Personal injury, Damages

The question involves discerning various issues of litigation that could be either contractual or tortious. The tortuous issue will first of all be considered.

John clearly has a good case to bring a tortuous personal injury litigation action against his employer, even though that person is his father. There are important areas of litigation that must be considered. If John is to bring a successful action against Mike, he must first establish the basic principles that must be established relating to the law of negligence.

The factors that must exist for an action to subsist in this context is that there must be a situation of a duty of care. That duty of care must be owed by Mike to John. There must have been some negligent act. That negligent act must have caused the injury (causation) and finally the injury caused must not have been too remote.

There is no indication that the injury to John was actually caused by Mike's negligence. However, there is enough evidence in the scenario to suggest that a case can be brought against Mike. John only needs to prove on a civil basis on the balance of probabilities that he was owed a duty of care by Mike.

There is further a duty owed by an employer to an employee1 which has been called the threefold duty established in Wilson's Case 2 . This duty can loosely be described as having 5 limbs, which are the duty to provide:

  • a safe place of work
  • a safe system of work
  • effective supervision
  • proper plant and materials
  • competent staff.

This duty can be mitigated if Joohn has in any way been contributory negligent or in other words the author of his own misfortune. This factor has a statutory basis 3 which states that:

"…Where any person suffers damage as a result partly of his own fault and partly of the fault of any other person or persons, acclaim in respect of that damage shall not be defeated if the fault of the person suffering the damage, but damages in respect of the damages recoverable thereof shall be reduced to such an extent the court thinks fit just and equitable having regard to the claimants share in the responsibility for the damage…".

Fault is defined as "…negligence, breach of statutory duty or other act or omission which gives rise to a liability in tort or would, apasrt from this act, give rise to the defence of contributory negligence…"4

Mike as his employer may also have a responsibility under the rule of vicarious liability 5 . This means that an employer has responsibility for acts that an employee does whilst under the control of his employer6 . This may make it more likely that Mike will be liable for an action in negligence.

Further to the above, john may have an action for breach of Mike's statutory duty as an employer under the Construction (General Provision) Regulations 19617 . These duties under the statutory provisions, unlike the broader common law principles, are highly specific and demand that the employer meet them in the strictest terms.

In this regard, John to make a successful claim against Mike must show that Mike did not show reasonable care in his role as employer. The elements to be proved are:

Causation.
This involves applying the 'but for test'. I.e. that but for the negligence of the employer this injury would not have happened. It is decided on the balance of probabilities.
Loss & Damage.
There is no point John bringing an action under this head if he has not suffered the above. It must be foreseeable 8 .John has lost 4 months wages and in this respect he can claim for the lost money he would have earned had the accident not happened.
The above is subject to the remoteness test.
The loss must have been foreseeable. This is dependent on the specific facts of the case. Mike would not have had to envisage that the full loss would have occurred, just that some loss would have occurred. Therefore, this would include the extra £250 he would have earned had the injury not happened 9. It is unlikely that John could claim for anything regarding his loss of earnings for his sacking as a security guard. His behaviour was not necessarily foreseeable and even may be construed as a novus actus interveniens. The Court will only compensate for the direct loss and consequential losses that comply with the above rules relating to remoteness and causation. It is for the court to decide the amount of damages owed to the Claimant's in each case. The basic aim is to compensate not to enrich. The compensatory nature of the damages should put the John therefore back in the position that he would have been had the damage not occurred.

Finally, John should consider whether he has an action against the owners of the property under section 1(1) of the Occupiers Liability Actm1957. Under this act an occupier has an obligation for his visitors. For example if the injury occurred from on the property of the local council, if negligence could be shown than John may be able to join them in any action against Mike.

Presumably, John and Rachel have an assured shorthold tenancy with his landlord Manny. If so, this will be severable after six months. But John and Rachel moved into the flat only in January and wish to break the lease in May. This is only five months of course.

It is a factor that John and Rachel are both under the age of eighteen. This would mean that as for the purposes of the law, both are considered to be minors. The general rule is that a minor shall not be bound by a contract only up until the time "…until he thinks it proper to put an end to it…" 10
Although a minor is not allowed to hold a legal estate land 11 a lease of land that purportedly conveys an equitable interest in land to a minor via a term of years absolute is valid in that context. Such an interest can be rescinded if the minor chooses. Until then, he cannot avoid any liabilities that pass along with the lease. In this respect, John will be liable to Manny even though he is a minor, for the final month's payment of rent, which he and Rachel have prematurely severed.12 The common law is further buttresses by statute in this regard13

According to Anson's Law of Contract, this type of lease is classes as a positive voidable contract 14. This means that where a minor attains an equitable interest in property, the minor will be bound in lieu of some expressly stated disclaimer whilst his minority subsists or very soon thereafter. Therefore, it seems clear that John will be liable to Manny. The rule simply scatted is that, no renunciation of interest, then no immunity from litigation.

John's liability in respect of his partnership with his father is a quite different matter from the above. Keenan cites section 1 of the Partnership Act 1890 that "…the relationship which subsists between persons carrying on a business in common with a view of profit…" 15

The status of the partners is obviously a crucial matter to be resolved. If a court decides that a partnership subsists, all partners proved to be parties to the partnership will be fixed with unlimited liability for any debts of the firm. It can be summarised in terms of the fact that partners are de facto agents of the firm and that any other partners are vicariously bound together.

