This case study has been prepared for J & W Lowry Limited By Thomas Elliott Foster

J & W LOWRY LIMITED This case study has been prepared for J & W Lowry Limited By Thomas Elliott Foster 03/09/2013 Contents 1

1.0 Executive Summary... 3 2.0 Brief provided... 4 3.0 Generally... 5 3.1 Liability in Tort... 5 3.2 Defences in Tort... 6 3.2.1 Volenti non fit injuria (consent)...6 3.2.2 Contributory negligence...6 3.3 Negligence...6 3.4 Duty of Care... 6 4.0 Advise Pentimate Leisure (PL) as to their liability to James...7 4.1 Brief to PL s liability toward James...7 4.1.1 Similar case(s)...7 4.2 Duty of Care... 8 4.3 The Tort...8 4.4 Pentimate Leisure s Liability... 9 4.4.1 Occupiers Liability... 9 4.4.2 Vicarious Liability... 10 5.0 Advise Pentimate Leisure (PL) as to their liability to Billy...11 5.1 Brief to PL s liability toward Billy...11 5.2 Duty of Care...11 5.3 The Tort...12 2

5.4 Pentimate Leisure s liability... 12 5.4.1 Employers Liability... 12 5.4.2 Occupiers Liability... 13 5.4.3 Vicarious Liability... 14 Bibliography...15 1.0 Executive Summary Advise Pentimate Leisure (PL) as to their liability to James; Occupiers Liability; 3

Pentimate Leisure would be liable and unable to employ the Volenti non fit injuria defence as seen in the vase of BDW Trading Ltd. The contributory negligence defence would not be able to be employed as in the case Gough v Thorne [1966] 1 WLR 1387 as Lord Denning stated a very young child cannot be guilty of contributory negligence. Vicarious Liability; Pentimate Leisure is vicariously liable for torts committed by an employee however as in the case of Hilton v Thomas Burton [Rhodes] Ltd 1982 AC 462 a defence could be made and it could be deemed that Bob was on a frolic of his own Advise Pentimate Leisure (PL) as to their liability to Billy; Employers Liability; Not liable in accordance with case of Wilson & Clyde Coal Co Ltd v English 1938 AC 57 Occupiers Liability; Under the occupiers liability 1957 Act while the visitor is on the premises the occupier must take care to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted to be there (Wood et al. (2011)) Visitors who fail to use reasonable care for their own safety may find their damages reduced when an apportionment takes place between the occupier and the visitor (Wood et al. (2011)) PL would be Liable on the balance of probabilities to contributory negligence on the balance of probability. Vicarious Liability; Not liable on the Balance of Probabilities 2.0 Brief provided Gateshead Quays and the East Gateshead area is the subject of a 800 million comprehensive regeneration strategy. 4

Pentimate Leisure, the developers of a large water front site are in the process of constructing a 300 bed hotel with state of the art leisure facilities. The nature of the site ground conditions necessitates pile foundations and some diaphragm walling. On the evening of May 23rd. 2012 the streets of Newcastle were deserted-ardent Newcastle United fans packed the city pubs watching the Magpies play Barcelona in the UEFA cup final. Bob Moncur, Pentimate Leisure s night security man, not wanting to miss out on the excitement had brought his T.V. to work. The tension was unbelievable-the score was TWO ALL and the match went into extra time. Bob whom should have carried out his bi-hourly inspection of the site remained in the site cabin, completely engrossed in the match. James (aged 5) and Simon (aged 10), not interested in football, had met up as arranged to look for some excitement elsewhere. Easily gaining access onto the site, as a result of Bob not checking that the gates had all been secured, embarked on a game of cops and robbers. Whilst searching for Simon James stumbled, knocking him-self out, and fell into a water filled excavation. Unable to locate James and believing him to have tired of the game Simon left the site and went home. An hour later, the match having ended, Bob carried out his inspection and found James lying unconscious. As a result of Bob s delay in finding James, James suffered serious brain damage. The following day Alan Foggin, (employed by Perfect Piling) seriously injured Billy, an employee of Pentimate Leisure. Billy had not been wearing his safety helmet. It transpires that Alan had consumed eight pints of beer the previous night while celebrating Newcastle s success and was still feeling a bit worse for wear when he turned up for work. 3.0 Generally 3.1 Liability in Tort This has traditionally depended on fault. It acts as a system of allocating losses which normally requires a claimant to prove that the defendant has deliberately or carelessly caused harm to the 5

