Basic Law (Tort)
Building law and contract admin Assignment no 2 Tort Volenti non fit injuria Latin / voluntary assumption of risk. A defence in tort that means where a person engages in an event accepting and aware of the risks inherent in that event, then they can not later complain of, or seek compensation for an injury suffered during the event. This is used most often to defend against tort actions as a result of a sports injury Smith v Charles baker & son 1891 Dulieu v White and son 1901 Herd v Weardale Steel and Coal 1914 Doctrine From the Latin word doctrina meaning “teachings.
Something taught as a the principle or creed especially in religion. A rule or principle of law established through its repeated use. Doctrine of alternative danger The plaintiff is supposed to be careful in spite of the defendant’s negligence, there may be certain circumstances when the plaintiff is justified in taking some risk where some dangerous situation has been created by the defendant. The plaintiff might become perplexed or nervous by the dangerous situation and to save his person and property, or sometimes to save a third party from such danger, he may take an alternative risk.The law, therefore, permits the plaintiff to encounter an alternative danger to save himself from the danger created by the defendant. If the course adopted by him results in some harm to himself, his action against the defendant will not fail. The judgment of the plaintiff should not, however, be rash. The plaintiff is not only justified in taking risk for himself, he may take risks for others as well. Jones v Boyce 1816 Thin Skull Rule An additional exposure in tort liability towards persons who are particularly vulnerable or more fragile than the norm, who may have inherent weaknesses or a pre-existing vulnerability or condition.The tort-feasor takes his victim as he finds them he compensates for all damages he caused, even if damages are elevated compared to a norm because the plaintiff was thin skulled. The principle appears to have emanated from a 1901 English case, Dulieu v White and Sons, where it was stated “If a man is negligently run over or otherwise negligently injured in his body, it is no answer to the sufferer’s claim for damage that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart. For example, if a person who has physical or psychological infirmities which extend, beyond a the norm, his/her recovery from injuries resulting from another’s tort, the defendant’s damages are not discounted accordingly but, instead, are adjusted upwards to fit the “thin skulled” victim Dulieu v White and Sons 1901 Contributory Negligence The negligence of a person which, while not being the primary cause of a tort, nevertheless combined with the act or omission of the primary defendant to cause the tort, and without which the tort would not have occurred.Contributory negligence applies solely to the conduct of the claimant. It means that there has been some act or omission on the claimant’s part which has materially contributed to the damage caused and is of such a nature that it may properly be described as negligence. Froom v Butcher 1976 Nance v BC Electric Railway Co. 1951 Stinton v Stinton 1993 Res Ipsa Loquitur Latin / the thing speaks for itself Generally, in tort, the mere fact of an accident is not proof of negligence. But in some cases, negligence is presumed on the defendant since the object causing injury was in or under his or her control.This is the res ipsa loquitur doctrine. Res ipsa loquitur is a rebuttable presumption rebutted by showing that the event was an inevitable accident and had nothing to do with the defendant’s responsibility of control or supervision. Examples of res ipsa loquitur, not all of which can be assumed to apply today which illustrate the doctrine. Getting hit by a rock which flies off a passing dump truck. A ship in motion collides with an anchored ship. Damages occasioned by the collision of two trains of a same railway. Devine v Colville’s ltd 1969Royal bank of Scotland v Etridge 2001 Donohue v Stevenson 1931 Question 2 i. Which parties may be liable for the injury and losses suffered Introduction To deal with the liabilities of this case I feel it would be poignant to break the case down and investigate each individual parties involvement and therefore liability. List of parties possibly involved West Kent collage Buildright Ltd Kentcrete Ltd Driver 1 ( using the designated entrance) Driver 2 (using the staff and student entrance) Driver 3 (driver of the car)Student 1 (the driver of the car) Student 2 (student that was hit by the car) Student 3 (who was sick due to the accident) Air ambulance service Hospital West Kent collage West Kent collage had appointed a competent contractor to legally carry out the construction of the new building and would not seam to be directly involved in the accident, Although they do have a reasonability of care to there students. The students involved were in areas that were designated for there use, and therefore not acting illegally or with negligence.The fact that student 1 was in the driver seat in the car would imply that the car was, just stationary, and not parked illegally. Due to the collage being “ to far away” or “not directly involved” the collage in my opinion would not be liable in any way Buildright Ltd As with the West Kent collages involvement build right Ltd would be considered to have a duty of care for the overall running of the construction process and all parties therefore involved, however again it can be reasonably expected that Kentcrete the local supplier would carry out there task of delivering the concrete in a legal and competent manor.Therefore no liability for the accident