Cheshire, Fifoot and Furmston remark16 that beneficial contracts of service involving an apprenticeship or of service of a minor bind, the minor does not affix liability to the minor.17 A similar rule to the above viz a viz partnerships applies regarding partnerships. Any debts accrued by a partnership whilst the partnership whilst the partner is still a minor does not affix liability to the minor 18

The above does not however prevent creditors from accessing any savings that belong to common assets. If the minor upon reaching the age of 18 does not repudiate his partnership within a reasonable period time and continues to behave as if still a partner, then he will be personally liable for any debts.

According to Anson's 19 when a minor is a member of a partnership it is slightly less tangible than that of being a holder of an equitable interest in land. That is why, unlike the role of a leaseholder a minor cannot be held accountable for debts racked up by other members of the partnership.

The above does not mean however that in the absence of the firms debtors being satisfied that the minor can exploit the resources of the partnerships. Even after a minor has ceased to be a minor and has withdrawn his relationship with the other partners, liability can still be attached if no adequate notice has been given of termination of existing arrangement.

In respect of Rachel and Julia, this issue involves issues of whether the contract was performed or whether the terms of the contract where breached by Rachel, this allowing Julia to rescind the agreement.

Damages in contract may be claimed where there has been a failure to perform, without lawful reason or at least one of the obligations contained in the contract have been breached. If Julia can prove that Rachel has breached one of the contract she has the right to rescind it. Failure to perform includes:

  • defective performance
  • refusal to perform
  • delayed performance
  • action taken which prevents performance.

In Rachel's case it is a question of whether he has substantially performed the contract. Substantial performance would be sufficient to at least rightfully demand the £12.00 that she says that she is owed by Julia 20 .
If a court is requested to decide the above, it will be necessary to tell the difference between a condition of the contract and a mere warranty. A condition must be fully performed whilst a warranty does not go to the heart of the contract and therefore substantial performance is enough . 21

The above depends on the terms of the contract. The question is was the promise to pay Rachel an express term of the contract or an implied term. A term can be implied even though not expressly stated. There are three possible implied terms:

- by custom of trade and if there is nothing in the contract rto contradict this custom
- statute
- the official bystander test 22

According to Julia there is a customary agreement that they never part with cash for these arrangements. This may be decisive if a court was asked to adjudicate on the issue. This may mean that Rachel is not entitled to claim damages from Rachel.

A contract may lawfully be discharged by the operation of the doctrine of frustration. This can involve an event that has supervened since the contract was made. John's father, Mike did promise to pay John the £5000 bonus. This was dependant on the completion of the contract with the local council.

Mike's financial problems are not in itself a reason to allow the contract to be frustrated according to the common law. According to Cheshire Fifoot and Furmston the doctrine cannot apply if it is self inflicted or there has been extra unforeseen expenses. 23

The fact that the supervening event appears to be out of the control of Mike may be crucial as it is a fundamental element of the doctrine that "…frustration occurs whenever the law recognises that without default of either party a contractual obligation has become inca[pable of being performed because the circumstances in which performance is called foe would render ita thing radically different from that which is undertaken by the contract…" 24

It is submitted that the cancelling of the contract is a supervening event that have fatally undermined the terms of the contract and John is unlikely to successfully litigate in this respect against Mike.

  1. See Wilson & Clyde Coal Co Ltd v English [1978] AC 57[^ Return]
  2. see Michael Jones, The Law of Tort, Blackstone Press, 7th edition 2000.[^ Return]
  3. Law Reform (Contributory Negligence) Act 1945 s 1(1)[^ Return]
  4. in section 4[^ Return]
  5. Jones supra 252, 253.[^ Return]
  6. Lister v Helsley Hall Ltd [2001] 2 All ER 769[^ Return]
  7. See Hendy J & Ford M, Redgrave's Health & Safety, 3rd Edition, London, Butterworths, 1998.[^ Return]
  8. Junior Books v Veitchi & Co [1983] 1 AC 520.[^ Return]
  9. H.Parsons (Livestock) Ltd v Uttley Ingham & Co Ltd [1987] QB 791.[^ Return]
  10. Goode v Harrison (1821) 5 BV & Ald 147, 169 per Best J.[^ Return]
  11. Law of Property 1925 s 1(6)[^ Return]
  12. Davies v Benyon-Harris (1931) 47 TLR 424[^ Return]
  13. Settled Land Act 1925 s27(2).[^ Return]
  14. Beatson J. Anson's Law of Contract, 27th edition. OUP. 1998, P 216[^ Return]
  15. Keenan Dennis, Smith & Keenan 'English Law' Pittman Publishing, 12th edition 1998.[^ Return]
  16. Cheshire Fifoot & Furmston, Law of Contract, 13th edition, Butterworths 1996, p444[^ Return]
  17. Lovell v Beauchamp [1894] AC 607, 611. [^ Return]
  18. [^ Return]
  19. Anson's supra at 217[^ Return]
  20. See Keenan supra p 307.[^ Return]
  21. Hoenig v Isaacs [1952] 2 All ER 176.[^ Return]
  22. Liverpool v Irwin [1977] AC 239[^ Return]
  23. Cheshire supra at page 590.[^ Return]
  24. Davies Contractors Ltd v Farehan UDC [1956] AC 696.[^ Return]

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