claimant strict liability is where the defendant is liable for the consequences of his actions even though he neither desired them nor ought necessarily to have avoided them in the majority of cases where the claimant is successful in an action, the damages will be paid by an insurance company. Without the existence of insurance many claimants, probably a majority, would be left without compensation most of the established forms of building contract require insurance against public liability. In addition to private insurance schemes another source of compensation is the social security system for those who qualify. (Wood et al. (2011)) 3.2 Defences in Tort 3.2.1 Volenti non fit injuria (consent) Voluntary assumption of risk is a complete bar to a claimant being able to claim successfully in the tort of negligence and prevents the claimant from recovering damages even though the tort is established. It arises where the claimant knows of the risk involved, has the choice to accept the risk, but is prepared to run it. Relevant case Smith v Baker 1891 (Wood et al. (2011)) 3.2.2 Contributory negligence Regulated by the Law Reform (Contributory Negligence) Act 1945 which provides that, in such cases, the defence will not fail but the court will make an apportionment between the parties according to the degree of fault. The claimant s damages will be reduced by the extent to which the court considers them to be responsible for their own loss. (Wood et al. (2011)) 3.3 Negligence This is the most important independent tort. It covers a wide range of activites resulting in more litigation than all the other aspects of tort put together negligence may be invoked in relation to a wide variety of interests (Wood et al. (2011)) such as, protection against personal injury and damage to property (Wood et al. (2011)) 3.4 Duty of Care Lord Atkin pronounced a general test that a person owes a duty of care to his neighbour (defined by Lord Akin as someone who is so closely and directly affected by my acts that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question ). - Relevant case Donoghue v Stevenson 1932. (Wood et al. (2011)) 6

A Duty of Care is not owed to the World at Large (Wood et al. (2011)) and therefore the claimant must show that, at the time of the defendant s negligent act some damage to the claimant was foreseeable (Wood et al. (2011)). Lord Bridge considered there were three criteria for determining the imposition of a duty of care; foreseeability, proximity and just and reasonable. (Wood et al. (2011)) Relevant case - Caparo Industries v Dickman 1990 4.0 Advise Pentimate Leisure (PL) as to their liability to James 4.1 Brief to PL s liability toward James On the evening of May 23rd. 2012 Bob Moncur, (Pentimate Leisure s night security man) not wanting to miss out on the excitement had brought his T.V. to work. Bob failed to carry out his bi-hourly site inspection. James (aged 5) easily gained access onto the site, as a result of Bob not checking that the gates had all been secured. At some point during his time on the site James stumbled, knocking him-self out, and fell into a water filled excavation. An hour later, Bob carried out his inspection and found James lying unconscious. As a result of Bob s delay in finding James, James suffered serious brain damage. It appears from the brief that Bob has two known role requirements; A bi-hourly inspection Securing the gates It is also apparent that Bob has failed to carry out both of the roles at some point of his course of employment. Bob is PL s night security man if he is an employee then there is the master/servant relationship between PL and Bob. Therefore vicarious liability can be imposed on PL. 4.1.1 Similar case(s) BDW Trading Ltd were fined 20,000 after a young boy was seriously injured when some timber roof trusses fell onto him The eight year old boy was playing with friends on 28 April 2009 when they got into an unsecured storage area on a construction site.an investigation by 7

the Health and Safety Executive (HSE) found that the construction site could be easily accessed by members of the public, including children. (HSE. (2009). British Railways Board v Herrington 1972 a six-year-old boy was electrocuted on a railway line after climbing through a fence which had not been properly maintained (Wood et al. (2011)). British Rail was deemed liable. 4.2 Duty of Care Under Lord Atkin s neighbour test derived from relevant case Donoghue v Stevenson 1932. (Wood et al. (2011)) A Duty of Care is not owed to the World at Large (Wood et al. (2011)) and therefore James must show that, at the time of the PL s negligent act some damage to [James] was foreseeable (Wood et al. (2011)). It would be reasonable to say that James would qualify as PL s neighbour. Under Lord Bridge s method derived relevant case - Caparo Industries v Dickman 1990 (a) Foreseeability for PL By PL employing lockable gates, fences and a night watchman it is reasonable to assume that PL have foreseen the risk of unlawful Visitors. Furthermore it is a legal requirement to prevent unauthorised access to the site under regulation 13(6) of the Construction (Design and Management) Regulations 2007. - Relevant case - Bourhill v Young 1943 (b) Proximity for PL In construction accidents this requirement is satisfied by the existence of foreseeability. (c) Just and Reasonable for PL This would be decided by the Judge(s). The factor(s) that influence the decision would include whether the parties have insurance cover. (Wood et al. (2011)) 4.3 The Tort No tort = No Liability 8

