Third party Liability in Negligence and Tort actions

Third party Liability in Negligence and Tort actions

Sunday, February 09, 2020

 

A person cannot be held liable for the acts of third parties, unless there is a special relationship with that third party. In P Perl (Exporters) Ltd vs Camden LBC (1984), thieves gained entry into the defendant’s flat and were then able to break into the plaintiff’s property. It was accepted that the damage was foreseeable but there was no obligation on the part of the defendants to prevent the harm from occurring.

Perl was followed in the case of King vs Liverpool CC (1986). In this case, the defendants left their property vacant and unprotected, with the result that vandals gained entrance, damaging the plaintiff’s flat. The defendants were held not to be responsible for the acts of the vandals. What particularly troubled the court was the question of what would be the extent of the defendant’s obligation, if he was obliged to protect his property. Would it have to be put under 24 hour guard, etc?

In Smith vs Littlewoods Organization Ltd (1987), it was held that the defendant could be responsible for the acts of third parties if ‘special circumstances’ existed, as follows;

• A ‘special relationship’ between plaintiff and defendant;

• A source of danger was negligently created by the defendant and it was reasonably foreseeable that third parties would interfere;

• The defendant had a knowledge or means of knowledge that a third party had created or was creating a risk of danger on his property and failed to take reasonable stepladders to abate it.

On the facts of Littlewoods, the damage was not reasonably foreseeable, so the defendants were not liable. There was a difference in approach between the judges. Lord Goff saw the intervention of a third party as a novus actus interveniens which ‘breaks the chain of causation’. Lord Mackay, on the other hand, did not see the question in terms of remoteness and causation but in terms of fault. He felt that a third party intervention does not release the defendant from liability but in most cases the chances of harm being caused by a third party are slim, therefore, it is not reasonable to suppose the defendant to take precautions against the harm occurring.

Lord Goff’s view is preferred by most academic writers and was followed by the Court of Appeal in Topp vs London Country Buses (South West) Ltd (1993).

An employee of the defendant bus company habitually left his bus unlocked with the key in the ignition. After a short interval, a relief driver would drive the bus away. On the day in question, the relief driver failed to turn up and sometime later the bus was stolen by joyriders who knocked down and killed the plaintiff’s spouse. The Court of Appeal held that no duty of care arose. Arguably, if Lord Mackay’s test had been used, then the plaintiff would have succeeded as the trial Judge had found the defendant’s actions to be careless.

Nervous shock or psychiatric injur.

The courts have been slow to allow claims for nervous shock except they are coupled with physical injury to the plaintiff. There are many criteria that the plaintiff must satisfy before there is liability for nervous shock.

Primary victims.
 

The law of negligence concerning nervous shock makes an imperative distinction amid primary and secondary victims. The Primary victims are those who have been straight involved in the coincidence and are within the array of foreseeable physical injury. In the case of secondary victims who are not within the array foreseeable physical injury, certain mechanism are put in place to limit the number of claimants to avoid an opening of the floodgates. These principles are derived from a decision by the House of Lords in Page vs Smith (1995). The plaintiff smarted from myalgic encephalomyelitis, also known as chronic fatigue syndrome or post-viral fatigue syndrome. In the eyes of the law, this is regarded as a psychiatric injury. The plaintiff was physically uninjured in a collision between his car and a car driven by the defendant but his condition became chronic and permanent, as a outcome of the accident. Secondary victims are required to show that injury by way of nervous shock had to be foreseeable (Bourhill vs Young (1943); King vs Phillips (1953).

In Page vs Smith, the collision was relatively minor and nervous shock was not foreseeable. Nevertheless, the plaintiff recovered as an outcome of the foreseeability of physical injury, even though the plaintiff was not actually physically injured. Lord Lloyd felt that to enquire whether the plaintiff was actually physically injured introduces hindsight into the question of foreseeability, which has no part to play with primary victims.

However, hindsight was a legitimate consideration with secondary victims. Lord Lloyd also felt that there was no justification for introducing a difference between physical and psychiatric illness, at least as far as primary victims are concerned.

Lord Keith, in a dissenting judgment, felt that the injury had to belong to a class or character that was foreseeable.

Rescuers and employees were classed as primary victims in Frost vs Chief Constable of South Yorkshire (1996). It was held in White vs Chief Constable of South Yorkshire (1999) that an employer is not under an obligation to protect employees from psychiatric harm unless the employer has breached a duty to protect employees from physical harm.

In Hunter vs British Coal Corporation (1998), Brooke LJ identified three categories of ‘primary victim’:

• Those who fear injury to themselves;

• Rescuers of the injured;

• Those who believe they are or nearly or have been the involuntary cause of another’s death or injury.

Distinction between primary and secondary victims.

No policy control mechanisms to Policy control tools to limit the number of applicants Foreseeability of physical injury or Foreseeability of injury by way of nervous shock Issue of foreseeability considered Issue of foreseeability considered prospectively with hindsight No distinction between physical Distinction between physical and or psychiatric injury psychiatric injury. Foreseeability judged by reference to whether a person of normal resilience would have suffered a recognizable illness Secondary victims medically renowned psychiatric disease or disorder.

Before there can be liability for secondary victims, there should be a medically renowned psychiatric illness or medical illness, there is no legal responsibility for emotional distress or grief except where this leads to a familiar medical condition these have been thought to comprise:

• Depression (Chadwick vs British Transport Commission (1967));

• Personality change (McLoughlin vs OÕBrian (1983));

• Post-traumatic stress disorder (Hale vs London Underground (1992)).

