Law Of Negligence

Title: Longton University is a campus based university. The site is held on a leasehold from Dultown Borough Council who granted the university a 99 year lease in 1953. Responsibility for the repair, maintenance and cleaning of the campus is entrusted to the local authority while policy matters and day to day administration of the institution are in the hands of the university officials.

There are a number of retail premises on the university site. Two weeks ago Kevin, a medical student, was buying groceries in the university supermarket when he slipped on milk that had spilt onto the shop floor. As a consequence Kevin broke his wrist and damaged his spectacles. On the same day, Ian, a self employed builder, who was on his way to the Biology Department to give a quotation for work to be carried out to the fabric of a building was injured when he knelt down in the supermarket to pick up a coin he had dropped on the floor. Ian put his knee onto a piece of glass which caused injury and required treatment at the local hospital. The supermarket is often short staffed and depends on casual student labour. Frequently, spillages and breakages are not dealt with immediately. Some of the buildings which were erected on the university site in the 1950s have started to develop defects. A process of refurbishment of most buildings is being undertaken. The local authority has decided that "Tiewell Construction" should be responsible for all scaffolding work. Last week Jeremy, a post-graduate student, was passing the Biology building when he slipped and fell against the scaffolding surrounding the building. This resulted in scaffolding falling onto him which caused him serious injury.

He failed to notice the piece of cardboard which was placed by the works which says on it "Keep Off". Mandy is a postgraduate student at the university. In order to supplement her income she works as a waitress at the motorway service station situated nearby. Although the route between Mandy's flat and the service station is a short walk along the main road she has recently found a short cut to work by using a private right of way belonging to the university. To dissuade people from using this road, which is uneven and unlit, warning signs have been placed at regular intervals along the route while signs have been put up across the campus forbidding its use by students. Last week, while returning from work, Mandy fell while rushing to reach a lecture on time and broke her leg. She also damaged beyond repair her expensive wrist watch. The degree ceremony for graduating students is held in September at Longton University. After the ceremony this year Dave and a group of friends, who had graduated, decided to have a party and spend the rest of the day consuming alcohol.

The gathering continued through the evening and just after midnight the group decided to go for a swim in Black Lake. This is a deep and murky lake situated in the university grounds. Warning signs are placed around the perimeter of the lake while access to the water has been fenced off as much as possible. People do sometimes swim in the lake, particularly in the summer, and fishermen are seen by the lake regularly. Supervision of the lake is left to the university security staff who are employed by the local authority. Dave and his friends obtained access to the lake and started to swim, racing each other to the other side. Sylvia, one of Dave's friends, dived into the lake, struck her head and drowned.

Discuss potential liability for the above incidents.

The scenario under discussion concerns, inter alia, the family of law known as tort and in particular the law of negligence. In order to establish an action in negligence it is necessary to meet five essential conditions on the balance of probability. First it is essential to establish that the claimant is owed a legally recognised duty of care by the defendant. Second it is necessary to establish a breach of that specified duty. Third it must be shown that damage has been suffered. Fourth it must be demonstrated that the damage suffered was sustained as a direct, causal consequence of the identified breach, and finally it must be established that the damage stipulated was reasonably foreseeable in all the circumstances of the case - ie. not excluded on grounds of being too remote.

Each of the foregoing conditions are fundamental elements of a case. All the above points must be satisfied before a claimant can be advised that he or she has a good case for compensation.

For the sake of clarity and brevity each of the parties will be dealt with separately and in turn.

Advice re Kevin

Kevin was buying groceries in the university supermarket when he slipped on milk that had spilt onto the shop floor. As a consequence he broke his wrist and damaged his spectacles. It is submitted that Kevin is entitled to sue the local authority for negligence, which has responsibility for cleaning on the university site, and also the university authority itself, which, presumably, is responsible for staffing and the day to day administration of the supermarket. Indeed, given that the spillage took place in the supermarket and not on general university grounds it may be that the university authority constitutes the best target for litigation. We need to know more information about exactly who is responsible for cleaning in the specific context of the university supermarket.

It is necessary to apply the facts to the five-point framework discussed above in order to deliver reliable advice to Kevin.

Lord Atkins defined the range of the duty of care in negligence in Donoghue v Stephenson. He stated:

"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question."

Using this so-called neighbour principle on the facts of the case, it can be concluded that Kevin would be deemed a neighbour of the university authority and possibly also the local authority in the eyes of the law and therefore that Kevin was owed a duty of care during his visit to the supermarket. It is easy to argue that customers of the supermarket would be closely and directly affected by the way in which the premises are cleaned and maintained.

It is now necessary to establish breach of the duty of care owed to Kevin. In Blyth v Birmingham Waterworks it was stated that:

Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. The defendants might have been liable for negligence, if, unintentionally, they omitted to do that which a reasonable person would have done, or did that which a person taking reasonable precautions would not have done.

