The Essential Elements to a Successful Claim in Negligence

Murphy may a have tort claim in negligence for breach of duty of care which Lord Goff looked at in Smith v Littlewoods Organisation Ltd [1] and under the “neighbour principle [2] . Lord Adkin’s judgment contained the elements of “reasonable forseeeability” and the “neighbourhood test “where the claimant and the defendant had relationship that is also referred to by Lord Bridge in Caparo Industries v Dickman [3] as the sufficient proximity.

According to the facts, TCC was the owner of the land and of the building therefore as the occupier “…is under a duty to protect not only his visitors but to take steps to remove a hazard on his land which threatens his neighbouring property even though it has arisen from the act of nature or of a third party-property is a source of obligation as well as of rights.” [4] .

One of Lord’s Goff exceptions of the rule of mere-omission was “…The common law does not impose liability for what are called pure omissions” [5] .The courts have established duty then the defendant has control over the land.

Damages to the property must have been foreseeable, TCC had knowledge of previous attempts of vandalism reported by the local residents therefore the vandalism has been reasonably foreseeable and also was the neighbourhood threat.

In Thomas Graham & Co Ltd v Church of Scotland General Trustee [6] the occupier was held liable under similar circumstances and in Smith v Littlewoods, the defendants were not liable as they did not know of the earlier attempts.

Finally, Murphy was closely affected by the defendant’s conduct. Applying these principles TCC owes a duty of care to Murphy who must substantiate that it was the breach of that duty that caused the damage. Regarding to the causation towards TCC the facts are ambiguous as to whether it was the direct cause of the damage. However, in Smith v Littlewoods mere foreseeability was not sufficient basis to find liability, there have to be a closely and direct connection between the damage and the defendants act.

TCC can be liable for not taking further steps for stopping trespasses into the property but that was not the core cause of Murphy’s damage, who may argue that it was in breach of his duty by failing to appropriate precautions.

According to the cases and facts above the claimant’s application is unlikely to succeed as it a claim for damages that were caused by some remote chain of events that can be somehow linked to the defendants act.

A CLAIM BY MURPHY AGAINST CCS

Murphy can have a potential claim for vicarious liability toward Home Office and CCS.

However there is a distinction, Home Office had an contact for services, applying the principle that Lord Widgery stated in Salisbury v Woodland [7] , Home Office has employed CCS as independent contractor, to do work on his behalf, therefore it is not responsible for any tort committed by the contractor in his course of employment.

Whereas, CCS and the wrongdoers had a contract of service which can make them vicarious liable for their act, therefore this claim is stronger than a claim against the Home Office.

An action against CCS for vicarious liability for the tort of Ben and Bill must establish that they were their employees and that the act was committed in the course of employment.

In the judgment of Market Investigations Ltd v Ministry of Social Security [8] , Cooke J refereed to the fourfold test of a contract of service which involves: control over the employee, ownership of the tools, chance of profit and risk of loss; and to what Lord Denning said in Bank Voor Handel en Scheepvaart NY v SlatFord [9] that the test of being a servant depends on whether the person is part and parcel of the organisation.

Looking at the facts behind Murphy’s case it seems that the requirement of the employee test are satisfied as they were under the control of CCS and were part of their organisation.

Clerk & Lindsell on Torts [10] deals with the personal supervision of employer, applying that principle, Bill and Ben were directly under the personal control of his employer, so they were employed as an employee and not as contractor, although they may be specially retained as a skilled in a particular duty such as supervising the youths.

Even if Ben and Bill were employees of CCS for whom they are responsible, Murphy would still need to prove that the act was within the course of employment.

Lord Steyn in Lister v Hesley hall Ltd observed the test for the course of employment, whether the act was “…so closely connected with his employment that it would be fair and just to hold the employer vicariously liable…” [11]

Applying this test it cannot be easy to establish particularly where that connection between his employment were so close that it would be fair and just to hold employer vicariously liable, even though it seems from the facts that it is highly foreseen that such requirement would be satisfied.

In this case, Murphy is likely to contend that CCS were vicarious liable for the act of their employee, firstly because they were under a contract of service and secondly that the negligent act of the employees were within the scope of employment, as it was held in Century Insurance v. Northern Ireland Road Transport Board [12] , the smoking of a cigarette was not too far from the employment therefore it was within its scope.

The case of Home Office v Dorset Yachts Co Ltd [13] which bear similar facts, failure to supervise, the authorities who failed in their duty to supervise were liable therefore responsible for the damage caused. In Murphy’s case, CCS can be liable on the same ground.

Also if CCS is found liable he can claim for economic loss, for the physical damage caused to his business for the time it was damaged.

Furthermore CCS may contest that the employees were acting on a “frolic of his own” and outside his job prescription. However, that might be harder to prove, even though it is up to the decision of the court it was or not.

A CLAIM BY MURPHY AGAINST THE FIRE BRIGADE.

Murphy can have a potential claim against the fire brigade and the issue is whether the fire brigade could be liable for breach of duty in misdirecting if that duty exist power to do but not to act

There is no general duty of care to respond to an emergency by attempting a rescue. In Capital and Counties Plc v Hampshire CC [14] , Stuard-Smith L.J. explained giving the example of the doctors witnessing an accident owns no duty of care to give assistance unless he volunteers and make the victim’s condition worse.

Refereeing to the fire brigade there is no duty of care to respond emergency calls or to fight a fire competently unless the negligent causes additional damages.

In this case they accepted to call therefore it can be argued that the duty of care has been arisen in that moment.

The facts seems to be similar with Kent v Griffiths [2000] [15] , where the ambulance arrived late giving no explanation for the delay, even though it differs from the fire service whose function is to protect the public generally, following the argument it can be said that is more an issue of responding in a reasonable time and circumstances rather than a question of duty of care and also they provided the reason for being late.

However, if a public authority gave an undertaking to assist and the claimant relied on and did nothing to prevent the danger they might be liable but this argument is weak for Murphy who should have at least tried to make some preconscious not to spread the fire when the fire brigade said it was in his way.

The court is likely to reject the idea of reliance by Murphy and regard the fire brigade as being in the same position as a rescuer who will not be liable unless he has made the victim’s position worst such in the Hampshire case.

It can be argued that there is no sufficient proximity between the claimant and the defendant.

Firstly, because the engine was not their local fire brigade and secondly in contrast of Hampshire case where the fire fighters negligently turned off the claimant’s sprinkle system making the fire spread even more, they did not act negligently making the situation worse than it could have been while they were fighting the fire but had lack of knowledge the area.

However, Murphy can argue against the allowance for the defendant capacity lack of knowledge.

It seems that the result would have been the same as the local fire brigade which knew the area could have been in remote place with no alternative means of transport.

According to the previously mentioned cases and East Suffolk Rivers Catchment Board v Kent [16] [1941], the successful defendants were the public authorities.

If Murphy proves liability of the defendant he can get a compensation for the economic loss caused by their negligence.