It was held in Hicks vs Chief Constable of South Yorkshire (1992) that there might be no claim for the terror underwent directly before demise for the information that death was imminent. An abnormally sensitive complainant will be unable to recover save a person of ‘normal’ resilience would have suffered.

The distinction between grief and a recognized psychiatric condition was again discussed in Vernon vs Bosley (No 1) (1996). The plaintiff was found to suffer from post-traumatic stress disorder (PTSD), complicated by a grief reaction. While PTSD is recoverable because it is a recognized psychiatric condition, grief is not compensatable. It was held by a majority that although the rules of nervous shock limit the number of potential claimants, they do not bound the compensation to those who are owed a duty-of-care. Even though part of the injury was attributable to grief, damages were recoverable in full.

Additional criteria.

In addition to the above, there are other criteria that the secondary victim will have to satisfy before the plaintiff can recover for nervous shock:

• Proximity in terms of relationship – the plaintiff should be in a close & loving relationship with the accident victim (rescuers are an exception to this rule);

• Proximity in terms of time & space – the plaintiff must be at the prospect of the misfortune, in the vicinity of the accident or have come crosswise the ‘instantaneous aftermath’ of the accident;

• Reasonable foreseeability – the plaintiff’s injuries must have been reasonably foreseeable;

• There must have been a direct perception of the coincidence by the plaintiff with the plaintiff’s own ‘unaided senses’;

• Sudden shock – the illness must have been caused by a sudden shock.

Proximity in terms of relationship.

Own safet.

Initially, the law only allowed recovery where the plaintiff had been put in fear of his own safety (Dulieu vs White (1901)). Note the rules which now relate to primary victims (Page vs Smith, above). The plaintiff in McFarlane vs EE Caledonia Ltd (1994) was on a support vessel at the Piper

Alpha disaster. At first instance, it was held that he could recover even though he was not a person of reasonable fortitude, as he had feared for his own safety. This was overturned by the Court of Appeal. Stuart- Smith LJ said that to claim for your own safety the plaintiff would have to be:

• In the actual area of danger;

• While not in the area of actual danger, because of the sudden and unexpected nature of the event, the plaintiff reasonably thinks he is;

• While not originally in the area of danger, the plaintiff is involved later, that is, a rescuer.

In McFarlane vs Wilkinson (1997), the plaintiff was on a vessel close to the Piper Alpha disaster, but could not be classed as a primary victim. The vessel was close to danger, but never actually in danger.

Fear for the safety of other.

Eventually, the law was extended so that recovery was allowed where the plaintiff feared for the safety of others. Hambrook vs Stokes (1925) is authority for this proposition, although it should be noted that this is a difficult case and evidence was adduced that the plaintiff had feared for her own safety.

Close & loving relationship.
 

In Alcock vs Chief Constable of South Yorkshire (1991), it was held by the House of Lords that the plaintiff had to be in a ‘closely & loving relationship’ with the accident victim. This approach rejected an earlier approach by the Court of Appeal which tried to put a restriction on the amount of claims by limiting claimants to specific categories, such as parents and spouses.

Nervous shock caused through damage to property.
 

The cases looked at so far have concentrated on nervous shock following the negligent infliction of personal injury on a loved one. Claims have been allowed for damage to property as well as physical injury. The Court of Appeal in Attia vs British Gas (1988) allowed for nervous shock after the plaintiff witnessed her house burning down as an end result of the defendant’s negligence in installing central heating.

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Proximity Negligence and the Principle of Rescuer's Liability

Proximity Negligence and the Principle of Rescuer's Liability

Saturday, January 25, 2020

Physical injury

The meaning of the term ‘proximity’ differs according to who is using the term, when it is being used and the type of injury that has been suffered. As far as physical injury is concerned, the courts will readily hold the parties to be proximate and for this type of injury proximity really equates to foreseeability. In examination questions where the problem revolves around physical injury, it is unlikely that the examiner is requiring detailed consideration of the tests required for a duty of care but the problem will revolve around some other facet of negligence.

However, the House of Lords has held in Marc Rich & Co AG vs Bishop Rock Marine Co Ltd (1995) that, even in cases of physical damage, the court had to consider not only foreseeability and proximity, but also whether it was fair, just and reasonable to impose a duty.

The third requirement of ‘fair, just and reasonableness’ was lacking in Mulcahy vs Ministry of Defense (1996). The plaintiff was a soldier serving with the British army in the Gulf War. He was injured and his hearing was affected when his gun commander negligently ordered a gun to be fired. Two of the components of a duty of care – foreseeability and proximity – were found to be present. However, taking into account the circumstances including the position and role of the alleged tortfeasor and relevant policy considerations, it was not fair, just and reasonable to impose a duty.

An unusual case of negligence causing physical injury is Revill vs Newbery (1995).

The plaintiff, who was a trespasser and was engaged in criminal activities, was attempting to break into a brick shed on the defendant’s allotment. The defendant poked a shotgun through a small hole in the door and fired, injuring the plaintiff. The defendant was found to be negligent and had surpassed the level of violence justified in self-defence. The plaintiff, however, was found to be two-thirds contributory negligent.

In the Marc Rich case, Lord Steyn drew a distinction between ‘directly inflicted physical loss’ and ‘indirectly inflicted physical loss’. He said that the law would more readily impose liability for the former than the latter. The defendants unsuccessfully attempted to rely on this distinction in Perrett vs Collins (1998). One of the defendants had inspected a light aircraft and certified that it was airworthy. The other defendant was the certifying authority. They were held to owe a duty of care to the claimant who was a passenger in a test flight. The Court of Appeal said that the distinction was more relevant to economic loss and was not germane to physical injury. The test would be functional in novel categories and did not apply to established categories of liability for personal injury.