A calculus of risk analysis can taken employed regarding the possibility of breach of duty in Kevin's case. This approach weighs the risk or harm (Bolton v Stone) and probable severity of harm (Paris v Stepney Borough Council) that may be suffered against the cost of precautions (Latimer v AEC) and any other factors that might operate to excuse the risk taken (Watt v Hertfordshire County Council). In Kevin's case there is a high probability of risk where a slippery substance is spilled in an area used by the public, especially, it is argued, a supermarket, where the attention of the public is deliberately drawn away from the floor and to the shelves. The severity of harm likely to have been suffered if the risk manifests itself is significant, and serious injury can be sustained in such situations. Balanced against that, the costs of taking precautions would have been to instruct member of staff to maintain surveillance of the floors, ie. minimal, or at worst to employ a member of staff dedicated to perform that function (possibly necessary in any event). In so far as the facts take us there is no other socially objective justification or excuse for the failure to clean the floor and therefore subject to further information it seems that the scales definitely tip towards a finding of liability.

Kevin can thus be advised that he was owed a duty of care and that there was a breach of duty in the circumstances as a consequence of the failure to clean the floor or at least sign the hazard.

The damage suffered by Kevin is specified as being a broken wrist and damage to spectacles. This damage is of a kind recoverable under a claim in negligence.

It is relatively straightforward to establish causation in Kevin's case. The causal chain from breach to damage is apparently unbroken. Subject to further particulars on the incident it seems that the acquiescence of the supermarket in the face of a dangerous floor was the direct cause of the accident suffered by Kevin. Barnett v Chelsea and Kensington Hospital Management Committee sets down useful guidance on the issue of causation, and it is submitted that Kevin will be able to establish such in his claim.

It is submitted that remoteness of damage should not prove an impediment to Kevin's claim either. This rule, illustrated in the celebrated The Wagon Mound No.1 (1967), confirms that only damage which is a reasonably foreseeable consequence of a breach will be recoverable at law. Kevin's accident left him with a broken wrist and damaged spectacles. It is advised that these are both normal, foreseeable and predictable consequences of negligence which causes an accident of this kind.

Given that we have satisfied all five elements of Kevin's claim in negligence we can advise him that he has a claim against either the university authority or the hospital authority (subject to information as to which had responsibility for cleaning the floor) and that he may be able to claim against both parties (i.e. if the local authority is responsible the university authorities may also be deemed liable for management failures to mitigate the risk). He should therefore be successful in recovering damages to compensate him for the accident.

Advice re Ian

There is probably no reason why Ian should not be in supermarket. Most areas within most universities are open to public access and in any event Ian has been invited onto the premises to offer a quotation for work. Precisely the same analysis applies to Ian as applies to Kevin. It is suggested that he makes a claim in negligence and that he investigates whether to sue the local authority or the university authority or indeed both. Leaving broken glass on the floor leaves the floor just as dangerous as leaving spilt milk on the floor and arguably there is an even higher risk of injury in the case of glass.

The same five elements of negligence apply to Ian's claim. The authorities cited above will not be cited again here for the sake of brevity. However it is clear that Ian is owed a duty of care under Donoghue and that there has been a breach of duty (in acquiescing in the face of a floor in a dangerous condition) in the terms specified in Blyth. Injury requiring hospital treatment has been suffered and there is a clear causal link between the breach of duty and the damage sustained. In terms of remoteness of damage it is submitted that it is foreseeable that an injury requiring hospital treatment could be caused by a public floor contaminated by broken glass.

Consequently Ian can be advised that he also has a meritorious claim in negligence, and that he should be able to claim against either the university authority or the hospital authority (subject to information as to which had responsibility for cleaning the floor) and that he may be able to claim against both parties (i.e. if the local authority is responsible the university authorities may also be deemed liable for management failures to mitigate the risk).

Advice re Jeremy

Jeremy slipped and fell against the scaffolding surrounding the university building. This resulted in scaffolding falling onto him which caused him serious injury. He failed to notice the piece of cardboard which was placed by the works which says on it "Keep Off", but this seems irrelevant given that he slipped and fell towards the scaffolding, he did not deliberately approach the scaffolding. It is submitted that the scaffolding should have left in a state that it was robust enough to withstand the relatively minor impact of a falling pedestrian.

The Occupier's Liability Acts 1957 and 1984 are relevant as to the question of determining liability between the local authority, Tiewell Construction and possibly even the hospital authority.

The term occupier refers not so much to strict occupancy as who has control over the premises. This possibly includes Tiewell Construction given their stated responsibility for the scaffolding works and either the local authority or the university authority on the facts (further information is requested on this point). It should be noted that the basis of occupier's liability is occupational control: as Wheat v Lacon & Co Ltd illustrates, this means control associated with and arising from presence in and use of, or activity on a premises. Therefore whether Tiewell Construction can be treated as an occupier under the Act, is a question subject to the extent of the scaffolding work and the degree of control the company exercising over the work and premises. Such occupational control might be deemed to be shared between two parties such as the local authority or the university authority and Tiewell Construction and this is likely to be subject to the level of control exercised over the premises by Tiewell. In the case Page v Read the point was made that a tradesman with a minor or superficial job probably would not be considered an occupier, but a contractor undertaking an extensive building contract might well find the status of occupier imposed on them.

