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Tort Law School

Advise the various parties to their rights and obligations in relation to the two scenarios below. Answers should be around 1000 words each.

1) Steve was employed as a grounds man at the Chiswick school for girls. The school grounds were considered to be one of the most beautiful sites in the area. Steve's principal responsibilities were to keep the grounds in order and to ensure that the girls did not stray onto the parts of the grounds that were cordoned off. Vicky and Mandy, both 12, often strayed onto the prohibited areas and, on one occasion, Steve used force to remove them, badly bruising Vicky's arm in the process. In defiance of the school's express instructions, Steve often sought the aid of his brother, Mike, in policing the grounds. One evening when patrolling the grounds, Mike carelessly left a lighted cigarette on a pile of papers kept in one of the outhouses, setting it alight.

2) Brenda worked for one of the few remaining coal suppliers until she retired on the grounds of ill health in Feb of this year. She was, for the 15 years of her employment, involved in mainly manual work, loading coal into bags and trucks for delivery to the firm's many business and private customers. Six months before she retired, Brenda discovered that she had lung cancer. Her Father and Grandfather had been heavy smokers and had both died of lung cancer. Brenda was a 'social smoker'. Brenda's union representative advised her that several scientific studies had linked lung cancer to exposure to coal dust. Such studies suggested that employees could alleviate such risks by allowing employees 30 minutes of fresh air after every three hour shift.

1) It is assumed that both Vicky and Mandy are pupils at the school for the purposes of this answer. Both girls may have an action against the school in the tort of negligence. To establish an claim in negligence five essential criteria must be satisfied. In this case it is necessary to prove that Vicky and Mandy are owed a legally recognised duty of care by the defendant. Next, a breach of that specified duty must be proven on the balance of probabilities. The girls must then demonstrate that damage has been suffered. Fourth it must be shown that the injury sustained came about as a direct result of the breach identified. Lastly it must be proved that the damage is not excluded in law on the ground of being remote. ie. it must be shown that the damage identified was reasonably foreseeable in the circumstances of the case

Each of these conditions must be satisfied before Vicky and Mandy can be advised they have a sound case for to be compensated. Each condition is addressed below.

In Donoghue v Stephenson. Lord Atkins described the range of the duty of care in negligence by way of a formulation that has been adopted and applied in numerous cases:

"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?"

Lord Atkin proceeded to answer this crucial question:

"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."

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It is easy to conclude that Vicky and Mandy, being pupils of the school, will be deemed neighbours of the school under this statement of the law. Given the likely existence of a duty the issue of breach of the duty of care can be investigated. 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.

The facts indicate that Steve has been lax in his duty to keep the girls away from the property in question. This conclusion is suggested by the fact that it is stated that the girls often stray onto the prohibited areas. Moreover, Steve's use of force in removing the girls is clearly and excessive and negligent response to the situation.

It should be noted that these girls are only twelve years old and that Vicky's arm has been badly bruised by Steve's actions. It is argued that it should not have been necessary to manhandle the girls in any fashion, let alone to apply such physical force as to inflict serious bruising. It is concluded that Steve's actions would not have been performed by a prudent and reasonable man, and that a breach of duty has occurred.

The damage suffered by Vicky is clear and claimable. It seems that Mandy has escaped physical injury but there is a possibility that she has suffered emotional trauma and stress which may be claimable. Further particulars on this issue are sought.

Causation is clear on the facts. The chain of events running from Steve's use of physical force to Vicky's injury is straightforward and unbroken. Barnett v Chelsea and Kensington Hospital Management Committee (discussed below) is authority on this issue, which should present no significant obstacle to Vicky's claim.

Remoteness of damage will not bar Vicky's claim either. The Wagon Mound No.1 (1967) , provides that only damage which is a reasonably foreseeable consequence of a breach is recoverable in law. It is submitted that a badly bruised arm is a normal and natural consequence of the use of physical force as applied by Steve in this context. Therefore it is concluded that Vicky's claim will not be defeat on the grounds of being remote.

In light of the fact that we have satisfied each of the elements of Vicky's claim in negligence she can be advised that she has a claim against both Steve and more importantly the School which employs him on the basis of vicarious liability. Vicky would be advised to focus on her claim against the School, given that the School will have the insurance cover to adequately meet any damages awarded. As stated, Mandy may also have a claim, but we need to know more about any emotional damage she may have suffered in order to offer reliable advice.