Rescuers.

Rescuers as plaintiff.

The law does not oblige a person to undertake a rescue, unless they are in a special relationship, but the courts are favorably disposed to someone who does attempt a rescue and is injured in the process. Like physical injury the courts require very little more than foreseeability before they hold the parties proximate.

The courts have held that where the defendant has negligently created a situation of danger, it is foreseeable that someone will attempt a rescue and it will not be possible for the defendant to argue that the rescuer is volenti non fit injuria or constitutes a novus actus interveniens (Haynes vs Harwood (1935)); Baker vs TE Hopkins and Son Ltd (1958)).

As far as rescuers are concerned, the courts are quick to regard someone as being foreseeable and impose few conditions in declaring the parties proximate. However, there must be a real threat of danger (Cutler vs United Dairies (London) Ltd (1983)). The plaintiff attempted a rescue when no one was in a situation of danger and was consequently not owed a duty.

However, even if the victim was not in real danger, the defendant will owe a duty if the rescuer’s perception of danger was a reasonable one (Ould vs ButlerÕ s Wharf Ltd (1953)).

The duty owed to a rescuer is independent from that owed to the accident victim. The defendant may, therefore, owe a duty to the rescuer where none is owed to the accident victim (Videan vs British Transport Commission (1963)).

If someone negligently imperils himself or his property, it is foreseeable that there may be an attempt at a rescue and a duty of care will arise on the part of the accident victim. This includes a duty of care to a professional rescuer, such as a fireman (Ogwo vs Taylor (1987)).

Professional rescuers were also the subject of Frost vs Chief Constable of South Yorkshire (1996). The case arose out of the Hillsborough disaster.

The plaintiffs were police officers, four of whom were at the ground at the time of the tragedy, but their roles differed. Three of the four were found to be rescuers. A fifth officer who was not on duty at the ground but reported to a hospital later in the afternoon and helped in mortuary duties was not found to be a rescuer and her claim was dismissed. All five officers had suffered post-traumatic stress disorder and claimed in nervous shock. The claims of civilian relatives of victims for nervous shock damages had been dismissed in Alcock vs Chief Constable of South Yorkshire (1992). Despite the fact that both cases arose out of the same incident, the four officers who were present at the ground succeeded in frost. The three officers who were classed as rescuers were owed a duty in two capacities: in their first capacity as rescuers and in their second capacity as employees of the defendant. The fourth officer present at the ground was owed a duty as he was the defendant’s employee.

In Duncan vs British Coal Corporation (1997), the plaintiff was 275 metres from a colleague when he was crushed to death. He was contacted over the telephone and arrived at the scene where the accident occurred, within four minutes and administered first aid. He was held not to be a rescuer.

Rescuers as defendant

Although rescuers are quickly held to be owed a duty, there are situations where a rescuer himself can owe a duty to the accident victim. For example, where the rescuer by his conduct in commencing a rescue deters or prevents others from attempting a rescue, on the principle of ‘detrimental reliance’ (Zelenko vs Gimbel Bros (1935)). There is Canadian authority for saying that where a rescuer worsens the condition of the accident victim, then the rescuer becomes liable to the accident victim (Horsley vs MacLaren (1970)). There is no duty at large to help someone in need of urgent assistance. However, when an ambulance service accepts a 999 call, a duty will be owed if the patient is identified by name and address (Kent vs Griffiths (No 3) (2000)). Unlike other public services, only the patient’s welfare is at issue and there is no conflict of priorities in imposing a duty as there is with the police force; consequently, foreseeability and proximity are made out.

Apolice officer is under a duty to go to the assistance of a colleague who is under attack (Costello vs Chief Constable of Northumbria (1998)).

Contributory negligence and rescuers

The courts are reluctant to hold rescuers contributorily negligent, for example, Harrison vs British Railways Board (1981) but, if a rescuer has been contributorily negligent, damages will be reduced accordingly (Sayers vs Harlow UDC (1958)).

Omissions

The law makes a distinction between misfeasance and nonfeasance.

There is liability for the former but not for the latter. In other words, there is no liability for omissions. A can watch B drown in an inch of water and incur no legal liability, unless Astands in a special relationship to B. However, if you start off a chain of events and then omit to do something, for example, begin driving a car and then omit to brake, with the result that you knock someone down, then there will be liability.

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Benefits of Hiring a Professional and Experienced Wrongful Death Attorney

Benefits of Hiring a Professional and Experienced Wrongful Death Attorney

Wednesday, January 22, 2020

Minnesota law defines wrongful death as one caused by the wrongful act or omission of any person or corporation. The wrongful act can be intentional or negligent. A wrongful death claim resembles a standard personal injury claim, but in the former, the injury has claimed the life of a person.

Therefore, in wrongful death, the surviving family of the deceased person must bring the case to court and fight for justice, either on their own or with the help of a wrongful death lawyer.

Liability in a Minnesota lawsuit for wrongful death is expressed in terms of money damages. The claim is not based on the damages to the deceased, but on the losses that surviving family members will endure while getting accustomed to living without the deceased.

A Wrongful Death claim can include compensation for:

● Loss of income, wages, and benefits to the surviving family as a consequence of the death

● Sorrow, mental distress, and loss of solace

● Loss of care, guidance, companionship, or society

● Expenses for the care and treatment required to treat the deceased individual’s final injury or illness

● Reasonable burial and funeral expenses

In order to compensate for these damages, the family must prove to the court that they have suffered a “pecuniary” loss, meaning loss of things of value or money.