James has suffered as a result of Negligence (as defined in 3.3) 4.4 Pentimate Leisure s Liability 4.4.1 Occupiers Liability James would be classed as an unlawful visitor and therefore any liability from PL would under the Occupiers Liability Act 1984 (unlawful visitors). As James would be required to prove PL three conditions applied; PL knew of the risk or had reasonable grounds to believe that it existed. PL knew or has reasonable grounds to believe that trespassing may occur. The risk is one that PL may reasonably be expected to offer some protection against. (Chartered Institute of Building (Great Britain) (2008/2009)) 4.4.1.1 Steps that the Occupier should take to prevent access by unlawful visitors 1. Construction (Design and Management) Regulations 2007 Regulation 13(6) requires the contractor to take reasonable steps to prevent unauthorised access to the site Access may be controlled by a gate, a security guard. (HSE. (2009). 2. Site security.is usually achieved by the erection of a strong perimeter fence and a lockable gate. However, it is also important to protect members of the public including trespass by children. (Hughes & Ferrett (2008)) PL has provided both a Gate and a Security guard. 4.4.1.2 Steps that the occupier should take to protect unlawful visitors on-site 1. There is also a need to ensure that the site itself is safe should children manage to trespass onto the site. This involves the removal of access ladders, providing trench supports, covering holes where possible. (Hughes & Ferrett (2008)) James stumbled, knocking him-self out, and fell into a water filled excavation. This Implies that PL has not covered holes where possible. 9

4.4.1.3 Volenti non fit injuria Defence It is unlikely that this defence could be applied as any warning notice will discharge the duty as far as adults are concerned but In the case of children it depends on age as to whether or not they can read or understand it. (Wood et al. (2011)) 4.4.1.4 Contributory negligence Defence This defence could not be applied as in the case Gough v Thorne [1966] 1 WLR 1387 as Lord Denning stated a very young child cannot be guilty of contributory negligence 4.4.1.5 Possible Verdict Due to - 4.1.1, 4.4.1.2 and 4.4.1.3 PL could be liable under Occupiers Liability Act 1984 (unlawful visitors), to owe James a duty to act with Common Humanity as he is a child trespasser. 4.4.2 Vicarious Liability PL would be vicariously liable for negligent torts committed by Bob during the course of his employment, as Bob is an employee of PL. The courts would deduce if Bob is an employee if the master/servant relationship exists and on the amount of control which PL has over Bob such as payment of wages and rights of dismissal and suspension. 4.4.2.1 Steps that Bob should take during the course of his employment Bob should have; A bi-hourly inspection Secured the gates 10

Should Bob have checked that gates had been secured it is reasonable to assume that James and Simon would never have gained access to the site. As a result of Bob not checking that the gates had all been secured the negligence occurred. Should Bob have carried out his bi-hourly inspection the damage James suffered could have been greatly reduced or nil, should Bob have arrived in time to prevent James falling into the excavation. 4.4.2.2 Defence PL would be vicariously liable for Bob unless it could be proved that Bob was on a frolic of his own by not performing his task and watching the T.V. relevant case Hilton v Thomas Burton [Rhodes] Ltd 1982 AC 462. This, if successful, would mean Bob was acting outside the course of his employment. And therefore PL would not be vicariously liable. Wood et al. (2011) 4.4.2.3 Possible Verdict Not liable on the balance of probabilities 5.0 Advise Pentimate Leisure (PL) as to their liability to Billy 5.1 Brief to PL s liability toward Billy Alan Foggin (employed by Perfect Piling (an independent contractor)) reported to work following a night where he consumed 8 pints of beer, roughly 36 units and almost double the recommended weekly limit for a man. (BBC. (2003)) Alan was still feeling a bit worse for wear when he turned up for work and seriously injured Billy, an employee of Pentimate Leisure. At the time of the injury Billy had not been wearing his safety helmet. 5.2 Duty of Care Under Lord Atkin s neighbour test derived from relevant case Donoghue v Stevenson 1932. (Wood et al. (2011)) 11

A Duty of Care is not owed to the World at Large (Wood et al. (2011)) and therefore Billy must show that, at the time of the PL s negligent act some damage to [Billy] was foreseeable (Wood et al. (2011)). It would be reasonable to say the James would qualify as PL s neighbour. Under Lord Bridge s method derived relevant case - Caparo Industries v Dickman 1990 (a) Foreseeability for PL It is foreseeable that personal injury can occur on construction sites hence the requirement of PPE and risk assessments. (b) Proximity for PL In construction accidents this requirement is satisfied by the existence of foreseeability. (c) Just and Reasonable for PL This would be decided by the Judge(s). The factor(s) that influence the decision would include whether the parties have insurance cover. (Wood et al. (2011)) 5.3 The Tort No tort = No Liability Billy has suffered as a result of Negligence (as defined in 3.3) 5.4 Pentimate Leisure s liability 5.4.1 Employers Liability The Personal Protective Equipment at Work Regulations 1992 Act requires employers to provide suitable personal protective equipment (PPE) to employees if it is necessary. PPE must be suitable for the job, PPE must be maintained, Training and demonstrations must be provided and Employers must not charge employees for PPE. (Chartered Institute of Building (Great Britain) (2008/2009)) Employers must take reasonable steps to make sure employees use PPE properly 12