would be upheld. Kentcrete Ltd Kentcrete would be considered to have a direct or primary reasonability for the actions of its employees under the law of vicarious liability. Employers are vicariously liable for the torts of their employees that are committed during the course of employment. they could therefore be held responsible for driver 1 and driver 2’s actions. Driver 1 using the correct entrance, and having no problems can be exonerated from any responsibility.Driver 2’s action of using the wrong entrance and then crashing into the car would therefore make kentcrete liable under the rules of vicarious liability. Driver no 1 (using the designated entrance) Although the driver may have been “keen to deliver”, he/she used the correct entrance, had no accident, and would therefore not be held reasonable in any way. Driver no 2 ( using the student and staff entrance) This driver would be considered to have committed a tort or “wrong” by intentionally using the wrong entrance, or at least being negligent by not using the designated one.He/ she would be considered to be liable of negligence as it would be reasonable to expect the driver to use the correct entrance. He / She could also be held reasonable for the injuries to student no 2 as being a direct cause by hitting the car. Student no 1 (the driver of the car) Student no 1 could not be held responsible for the injuries to student no 2 He/She had not committed a tort, and was not a employee of the companies involved, it would not be reasonable to expect student no1 to be able to foresee the actions of Driver no 2.Therefore no liability would be upheld for the injuries caused to student no 2. He / She would not be guilty of trespass to the person as there was no attempt or offer to apply unlawful force nor was there any intention to bring a an object, the car, into contact with a person. Student no 2 / Student no 3 Both theses students would not be held responsible as no tort, negligence, or trespass to the person has been committed and neither would be liable. Air ambulance services and the hospitalNeither could be held responsible for the events that took place before they arrived, however there may be a case for negligence due to the delay that took place in treating the arrival of Student no 2. The 20 minute delay due to an admissive mistake may have been considered a breech in duty of care and therefore negligent. We would then need to approach the subject of whether the death of student no 2 was a direct result of the delay. Ii . What defences may be available to those potentially liable to avoid or reduce liabilityKentcrete Ltd could argue that the main contractor Buildright Ltd hade not made them aware of the conditions of site and that there was a specific entrance that was to be used, If this were the case it may be that build right could be held partially reasonable as The negligence of the claimant which, while not being the primary cause of a tort, nevertheless combined with the act or omission of the defendant to cause the tort, and without which the tort would not have occurred IE if build right had told kentcrete that there was a specific entrance then the driver would have used it, therefore they contributed to the tort and could be held responsible under contributory negligence.Driver no 2 could argue the same, He / She could also argue that there were no signs to the front of the building and the entrance was unmarked, Was student no 1 under the influence of drugs or alcohol, Was it a dark day and did the stationary car have lights on, was the stationary car illegally parked at the time and causing a public nuisance or obstruction to the highway, these may not all be defences but would be considered at least mitigating circumstances. The hospital could argue that the time delay was reasonable under the circumstances, were they particularly busy. Did the time delay contribute to the deterioration of student no 2’s health or was it inevitable. Iii / iv which parties may entitled to remedies for injury and losses suffered ? Student no 2, ho is now unfortunately dead, would be unable to claim at all, but his parents, family or legal guardian would be able to claim or sue for damages, who they sued would be dependant on the findings of the hospital inquiry or the report from the corinor as to the cause of death.It may also be true that the lorry driver could be sued for manslaughter through the criminal courts. Student no 3 the driver of the stationary car could sue and claim damages for the whiplash they have suffered, loss of earnings due to the whiplash, these could be claimed through physical injury and economic loss respectively, sighting Donahue v Stevenson 1932 and Carroll v Fearon 1988. The repair to the car would be recoverable through the motor insurance of the lorry. Question 3 What is and is not recoverable through the courts ? The client may be able to recover damages from the main contractor, for all and any damage caused as a direct result of the fire.Sighting Mcardale v Admac roofing 1967 when the main contractor was found to be responsible when a roof was constructed incorrectly. Or sighting Scottish Special Housing Association v Wimpey Construction UK Ltd 1986 The main contractor in turn may be able to recover there loss from the sub contractor for negligence if the air conditioning installed was found to be at fault. Sighting Tyco fire & integrated solutions v Rolls Royce motor cars Ltd ( 2007) The neighbour who tried to extinguish the fire would not be able to recover damages for smoke inhalation or for losses through earnings, It may be the case that he could be sued himself for trespass, sighting Manchester airport v Dutton (1999) S A Mercer HNC year 1