Why Should I Hire a Wrongful Death Attorney in Minnesota? 

If you are struggling with finances due to untimely death of a family member caused by someone else’s negligence, speak to a wrongful death lawyer.

Here’s why:

● Reach satisfactory settlement - Jury considers pain, suffering, and emotional distress if your case goes to court. You might leave these out when looking to fight for yourself, but a settlement that doesn’t include these damages might not be complete. A professional lawyer can explain to you all the damages you deserve to be compensated for and will advocate on your behalf to ensure a satisfactory settlement.

● Maximize recovery - Whenever you suffer serious injuries, you need to get an attorney who will help you understand the entire spectrum of damages to which you’re entitled and will proficiently negotiate on your behalf to maximize your recovery.

● Navigate the complex legal process - It can be overwhelming for you to make sense out of complex legal jargon and prepare documents and evidence on your own. A wrongful death lawyer will help you with their years of experience and make it easy for you to navigate the process.

● Protect your family’s future - Dismissing wrongful death lawsuits as a shameless act to grab some cash can be a big mistake. If the deceased was the breadwinner for the family, the surviving spouse might earn enough to make ends meet. The costs related to the death itself can amount to tens of thousands of dollars. By filing a claim through a wrongful death lawyer in Minnesota, a surviving family can seek compensation not only for these expenses but for income that will guard their financial future.

● Never deal with insurance companies alone - Often the negligent party has insurance that covers a wrongful death judgment. Insurance companies will often present a quick offer to settle the potential lawsuit. Such offers are usually lower than what the family deserves to be compensated. An experienced wrongful death attorney will know how to deal with insurance companies. They might reach a negotiated settlement that is more reasonable and fair to your family.

● Time is critical - In Minnesota, the surviving family must file a wrongful death lawsuit within three years of the deceased person’s date of passing. If the claim is not filed within three years, the court will most likely refuse to hear it at all, with rare exceptions. A personal injury attorney specializing in wrongful death lawsuits can help you speed up the legal process by handling a majority of the case by themselves.

● Attorneys can take trial cases - If and when all attempts of reaching a reasonable settlement fail, your attorney will not back down from a trial case. Having a professional wrongful death attorney representing you in the court, or even the fact of it, shows insurance companies you are serious about getting justice for your loved one’s death. Therefore, they might be more inclined to make an equitable settlement offer earlier and better.

Accidents such as farm accidents, auto accidents, construction accidents, plane crashes, fires, product failures, and workplace explosions can lead to the wrongful death of a loved one in your family.

Instead of going through the complicated legal process by yourself in a time of distress and pain, find yourself a reliable wrongful death lawyer in Minnesota who will aggressively fight for your right to equitable compensation.

You’re entitled to recover damages from the loss of a close family member. Let a professional attorney decide how much you deserve to be compensated.

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Rescuers Liability for Negligence and Nervous Shock

Rescuers Liability for Negligence and Nervous Shock

Wednesday, January 22, 2020

Rescuers are an exception to the rule that claimants for nervous shock have to be in a ‘close and loving relationship’ with the accident victim.

In Chadwick vs British Railways Board (1967), the plaintiff was a passer-by who assisted at the scene of a rail disaster. He did not know the accident victims, but was able to recover.

In Hale vs London Underground (1992), a professional rescuer, a fireman, was awarded damages for nervous shock.

Professional rescuers were again allowed to recover in Frost vs Chief Constable of South Yorkshire (1996). The case was another Hillsborough stadium disaster case. The five plaintiffs were police officers, four of whom were present at the ground and the fifth discharged mortuary duties at a local hospital following the disaster. Three out of the five plaintiffs were classed as rescuers and were able

to recover damages for their psychiatric injuries, on that basis. In addition, as the disaster was instigated by the negligence of their employer, the four officers present at the ground were owed duties in their capacity as employees from their employer. They were at the scene as a matter of obligation. The fifth officer was not owed a duty, as she was neither a rescuer nor at the ground when the negligence occurred. A majority of the Court of Appeal held that rescuers and employees are primary and not secondary victims.

This enlightens the inconsistency between this case and Alcock, where relatives of the victims of the disaster did not succeed as they lacked sufficient proximity. Frost can also be distinguished from McFarlane vs EE Caledonia Ltd, as in the latter case the employee was off duty and consequently not owed a duty by his employer, he was not under an obligation to be at the scene of the Piper Alpha disaster.

Judge L J, in a dissenting judgment, held that all employees and all rescuers could not be categorized in fixed categories as primary and secondary victims. The classification should depend on the facts of the case.

An employee is a ‘primary victim’ when exposed to the risk of physical injury caused by a colleague and is ‘directly involved’ as a participant in an incident (Scholfield vs Chief Constable of West Yorkshire (1998).

The House of Lords held in White vs Chief Constable of South Yorkshire (1999) that an employer is not under an obligation to guard employees from psychiatric harm unless the employer has breached a duty to protect employees from physical harm. A rescuer who was not himself exposed to physical risk was a secondary victim.

But, rescuers who are employees may be successful in claims for psychiatric injury if the employer fails to provide counselling after the shocking event. This was suggested in Leach vs Chief Constable of Gloucestershire (1999) and the argument is being pursued by two policewomen who attended the aftermath of the Dunblane massacre.

Proximity in terms of time and space.

