duty of care owed towards them (Kennedy, 2009).
When it comes to young people, the degree of duty of care is enhanced. And for this, reliance
needs to be made to the case of Roads and Traffic Authority of NSW v Dederer [2007] HCA 42.
This case saw an individual, who was just 14, jumping from the bridge which resulted in him
being injured gravely. The authority had put signs near the bridge where it was shown that the
people should refrain from jumping in the river. Though, the plaintiff ignored this and climbed
on the plaintiff due to absence of horizontal bars and jumped. As a result, he was injured due to
the uneven surfacing of river. The case was made and the court held both parties at fault.
Accordingly, the defendant was held liable under the tort of negligence as care had to be taken
when the children were involved. Simultaneously, the plaintiff was held to have contributed to
his injuries and sustained a loss of 25% of the remedies awarded to him (High Court of
Australia, 2007).
Application
The given case study shows that McKeown owed the building in which the boiler room and pool
was. So, a duty of care was owed by them towards every person entering the premises owing to
the concept of occupier’s liability. The council also has the same duty but for the individuals
visiting the pool as the same was opened by them.
In case of McKeown and Timothy, it was a duty of McKeown to ensure no person got inside the
boiler room. They had to ensure that the room was properly locked instead of merely planting
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QUESTIONS
the warning signs. Based on Roads and Traffic Authority of NSW v Dederer, McKeown would be
deemed as negligent and as a result of this, he would have to compensate Timothy for the
physical injury caused to him. The case of contributory negligence of Timothy would however
not be successful. This is because Timothy was just 11 and he cannot be assumed to be able to
apprehend properly if a particular thing was dangerous for him. This further enhanced the duty
of care of McKeown. This duty was also breached by McKeown when they failed to cover the
exposed wires in the boiler room, which make it reasonable foreseeable to cause an injury to a
person, based on Paris v Stepney Borough Council. On these bases, a claim of negligence against
McKeown would be successful by Timothy.
When it comes to the case between Council and Samson, there is a need to establish if a duty of
care was owed by the Council towards Samson. If the case of Donoghue v Stevenson is used as
assistance, there is a need to show that Council and Samson had proximity between them. This
is true as the pool was opened by the Council and Samson visited this pool. Their relationship
thus had the proximity where acts of Council could affect Samson. Also, it was foreseeable by
the Council that people would jump or dive in the pool in certain manner, thus they restricted
such actions. Merely installing signs as warning are not adequate measure of discharging the
owed duty of care based on Roads and Traffic Authority of NSW v Dederer. Hence, the Council
failed in their duties towards Samson. Also, the Council had hired life guards to avoid any such
occurrences. But the life guards failed in fulfilling their obligations. As a result of this, Samson
could carry on the restricted activities and became unconscious. The concept of vicarious
liability would make the Council liable for the misdeeds of the life guards. So, the negligence of
the life guard would be negligence of Council. Again, the age of Samson would disallow a claim
of contributory negligence. And so, due to the negligence of the Council in keeping Samson
safe, a claim can be made by Samson for the mental distress which had been caused to him
from this incident.
Coming to the last case of Council and Williams, Williams was an employee of the Council and
as per the case of Paris v Stepney Borough Council, they were required to provide safe working
environment to the employees. It was their duty to keep the pool safe in order to avoid any
incidents from occurring. And this required the installation of slip proof tiles by the Council.
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QUESTIONS
However, the Council failed to do so, as a result of which, William slipped and sustained
physical injuries. This allows William to make a case against his employer, i.e., the Council for
breaching the owed duty of care under negligence and claim damages for the injuries sustained
by him.
Conclusion
From the discussion which has been carried on the previous segment, it becomes clear that
Timothy has the option of making a case of negligence against McKeown as they failed to fulfil
their duty of care owed towards him. A case of contributory negligence however would not be
upheld against Timothy owing to his tender age. A case of negligence can also be made by
Samson against the Council for the failure of Council and its employees in discharging the owed
duty of are. And lastly, in the case of William, he too can make a case against the Council under
negligence. Hence, all three parties can claim damages under negligence in this case.
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References
Andrews, N. (2015) Contract Law. 2nd ed. UK: Cambridge University Press
Best, A., Barnes, D.W., and Kahn-Fogel, N. (2014) Basic Tort Law: Cases Statutes and Problems.
4th ed. Frederick, MD: Wolters Kluwer Law & Business.
Davies, P.S. (2015) Accessory Liability. Oxford: Hart Publishing Ltd.
E-Law Resources. (2017) Page One Records v Britton [1968] 1 WLR 157. [Online] E-Law
Resources. Available from: http://e-lawresources.co.uk/cases/Page-One-Records-v-Britton.php
[Accessed on: 08/11/17]
Greene, B. (2013) Course Notes: Tort Law. Oxon: Routledge.
High Court of Australia. (2007). Roads and Traffic Authority of NSW v Dederer [2007] HCA 42.
[Online] High Court of Australia. Available from:
http://eresources.hcourt.gov.au/downloadPdf/2007/HCA/42 [Accessed on: 08/11/17]
Kennedy, R. (2009) Duty of Care in the Human Services: Mishaps, Misdeeds ad the Law. Victoria:
Cambridge University Press.
Kolah, A. (2013) Essential Law for Marketers. 2nd ed. United States: Kogan Page Limited.
Lunney, M., and Oliphant, K. (2013) Tort Law: Text and Materials. 5th ed. Oxford: Oxford
University Press.
Martin, J., and Lancer, D. (2013) AQA Law for AS Fifth Edition. 5th ed. Oxon: Hachette UK.
Mau, S.D. (2010) Contract Law in Hong Kong: An Introductory Guide. Hong Kong: Hong Kong
University Press.
Miller, R.L. and Cross, F.B. (2015) The Legal Environment Today. 8th ed. Stanford, CT: Cengage
Learning.
Mulcahy, L. (2008) Contract Law in Perspective. 5th ed. Oxon: Routledge.
Poole, J. (2016) Textbook on Contract Law. 13th ed. Oxford: Oxford University Press.
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Roach, L. (2016) Card and James' Business Law. 4th ed. Oxford: Oxford University Press.
Rush, J., and Ottley, M. (2006) Business Law. London: Thomson Learning.
Statsky, W.P. (2011) Essentials of Torts. 3rd ed. New York: Cengage Learning.
Trindade, F., Cane, P., and Lunney, M. (2007) The law of torts in Australia. 4th ed. South
Melbourne: Oxford University Press.
Turner, C. (2013) Unlocking Torts. 3rd ed. Oxon: Routledge.
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