Relevant case Wilson & Clyde Coal Co Ltd v English 1938 AC 57 identified four main duties of the employer; Provide a safe place of work Provide a safe system of work Provide competent staff Provide safe plant and equipment PL has fulfilled the employer s requirements and therefore would not be Employer Liable. 5.4.1.1 Defence PL has provided the required PPE for Billy as defined in the case Wilson & Clyde Coal Co Ltd v English 1938 AC 57. Therefore, PL would not be liable under employer s liability. 5.4.2 Occupiers Liability Billy is a Lawful visitor and therefore protected under the Occupiers Liability Act 1957. Under the Act A lawful person is a person who expressly, or by implication, has been given the right to enter premises. (Wood et al. (2011)) Where a person enters a premises under a contractual right the obligations under the 1957 Act will be implied into the contract. While the visitor is on the premises the occupier must take care to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted to be there. (Wood et al. (2011)) Billy would have been provided with PPE by law and signage would be assumed to be on the site warning of appropriate danger A M F International v Magnet Bowling 1968 In large scale construction projects an occupier would be expected to have the contractor s work supervised by a surveyor, engineer or architect as appropriate. (Wood et al. (2011)) It is unknown if the work was being supervised. 13

5.4.2.1 Defence Roles v Nathan 1963 where tradesmen enter premises to carry out work, the occupier can expect skilled visitors to take any necessary precautions as long as the occupier leaves them free to do so. (Wood et al. (2011)) Rae v Mars 1990 - a surveyor was injured when inspecting a factory. It was suggested that if unusual dangers exist there should be additional warnings indicating the danger together with additional safeguards if appropriate. There is no duty on an occupier to warn of obvious dangers but if the danger is not obvious the warning must be sufficient for the occupier to put the visitor on guard. 5.4.2.2 Volenti non fit injuria Defence A warning may absolve the occupier from liability in which case it discharges any duty of care which might have been owed by the occupier to the visitors - Rae v Mars 1990 (Wood et al. (2011)) Where a visitor voluntarily accepts the risk and choses to enter the premises the defence of consent may be applicable (Wood et al. (2011)) 5.4.2.3 Contributory negligence Defence Jones v Livox Quarries Ltd (1952) - Courts took a look at the contribution of both parties to the damage. Visitors who fail to use reasonable care for their own safety may find their damages reduced when an apportionment takes place between the occupier and the visitor (Wood et al. (2011)) 5.4.2.4 Possible Verdict PL would be Liable on the balance of probabilities to contributory negligence on the balance of probability. 5.4.3 Vicarious Liability Alan is an employee of an independent contractor and therefore provided PL have carried out the necessary check to ensure Perfect Piling are competent contractors then PL would not be Vicariously Liable for any torts committed by Alan. Ready Mixed Concrete v Minister of 14

Pensions 1968 case could be employed as a defence to prove that Alan was an employee of an independent contractor and absolve PL from vicarious liability from Alan s tort. Billy is an employee of PL and therefore PL would be vicariously liable for torts committed during the course of his employment. As it is required by law for Billy to wear PPE during the course of his employment, any negligence that occurred would mean PL would be vicariously liable for them. 5.4.3.1 Defence Billy not wearing his helmet could be seen as his consenting to perform a prohibited act which would mean he would not be in the course of employment. It could be argued that Billy was performing his task in a prohibited method in which case the Judge would decide if Billy was in the course of employment. The case of Kooragang Investments Pty Ltd v Richardson & Wrench Ltd 1982 could be used to prove Billy was acting outside the course of his employment and absolved PL of vicarious liability. 5.4.3.2 Possible Verdict Not Liable on the Balance of Probabilities Bibliography BBC. (2003). How many units is my drink?. Available: http://news.bbc.co.uk/1/hi/uk/3303805.stm. Last accessed 5th May 2013. Chartered Institute of Building (Great Britain) (2008/2009). Construction - health and safety. Kingston upon Thames : Croner. p10-800. Fink, S., Christopher, J. D., Masons (1997). Health and safety law for the construction industry: Masons' guide. London: Thomas Telford. p10-140. HSE. (2009). Site health and safety. Available: http://www.hse.gov.uk/construction/cdm/faq/site.htm. Last accessed 5th May 2013. 15

Hughes, P., Ferrett, E (2008). Introduction to health and safety in construction: the handbook for construction professionals and students on NEBOSH and other construction courses. 3rd ed. London : Butterworth-Heinemann. p10-500. Wood, D., Chynoweth, P., Adshead, J., Mason, J (2011). Law and the Built Enviornment. 2nd ed. Chichester: Wiley-Blackwell. p111-170. 16