Mike is not an authorised visitor at the school and can be considered a trespasser. The same negligence criteria described above are applicable and it is clear that the School is owed a duty and that Mike is in breach of that duty in carelessly leaving a lit cigarette on paper. The damage suffered is that done to the outhouse and surroundings by the fire and there is no difficulty proving causation or the issue of remoteness on the facts. Mike will be liable to compensate the School in damages and Steve is likely to be subject to severe disciplinary action if not dismissal as a result of his repeated breach of express instructions not to seek the aid of any other party in policing the grounds.

2) There is a sophisticated and exacting legal regime imposed on employers for the purposes of promoting and safeguarding workplace health and safety. Brenda has discovered she suffers from lung cancer and she has been advised that several scientific studies have linked lung cancer to exposure to coal dust, which was part and parcel of Brenda's work for fifteen years.

In the celebrated case Wilsons and Clyde Coal Ltd v English it was held by the House of Lords that employers are under a duty to provide:

1) a safe place of work;
2) a safe system of work;
3) full and appropriate training;
4) safe equipment and materials;
5) competent employees.

Brenda may be advised to argue that her employer failed to provide a safe system of work because the employer did not allow her a thirty minute fresh air break every three hours. However there are major potential problems with her claim. First, the strength of the evidence linking exposure to coal dust with lung cancer is unclear on the information provided in the brief. The status of the scientific studies linking the dust with the disease is unspecified.

Thousands of so-called scientific studies are published each year and they are wildly different in substance, form and nature. It is necessary both to establish the credibility and influence of the studies in question and the strength of the link between the dust and the disease. Studies have been published over the years producing all kinds of results and conclusions, for example, linking the consumption of biscuits with heart disease and the consumption of black pepper with lung cancer, but it is not necessarily the case that compelling and serious risks to health are thereby identified.

By the same token it is necessary to establish that the suggestion made by the studies that employees could alleviate such risks by allowing employees 30 minutes of fresh air after every three hour shift holds scientific water. Therefore Brenda has considerable work to do in establishing that the evidence on which she is basing her claim is reliable and compelling. If the said studies or any of the considered conclusions of those studies are deemed to be of little value, then Brenda's case may fail at an early stage for lack of proof, given that her claim must be established on the balance of probabilities before the court.

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The second major difficulty with Brenda's claim is that she is a smoker, and that she comes from a family of heavy smokers. Whatever the evidence linking coal dust with lung cancer, there is an enormous amount of compelling evidence linking smoking with lung cancer. The fact that both her father and grandfather were heavy smokers, and that they both died of lung cancer, suggests a genetic and social predisposition to Brenda's current predicament. Brenda will have been subject both to direct inhalation of cigarette smoke and presumably the passive inhalation of cigarette smoke in the family setting.

Brenda will have an uphill struggle convincing the court that her disease is linked to her exposure to coal dust at work and not to her voluntary smoking habit, which is known, both publicly and unequivocally, to cause the disease complained of. The issue of causation will be the central and pivotal matter in this case and it is one that cannot be decided here. Expert medical evidence will need to be adduced on both sides and considered carefully by the court.

In the case Barnett v Chelsea and Kensington Hospital Management Committee a man presented at hospital suffering stomach pains, but was told to go home without even being examined by a doctor. The man later died. It transpired that the man had been poisoned by arsenic and that he would have died even if he had received the best medical attention available. Manifestly the hospital had been negligent in failing to examine him, but that negligence was not considered to be the cause of death and therefore the hospital avoided liability.

It is submitted that, subject to expert consideration of the relevant medical evidence, the same fate may befall Brenda's claim. It may be deemed the employer was negligent in failing to provide the necessary fresh air breaks so as to ensure a safe system of work, but this may not be considered the ultimate cause of Brenda's lung cancer in the circumstances.

In addition to the further investigation specified above, it is important to ascertain the length of time Brenda was a smoker and the number of cigarettes per day that she smoked. It is presumed given the words of the brief that Brenda has now given up smoking.

If Brenda can prove that the studies linking coal dust and cancer are compelling and that her own condition appears (on the balance of probability) to have been caused by exposure to the dust and not to her smoking (which is probably the highest hurdle), then she can bring a solid case against her employer on the further proviso that she can establish that the employer acted unreasonably in failing to allow her a thirty minute fresh air break per three hours. In order to fulfil the latter requirement Brenda will need to demonstrate that the risk of lung cancer due to exposure to dust was or should have been known to employers in the sector concerned.

Bibliography

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

Cooke, J, Law of Tort, (2005) Pearson

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

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

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

Weir, T, Casebook on Torts, (2004) Sweet and Maxwell

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

Spink P, Challenging Environmental Tobacco Smoke in the Workplace, Environmental Law Review, (2000) Volume 1 Issue 4, pp243-265.


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