Explain whether Talbot would be liable for the damages of 14-year-old boy. Rules: – "There is no duty care to a visitor who, after entering the premises, exceeds the limits of the permitted purpose, say by straying into parts of the building unconcerned with his visit; he then becomes a trespasser. – Prior to 1984, the occupier's duty to trespassers was to act with common sense and humanity. – The main provisions of the 1984 Act: The occupier owes a duty in the circumstances 1. He is aware of the danger or has reasonable grounds to believe that it exists.
He knows or should know that someone is in (or may come into) the vicinity of the danger 3. The risk is one against which he may reasonably be expected to offer that person some protection" (BPP Professional Education, 2004, pg. 130). Applications: Immediately after the spill, Talbot walked outside, pulled down the shutter of the workshop and went for a coffee. A 15-year-old girl and a 14-year-old boy who lived behind the garage often sneak into the workshop when Talbot was out and chased each other around. Talbot had previously threatened to charge them with trespass.
This boys and girls exceeded the limits of the permitted purpose which was warning by Talbot and also sneaked into the workshop without the permission of him. They were liability to trespass to land. This time, they sneaked in through the unlocked back door and began to chase each other, and still without concerning about the warning about charging them with trespass to land, so they were liable for trespass to land. The boy slipped and crashed into the shutters. He broke his jaw and suffered possible long-term brain damage.
There were damages for the trespasser- the boys, so as the case British Railway vs Herrington 1972 and Prior act 1984, Talbot had to act with trespasser with common sense and humanity by threatening them in the previous time. This time, he also owed duty because of slippery floors. Talbot was aware of the danger of the floor that could hurt people who stepped into this oil, he also knew that someone might come into the vicinity of danger, especially these boys and girls who used to sneak into the workshop to play and the back door was unlocked.
So, the risk was reasonably expected. Talbot breached the duty of care as it was reasonable in all the circumstances, this resulted the injury for 14-year-old boy. There was no other defense for Talbot. Conclusion: Talbot has liability to injury of 14-year-old boy in of Occupier's Liability Act 1984, but he can claim 15-year-old girl for trespass to land. Thus, Talbot should lock the door if he wants to go out or clean the oil carefully before going out. 3. Claim 3: a. The customer: Issues: Explain if the Uptons are likely to be liable. Rules:
– Vicarious liability: "one person commits a tort; another person may be liable jointly with the tortfeasor or even separately on his own if the tortfeasor has disappeared. – Most applicable field: relationship of employer and employee and the tort is committed in the course of his employment. Application: Mr. and Mrs. Uptons ran a plant hire business. One of their "technical experts" was Cynthia, who was a part time horticulture student in early stages of her course.. The Uptons controlled the way Cynthia to do her job, she integrated into the Uptons' business as partime employee and received salary from them.
So, there was relationship between Cynthia and the Uptons of employer and employee. Cynthia wrongly advised a customer that a plant would have no allergic side effects. She breached the care of duty to customer. The customer sat next to the plant for several months and suffered a variety of respiratory disorders. This was the damage for breaching the duty of care to customer of Cynthia. This damages was directly and reasonable foreseen. However the customer wanted to sue the Uptons, the employer. Cynthia gave advice in the course of her employment- in working hour; in scope of work was horticulture, in working area- in the office.
Conclusion The customer can sue the Uptons for the wrongly advice of Cynthia according to Vicarious liability in applicable of employment relationship that duty is transferred form Cynthia. In the next time, the Uptons should not hire with limited skill. b. Cynthia Issues: Discuss the liability of the Uptons in this situation Rules: Based on Health and Safety at work Act 1974: * Plant and systems of work are provided and maintained so as to be safe and without risks to health * He provides such information, instruction, training and supervision necessary to ensure that they are safe and without risks to health
Applications: Mr. and Mrs. Uptons were aware of the side effects of such a plant but they believed that their young staffs were healthy enough and would have no problem. According to these analysis above, Cynthia and the Uptons had employment relationship, so the Uptons had to provide and maintain the safe working environment to the employer. According to Health and safety at work Act 1974, "plant and systems of work are provided and maintained so as to be safe and without risks to health". However, they failed to do so in this case.
Therefore, they thought it was not necessary to as their staffs to wear masks when they worked with the plant. The employer had responsibilities in providing "such information, instruction, training and supervision necessary to ensure that they are safe and without risks to health". However, they thought it was safe and did not supply the protection for employee. Soon after the customer started the claim, Cynthia herself had suffered same symptoms. This was the damages that Cynthia had to suffer because of unsafe condition at work, and she did not receive an instruction as well as protection from employers.
Conclusion: Cynthia can sue the Uptons for breaching the duty of care to employee through Health and Safety Act 1974. In the next time, when knowing that the plant is not safe, the Uptons should provide masks; make sure that the employee is working in safety environment. 4. Claim 4: Issues: Does May have any legal remedy against George? Rules: – 4 steps to prove negligence: 1. The defendant owed a duty of care to the plaintiff 2. The defendant breaches this duty 3. The plaintiff suffered damage (injury) as a direct result of the defendant's breach 4. The defendant does not have a defense.
"Negligence mis-statement is when a special relationship the person who made the statement must have done so in some professional or expert capacity which made it likely that others would rely on what he said. " Application: George Cherry was a qualified accountant and investment advisor and had been practicing for 25 years. May Melon had recently won 180,000 in Lotto and seek investment advice from George. George had duty of care to all customers who came and took the advices from him, so he had duty of care to May. He recommended her to invest all of her money in a mining company Lemonade Ltd.
She was reluctant to invest in a mining company due to its high risks but George told her "I have fully investigated this Company and it is totally profitable. I have been in this business for many years and I am the best in my job. Follow my advice and you shall double your money in no time at all". He affirmed that he was the best adviser, and if May did not follow his advice, it would be waste though May was concerned about the high risks of this Company. May followed the advice and bought i?? 60,000 shares in Lemonade Ltd at i?? 3 a share (see the case Hedley Byrne Co Ltd vs Heller and Partners Ltd 1963).
May discovered that the Company had been in financial trouble over 12 months and this fact was very well-known in the financial market and was common knowledge to many investment advisors. It was reasonable foreseeable that the wrong statement in the advice would make May suffer loss. Thus George breached the duty of care to May through giving wrong advices. After only two months the share value dropped to 2 cents and the Company went into liquidation. This loss was the direct result from wrong advices of George, and May relied on the advice. Also there was no defense for George.
Conclusion: This is negligence mis-statement because May relies on expert's advice of George, and because of his negligence, she suffered loss, so May can claim George for loss investment in Lemonade Ltd. She also paid i?? 600 to George for his professional advice. There was a contract between May and George. May also is able to claim George for giving wrong advice, and she can claim for 600 payment for advice. But this is more profitable for her if she claim according to law of tort. She can take back all or some money from the loss in investment.