Initially, the plaintiff had to be at the scene of the accident to be able to recover for nervous shock. In Bourhill vs Young (1943), the plaintiff was 50 yards from the scene of the accident which she could hear but could not see and was held to be insufficiently proximate. Similarly, in King vs Phillips (1953), the defendant was a taxi driver who negligently ran over a boy’s tricycle. The plaintiff was the boy’s mother who witnessed the accident from a distance of 70 yards. It was held that she was insufficiently proximate to the scene of the accident.

However, a change can be noticed in the courts’ attitude in the case of Boardman vs Sanderson (1964), where the plaintiff who again heard but was not present at the scene of the accident was able to recover.

In McLoughlin vs O’Brian (1981), the plaintiff was two miles from the accident but rushed to the hospital to see her family prior to them receiving medical treatment and was held to be sufficiently proximate. She had come across the ‘immediate aftermath’ of the accident.

In Jaensch vs Coffey (1984), the plaintiff who saw her husband in hospital in a serious condition after he had been injured, succeeded in her claim for nervous shock.

In Duncan vs British Coal Corporation (1997), a plaintiff who was 275 meters away from the scene of the accident and reached at the scene four minutes later but saw no injury or blood was not satisfactorily proximate in terms of time and space.

Reasonable foresee ability.

In Bourhill vs Young, the plaintiff did not recover as she was not regarded as being reasonably foreseeable. Two views formed as to the true ratio of the case. The first view holds that the defendant must be at the scene of the accident. The second view states that injury by way of psychiatric injury must be foreseeable. The later view is now taken as the test for foreseeability – the defendant should be able to foresee injury by way of nervous shock.

Direct perception.

In McLoughlin vs O’Brian, certain policy issues came to the fore. Lord Wilberforce felt that there was a need to set some limit on the extent of liability and it was therefore necessary to limit claims where there had been a direct discernment of the accident with the plaintiff’s own unaided senses. Lord Bridge, however, did not see the necessity of setting such an arbitrary limit on claims.

For several years after McLoughlin vs O’Brian, there was considerable uncertainty as to the state of the law. In Hevican vs Ruane (1991), the plaintiff saw his son’s dead body sometime after he died, without coming across the ‘immediate aftermath’ of the accident. Similarly, at first instance, in Ravenscroft vs Rederiaktiebolaget (1991), the claim of a mother who did not come across the ‘immediate aftermath’ was initially allowed.

Alcock settled the fact that it had to be a direct perception of the accident with the plaintiff’s own unaided senses. Ravenscroft vs Rederiaktiebolaget was, as a result, overturned on appeal.

Sudden shock.

There must be a sudden shock. This requirement has been doubted in a dissenting judgment by Sir Thomas Bingham MR in M vs Newham LBC (1994).

Policy or principle?

The policy limitations on the rights of secondary victims to recover have caused many arbitrary distinctions and much dissatisfaction with the law relating to nervous shock. Why was it possible for the police officers present at the Hillsborough disaster to recover (Frost) but not relatives of the victims (Alcock)? Why can an employee present at the scene of disaster recover (Frost) but not an off duty employee similarly present at the scene of disaster (McFarlane vs EE Caledonia Ltd)? What is the difference between coming onto the immediate aftermath of the accident (McLoughlin vs ÕBrian ) and hearing about the accident and seeing its consequences sometime later (Ravenscroft vs Rederiaktiebolaget)?

Policy limitations have caused great uncertainty as to the state of the law. They are thought necessary, as without them the floodgates would open. There is evidence to suggest that this assumption is not justified.

Legislation in New South Wales allowed a parent or spouse to recover for nervous shock, without the requirement that there be proximity in terms of time and space. No flood of litigation followed.

Murphy (1995) argues that the three stage test should be replicated throughout negligence. There would be no sharp divergence between the treatment of primary and secondary victims and the same tests would be applied. He argues that the actual result would not differ much from the outcome of the decided authorities, as it would still be harder for those who are currently classed as secondary victims to satisfy the proximity stage of the test.

An alternative is to legislate in this area.

Proposals for reform

The Law Commission in its report, Liability for Psychiatric Illness, has recommended reform. It felt that there should be a statutory ‘duty of care’. It would leave the rule in Page vs Smith unaffected, but would otherwise require reasonable foreseeability of psychiatric illness as a result of death, injury or imperilment of a person with whom the plaintiff had a close tie of love and affection, regardless of proximity in terms of time and space. Furthermore, the plaintiff would no longer be required to perceive the accident with his own unaided senses. When proving proximity in terms of love and affection, there would be a fixed set of relationships covered by the statutory duty of care. This would include the following categories of relationship:

• Spouse • Parent; • Child; • Brother or sister (but not stepbrothers and sisters); • Cohabitees of at least two years standing.

Anyone not included on the list would have to prove close ties of love and affection. The statutory duty would not be imposed if it was not ‘just and reasonable’.

Economic loss. 

The law of negligence does not give the same level of protection to economic interests as it does to physical interests. There are only three types of situations where recovery is allowed in negligence for economic loss:

• Economic loss which is consequential upon physical damage;

• Negligent mis-statements;

• Other special relationships.

Economic loss which is consequential upon physical damage It is long established that economic loss as a result of physical injury is0 recoverable not only for the cost of repairing physical damage to people or property but also for ‘consequential’ loss of earnings or profits during convalescence or repair.

Much stricter controls apply in relation to ‘commercial losses’. Recovery was not allowed in Weller vs Foot and Mouth DRI even though the damage was foreseeable as damage was also foreseeable to ‘countless other enterprises’.