By section 2(4)(b) of OLA 1957, where injury is caused to a visitor by an independent contractor employed by the occupier due to the faulty execution of work of construction, maintenance or repair (for further: Ferguson v Welsh), the occupier may not be considered liable if on the facts he acted reasonably in entrusting the work to the contractor and acted to ensure the contractor's diligence. This reverses the jurisprudence established in Thompson v Cremin, where an occupier was made responsible for the negligent actions of a contractor.

Jeremy can therefore sue the local authority or university authority (subject to further information) and join Tiewell Construction to the action. This avoids the risk of Jeremy putting all his eggs in one basket and leaves the ultimate decision to the judge. Either way Jeremy will secure an action.

Applying the five point negligence framework to Jeremy's case, it is submitted that a duty of care was owed to Jeremy and that (applying a calculus of risk analysis as described above) the duty was broken by the negligent and dangerous state in which the scaffolding was left. Damage was suffered by Jeremy in the form of 'serious injury' and this arguably both caused by and a foreseeable consequence of the breach as identified above. (Please see the case authority and analysis noted above re Kevin's claim.) It is likely therefore that Jeremy has a case for compensation and it is deemed unlikely that a scrap of cardboard with a warning scribbled on it would serve as a defence against liability or to frustrate Jeremy's claim in any material way.

Advice re Mandy

Mandy has been injured after rushing along a dangerous shortcut she has found between her place of employment and the university. To dissuade people from using this road, which is uneven and unlit, warning signs have been placed at regular intervals along the route and other signs have been put up across the campus forbidding its use by students. Further particulars are requested on the nature of the route and the possibility of fencing and repairs etc, but it is submitted that the university has already taken reasonable steps, given the considerable number of warning signs that have been erected, to guard against the use of the path. Perhaps signage would not be considered reasonable on its own in a school setting, but in the context of this claim it may be deemed a reasonable response. Therefore, it may be that, although Mandy will be considered a neighbour of the university and thus owed a duty of care, no breach of duty will be found on the facts. Applying the calculus of risk analysis discussed above the cost of taking precautions (ie. making good the right of way) might well be astronomical in comparison to the small risk of injury likely to be suffered given the minimal threat posed by an uneven path and the warning and prohibition notices displayed.

Even if a case is made out against the university it is likely that Mandy's claim would be subject to a plea of contributory negligence and/or volenti non fit injuria. Mandy has chosen to run along a dangerous path, which is, in any event, prohibited to her. Under contributory negligence any damages she might recover are likely to be reduced on the grounds that she was the author of her own misfortune. If the court was persuaded that volenti should apply - namely that she had voluntarily accepted the risk - a complete defence would be available to Mandy's claim: Titchener v British Railways Board.

In summary, Mandy has a much weaker case than those discussed above.

Advice re Dave and Sylvia

Clearly Black Lake poses a hazard that must be managed responsibly by the local and university authorities. In this regard it is noted that warning signs have been placed around the perimeter of the lake and that access to the water has been fenced off as much as possible. In addition it is noted that the lake is under the supervision of university security staff employed by the local authority. That said, according to the brief people do sometimes swim in the lake, particularly in the summer, and fishermen are seen by the lake regularly. This suggests that supervision is somewhat lax.

However, the incident at issue in this scenario occurred after midnight. A court would probably deem it unreasonable to expect a 24 hour guard to be maintained around the lake and the judge is unlikely to be impressed by the fact that the students who decided to go for a swim were drunk.

Applying a calculus of risk style analysis (see above) it seems that while the risk of injury is significant considerable efforts have been made to prevent the use of the lake for the purposes of swimming. The cost of eliminating the risk altogether - ie. by draining the lake or mounting a round-the-clock team of security staff to guard it is probably unreasonably high - although this opinion is subject to further information as to the size of the lake and the position of the lake on the campus. The larger the lake and the more remote its position, the more likely it is that the university's and local authority's precautions will be found to be reasonable.

If a breach of the duty of care owed to the students is found then the elements of damage and causation will be easy to establish (see above). Remoteness of damage is unlikely to prove a problem either (see Wagon Mound above).

However, there is evidence of considerable contributory negligence in the brief, due to the fact that this was a drunken frolic. If the court did decide there was a breach of duty, which itself is a moot point, any damages recovered are likely to be reduced substantially on this ground.

Also, volenti non fit injuria may operate to provide a complete defence on the facts. In Ratcliffe v McConnell a drunken student climbed over fences and proceeded to ignore warnings before diving into the shallow end of a swimming pool at his college. Ratcliffe is thus similar on the facts to the present case and in Ratcliffe it was held that the college was not liable because the student had voluntarily assumed the risk of injury from the danger.

BIBLIOGRAPHY

Stephenson G., Sourcebook on Torts, (2000) Cavendish Publishing

Rogers W.V.H., Winfield and Jolowicz on Tort, (2002) Sweet & Maxwell

Keenan D., Smith and Keenan's English Law, (1998) Pitman Publishing

Kelly D. and Holmes A., Principles of Business Law, (1997) Cavendish Publishing

Keenan, D. and Riches S., Business Law, Seventh Ed, (2001) Longman

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