Tort law & relationshi

Firstly the duty of care needs to be established. Firstly there needs to be a connection between the DF and the claimant, as established in the neighbour test from donoghue and Stevenson. As Abdul invited his neighbours children to his house, this established the relationship between the claimant and the defendant. As they were invited to swim in the swimming pool, and they were children, he has a greater responsibility to take care of them as children have less spacial awareness of things that go on around them then adults, so they are more likely to have harm caused to them than an adult.

So they have been connected as neighbours in law, as Abdul has invited the children to swim in his swimming pool, as he has invited them he has created a duty of responsibility over the children as they are in his care. Also, as it is his swimming pool he has a duty to make sure that it is fit to be used by other people, and that there are no risks of sever injuries from the use of it. Following the three stage test from caparo v dickman, the first question that needs to be applied to this scenario is was the harm reasonably foreseeable?

As Abdul had just finished cleaning around the pool, and the surrounding paving was quite slippery, some harm could be foreseeable, as even if Tom had walked he still may have slipped due to the pool only just been cleaned. As they were children that he had invited to swim in his pool, they are more likely to run in to the pool as the would be more excited to use it than an adult, so are at more risk of slipping on the slippery wet floor as they are more likely going to run in to the pool than walking. However, Abdul did warn them to be careful and that the floor was slippery, so he did make sure that they knew before hand.

The second question of is there sufficient proximity has already been answered as they are neighbours and he invited the children round to his house so he has assumed responsibility over them whilst they use the pool. The third question that needs to be satisfied is it just fair and reasonable to impose a duty of care on the DF. As Abdul had just finished cleaning the pool, this means he has a greater responsibility to make sure that they are safe as there is a higher degree of risk injury due to the pool being slippery.

As it is his pool, he needs to take precations to ensure to the highest degree possible that it is safe to use. Also, he didn't finish drying the pool after cleaning it to make it safe to walk around. Also because the claimants are children, they need adult supervision when they are doing activities such as swimming, as they are more likely to drown and they are less likely to be advanced at swimming. Taking all of these factors in to account, it is just fair and reasonable to impose a duty of care on Abdul.

Now that the duty of care has been established, the breach of the duty of care needs to be established. With Abdul, he failed to finish cleaning the pool. He cleaned the pool, but let it wet, which meant it the risk of harm is greater than if he finished letting the pool dry off before the children from next door used the pool. As he asked them, knowing full well it wasn't fully dry yet, this is something a reasonable person wouldn't do, as they would wait until the pool side was completely dry before allowing children anywhere near it as children are more exictable about things than anybody else.

So this satisfies the p4rinciple from blyth v Birmingham waterworks. However, because he shouted to the children that it was wet, forewarning them about the risk of harm that could incur if they ran, this could work in his favour as he tried to do what a reasonable person would do in the circumstances which is to make sure that they knew before they got to the pool. Also, he could foresee some sort of harm occurring if he let the children in to the pool whilst the pavement is slippery, for even if someone walks along the pavement they could still slip if they aren't careful.

The risk involved isn't a small one, which was highlighted by Bolton v stone, as people generally walk along the pavement to get in to a pool. The children wouldn't be able to avoid walking or running along the pavement to get in to the pool. He did forewarn the children that the pavement was slippery before they got to the pool, but he only told them whilst they were running in. As they were running in, this could mean they were running in to his house or running in to the garden or running in to the pool.

However, as we don't know how far ahead he forewarned the children, we don't know how long they knew it was slippery before Tom was injured. However, he should of warned them that the pavement was slippery before they started running, no matter where they were running when he forewarned them, as by running it is harder to slow down to a safe speed to prevent oneself from a high probability of slipping. So even though he did take steps to reduced the size of the risk, he could have reduced it even further by inviting the children over after the pavement had dried, or prevented them from running in the first place.

The risk in the case I think is small, but the harm resulting from it is quite a big one considering tom hurting his leg. As I said before, he should have waited until the pavement was dry after cleaning the pool before inviting the children round to use it, or prevented them from running in to the pool in the first place. Also, the fact that he shouted to them that the floor was slippery suggests that they were probably not in the same room, so he is not keeping a close eye on them, which is what he has been entrusted to do by his neighbour when inviting them around.

Obviously with a swimming pool, if it is use it needs a life guard to make sure that no one drowns, and as the only responsible adult around is Abdul and the children have been entrusted in his care whilst they are swimming in his pool, it only seems sensible to assume that whilst the children are using the pool he will act as the life guard. The fact he isn't assuming his position of responsibility of always being present at the pool when they are outside, he is breaching that duty as he should be in the same room as them.

There are no acceptable reasons as to why he is taking the risk of letting children run on the pavement next to the swimming pool except from maintaining the pool and keeping it clean from bacteria, but it wouldn't make much difference to the hygenie of the pool if no one use if for 30 minutes whilst the pavement dries so people can walk along it safely, and the water within the pool will stay clean as no one has used it to contaminate it.

The things that Abdul would have to go to prevent toms broken leg are minute. These are letting the pavement dry slightly before letting the children use the pool, making the children walk not run in to the pool, letting the children know that the pavement is wet, and make sure he is always present in the same room/area as the children are, which can all be done with out much hassle on Abduls part as they are simple, and would only take about 30 minutes extra in time.

But for the pavement being wet, tom wouldn't have hurt his leg. Also, but for the children running, and but for Abdul inviting them over when he knew the pavement was still wet, Tom wouldn't have fallen over and hurt his leg. Abdul is the legal cause of Tom injury, as his actions were the only cause of the broken leg, and if it wasn't for his actions Tom would have been fine, as there was no intervening acts to break the chain of causation. The test for remoteness of damage is the last thing to be satisfied.

The way in which the injury occurred was foreseeable, so even if the extent of the injuries wasn't foreseeable, they would still be liabile. The fact that some sort of injury was foreseeable as the pavement was wet next to the pool, and the children were going to use the pool, and the fact that they were running towards the pool means that some sort of injury is foreseeable, even if the extent of it isn't. So Abdul would have been negligent towards Tom.