In Spartan Steel & Alloys vs Martin & Co (Contractors) Ltd (1973), the defendant negligently cut off electricity to the defendant’s factory. Damages for the cost of molten metal which was thrown away were recoverable, since it was consequential upon physical damage, but loss of profits while electricity was cut off were not recoverable as they were purely commercial profits.

This area was greatly affected by the application of the Anns test. In Junior Books vs Veitchi Co Ltd (1983), recovery was allowed for economic loss in a situation where liability had not been held to exist before. The defendants were sub-contractors and flooring specialists and had been nominated by the plaintiffs who had employed the main contractors.

The floor was negligently laid and the plaintiffs claimed loss of profits for the period when the floor had to be re-laid. Applying the Anns test it was held that the damage was recoverable. This promised to open up a whole new field of claims for economic loss and Junior Books has not been followed in subsequent cases, although it has not been formally overruled.

The House of Lords found it particularly significant that the sub-contractors had been nominated by the plaintiffs and it was felt that this was sufficient to create a relationship of ‘proximity’. This has become known as the ‘high water’ mark of economic loss.

The courts have since returned to the traditional test. For example, in Muirhead vs Industrial Tank Specialities Ltd (1985), the plaintiffs who had suffered loss because their lobsters had been killed due to defective motors on a tank could only recover the cost of the lobsters and repairs to the tank, they could not recover for loss of profits. This case has clear echos of Spartan Steel. This trend was confirmed by the case of Leigh and Sillivan vs Aliakmon Shipping (1986), which again held that it was not possible to recover economic losses arising from negligent misconduct.

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Duty of care and Duty situations in Tort and Negligence

Duty of care and Duty situations in Tort and Negligence

Thursday, September 20, 2018

The tests for determining the existence of a duty of care have changed.
Prior to 1932, there were several incidents of liability for negligence but there was no relating principle formulated which could be look upon as the basis of all of them. These were referred to as ‘duty situations’.

The ‘neighbor’ principle
The first attempt to create a rationale for all the discrete duty situations was made by Brett MR in Heaven v Pender (1883), but the most significant formulation of a general principle is that of, Lord Atkin in Donoghue v Stevenson (1932). This is notorious as the ‘neighbor principle’: You must take reasonable care to avoid acts or omissions which you can reasonably foresee are likely to injure your neighbor. Who, then, in law is my neighbor? 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 so affected when I am directing my mind to the acts or omissions which are called into question.

The ‘two stage’ test
The ‘neighbour principle’ is a test based on reasonable foresight and is indisputably too wide that It needed extra defining.
In the 1970s, there were efforts to extend it by defining it as a general principle. In Home Office v Dorset Yacht Co Ltd (1970), Lord Reid said ‘[the neighbor principle] ought to apply unless there is some justification or a valid explanation for its exclusion’. This led to Lord Wilberforce’s ‘two stage’ test in the case of Anns v Merton LBC (1977):
First, one has to ask whether ..... there is a satisfactory relationship of proximity …. in which case a prima facie duty arises.
Secondly, if the first question is answered positively, it is essential to consider whether there are any policy considerations which should to negative, or to lessen or limit the scope of the duty.

Lord Wilberforce’s importance on prima facie duties led to a large probable increase in the areas where a duty will be owed, particularly in the area of economic loss. See Junior Books Ltd v Veitchi Co Ltd (1983). Note how Lord Wilberforce uses this countenance ‘proximity’, he associates it to foreseeability, this approach has not been tailed in more recent cases and ‘proximity’ currently takes into account the type of situation and policy.

Criticism of the ‘two stage’ test
Criticisms of the test were as follows:
• Policy and proximity are customarily considered together;
• The test concealed the difference between misfeasance and non-feasance;
• The test tangled too rapid an extension to the tort of negligence;
• Judges detested the express consideration of policy.

The ‘three stage’ test
Lord Wilberforce’s general principle soon came in for heavy criticism.
This began with Lord Keith in Governors of the Peabody Donation Fund v Sir Lindsay Parkinson & Co Ltd (1985), when he said that, in addition to proximity, the court must decide whether it is ‘fair, just and reasonable’ to impose a duty of care.

The case of Murphy v Brentwood DC (1990), marked the death toll for the ‘two stage’ test by superseding Anns. Murphy talked of adopting an ‘incremental’ approach to determining the existence of a duty of care.
Following the case of Caparo Industries plc v Dickman (1990), there is now a ‘three stage’ test, with the following criteria being taken into account:
• Reasonable foreseeability;
• Proximity; and,
• Is it ‘fair, just and reasonable’ to impose a duty?

The response against the ‘two stage’ test was mainly focused on the fact that it created an enormous extension to the tort of negligence. The ‘incremental’ approach evades such an increase, instead, the tort of negligence is advanced by analogy with existing cases. Any novel type of situation would have to demonstrate that it is equivalent to an existing situation where a duty is owed.

Policy considerations.
Policy plays a vital role in defining the existence of a duty of care. It can be defined as the departure from well-known legal principle for pragmatic purposes. Cases such as Donoghue v Stevenson and Anns cogitate policy expressly, whereas the approach trailed in Caparo and Murphy is to impliedly consider policy and merge it into other considerations such as ‘proximity’ and whether it is ‘fair, just and reasonable’ to impose a duty.

What issues of policy are commonly raised?
• To allow an action would open the floodgates and expose the defendant to an unstipulated liability. The courts are always acute to limit liability to a determinate amount to a determinate class of people. For example, in Weller & Co v Foot and Mouth Disease Research Institute (1986), the plaintiffs were auctioneers who lost money on account of being unable to hold their auctions as a result of the defendant’s negligence in allowing the foot and mouth virus to escape, which lead to restrictions on the movement of cattle.
It was said by the court that their damage was ‘foreseeable’, but so was the damage to ‘countless other enterprises’. It would have been similarly foreseeable that cafés, newsagents, etc, in the market town would also lose money. The burden on one pair of defendant’s shoulders would be unbearable and policy had to act to limit liability.
• The imposition of a duty would prevent the defendant from performing his job appropriately

This leads to a class of what have been labeled ‘protected parties’ – persons who enjoy immunity from suit:
(a) Judges and witnesses in judicial proceedings enjoy immunity on grounds of ‘public policy’;
(b) Barristers – it was held in Rondel v Worsley (1969) that barristers were immune from civil action. It was further held in Saif Ali v Sydney Mitchell and Co (1980) that the immunity extended to pretrial work. In Kelley v Corston (1997), the defendant, who was a barrister advised the plaintiff to compromise a claim for ancillary relief in divorce proceedings. The court later confirmed the settlement as a consent order. The plaintiff subsequently sued the defendant on the basis of negligent advice. The court held that the plaintiff’s claim fell within the immunity extended to advocates;
(c) Solicitors enjoy immunity when acting as advocates;
(d) There is a public policy immunity for the carrying out of public duties by public bodies, unless that public body has assumed accountability to the individual. It is thought that, to impose a duty, in this situation, would inhibit with the way in which public bodies carry out their tasks.

The immunity originates with the case of Hill v Chief Constable of West Yorkshire (1989). The mother of the last victim of the Yorkshire Ripper sought to sue the police for negligence in failing to apprehend him earlier. There was found to be no special relationship between the police and the victim and consequently no duty could arise. It was felt that to impose a duty would be damaging to police operations. They would deploy their resources defensively on the basis of how they could best avoid civil liability, rather than on the basis of their professional judgment.

This immunity was held to apply in the case of, Osman v Ferguson (1992), even where it was well-known to the police that the plaintiff was being harassed by an identified individual. A school teacher had become obsessed with one of his pupils. He had threatened to do a ‘thing like the Hungerford massacre’ because of the obsession. Complaints had been made by the plaintiff’s family to the police. The same individual eventually shot and injured the plaintiff and also killed his father but there was no duty on grounds of public policy immunity.

Nonetheless, the police may be liable where there is a special relationship between the police and an informant (Swinney v Chief Constable of Northumbria Police (1996)). The police do not have a blanket immunity, there are other considerations of public policy which also carry weight. Hirst LJ gave examples such as the need to guard springs of information, to protect informers, and to inspire them to come forward without an undue fear of the risk that their identity will become identified to the suspect or to his associates. The facts of the case were that the plaintiff passed on to the police certain information concerning the unlawful killing of a police officer.

The suspect was known to be violent. The informant requested that contact with her be made in confidence. The document containing the material supplied together with the informant’s name was left in an unattended police car. The vehicle was broken into and the suspect obtained the document. It was arguable that a special relationship existed.
The House of Lords held that, a policewoman who alleged that the defendant commissioner had been negligent in failing to prevent her victimization by fellow officers had an arguable case in Waters v Commissioner of Police of the Metropolis (2000). The claimant had complained to her superior of a sexual assault by a fellow officer.
Subsequently, her fellow officers reviled her for having made the complaint. The public policy immunity did not apply. The claimant was not suing as a member of the public. Lord Halton said it was in the public interest to allow the claim; otherwise, citizens would be discouraged from joining the police.

The immunity also did not arise in Welton v North Cornwall DC (1996).
An environmental health officer, acting on behalf of a local authority, negligently required the owner of food premises to undertake extensive works to conform with the Food Act 1990. It was argued that the officer exercised a police or quasi-police function and there ought to be an immunity. This was rejected as the officer had assumed responsibility and hence a duty of care was owed.

The same public policy immunity for the discharge of public duties, unless responsibility had exceptionally been assumed to a particular defendant, also applies to the Crown Prosecution Service (Elguzouli- Daf v Commissioner of Police of the Metropolis (1994)) and the fire brigade (Church of Jesus Christ of Latter Day Saints (Great Britain) v Yorkshire Fire and Civil Defence Authority (1996); John Munroe (Acrylics) Ltd v London Fire and Civil Defence Authority (1996); Nelson Holdings Ltd v British Gas plc (1996)). However, a distinction was made between a positive act of negligence for which there would be liability on the part of the fire brigade and a negligent omission for which there would be no liability in Capital Counties plc v Hampshire CC (1997). Latter Days Saints and Munroe were preferred in Nelson.

The public policy immunities have recently been scrutinized by the European Court of Human-Rights in Osman v UK (1998). A challenge was made under Arts 2, 6 and 8 of the “European-Convention-on-Human-Rights”. The case arose out of the facts of Osman v Ferguson (see above). Article 2 protects right to life; Art 6 protects the right to justice and Art 8 provides for respect for private and family life. There was held to be no breach of Art 2 as the State was not in breach of its positive responsibility to take precautionary actions to guard an individual whose life was at risk from another. The police did not discern or should have known that there was a threat to life. For parallel reasons, there was no breach of Art 8.

There was a breach of Art 6(1). The exclusionary rule which prohibited a full hearing of the applicant’s case laid down in Hill constituted a lopsided interference with a person’s right to have a determination on the merits of an action and prevented the court from considering competing interests.
• It is against public policy to claim that you should not have been born (McKay v Essex AHA(1982))
• The courts will not impose a duty where there is an alternate system of compensation See, Hill v Chief Constable of West Yorkshire, where compensation was payable under the Criminal Injuries Compensation Scheme. However, the existence of an alternative remedy will not exclude liability, if the elements of foreseeability and proximity are present (Langley v Dray (1998)).
• Constitutional relationship flanked by Parliament and the courts. The courts are reluctant to impose a duty where none existed before, as they see this as the constitutional role of Parliament.

Duty in fact
The issue of the existence of a duty will only arise in novel cases or where it is required to overrule an existing precedent against liability. This is referred to as a ‘notional duty’ and looks at the question from an abstracted level.
In most cases, it will be a question of fact, whether the defendant owes the plaintiff a duty of care on the specific facts of the case. This is referred to as a ‘duty in fact’. The existence of that particular duty is not in issue, what is in issue is whether a duty is owed in that particular case. For example, Bourhill v Young (1942), where court held that the plaintiff was not foreseeable.

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5 Five Questions You Must Ask Before Initiating a Clinical Negligence Claim

5 Five Questions You Must Ask Before Initiating a Clinical Negligence Claim

Monday, June 12, 2017

Medical professionals work in hard environments, and they work, to excessive requirements and deliver care properly. However, there are instances whilst your care may additionally drop beneath that standard, and also you go through a worse final results due to this negligence.

If you're thinking about bringing a claim for medical negligence you is probably feeling misplaced, unsure of wherein to start, or even unsure if you want to deliver a claim. This article discusses the 5 key questions you have to ask your self earlier than beginning a case for Clinical Negligence, to understand if you are prepared to accomplish that.

Are you organized to go to Court if needed?

Most Clinical Negligence claims will settle out of courtroom. Statistically speaking fewer than 5% of cases bring about a full trial at Court. However, it isn't unusual for Court complaints to begin.

Regardless of whether or not you watched you may grow to be in Court or settle earlier than the trial date comes around, you have to constantly mentally prepare your self to attend Court. You should also always behavior your self and your claim with the thought that the whole thing you assert or do, approximately your case, can be visible by using a Judge.

Ask yourself are you organized to go to Court? Are you inclined to move beneath oath and deliver witness evidence in Court? Are you ready to face earlier than a Judge and solution their questions? If now not, then that doesn't imply you have to no longer start a claim, but you need to make your solicitor privy to this and observe their recommendation.

Are you equipped to reply sensitive questions about your medical remedy?

Like the above, this question offers along with your personal comfort stages and what you are or aren't willing to do.

Your solicitor have to play devil's endorse at times to predict what the Defendant's arguments may be. Which approach that there will be times when they will ask you uncomfortable questions, or questions which could make you feel like they are against you. They are doing this so that they can be as organized as viable to counteract the Defendant's arguments.

For instance, if your solicitor expects the Defendant's to argue which you did no longer increase your issues approximately your treatment on your medical doctor, then they'll ask you questions together with "why did you wait six months to raise your concerns?" "Why did you still permit Dr X to deal with you in case you didn't consider them?" "Why did you now not get a 2nd opinion?" "Why did you wait till X, Y, Z befell before performing?" They aren't accusing you of bad judgement or terrible behaviour; they may be seeking to wreck the Defendant's argument.

Are you fully recovered?

It is high-quality to be fully recovered before beginning a claim as it will make your injury easier to cost, aka put a financial discern for your injury/not on time restoration and many others. It is also typically regularly occurring that bringing a declare can be traumatic for a few, and in case you experience which you are probably to locate bringing a claim annoying then stress isn't always going to help your health. It may be on your high-quality pursuits to attend some months or weeks until your health has advanced sufficient for you if you want to manage.

You have three years to carry a declare; this time restriction begins from the date you realised that you suffered negligence. This is the Date of Knowledge, and it method that there may be time for you to recover as an awful lot as feasible before beginning a claim.

While it is not recommended to attend till the 3-yr deadline is sort of up. However, it is wise to make sure you have got recovered completely, or if no longer completely then to a high degree, earlier than bringing a declare. If you are making plans on the use of a solicitor to carry your clinical negligence claim, then it'd be reasonable to technique them at least six months earlier than the three-yr closing date has run out, for them to evaluate your case.

Are you in time to bring a claim?

Following on from the above, you have to ensure which you are in time to convey a declare. As said above, you have 3 years from the date you realised you had suffered negligence to accomplish that. If you're out of time, then it is not likely that you'll be capable of deliver a declare, because it might be time barred.

Although, in a few first-rate occasions the Courts may also will let you move beforehand even in case you are out of time.

What funding options are to be had?

Most scientific negligence claims may be taken on by means of a solicitor beneath a No Win No Fee Agreement. Under this kind of settlement in case you are a success a part of your repayment will go to pay your solicitor's felony fees. This is confined to 25% of your repayment. By law, a solicitor cannot fee more than 25% of your compensation. However, you will be capable of negotiate a decrease percent together with your solicitor.

Under a No Win No Fee Agreement in case you aren't a hit you may now not pay any legal prices. But you can nonetheless be accountable for disbursements that your solicitor has needed to pay to your behalf. Disbursements encompass a charge to get your clinical statistics, the clinical expert's fee, Court costs, etc. Your solicitor have to get coverage to shield you from having to pay those disbursements if you aren't a hit.

Other investment options are to be had; you could fund your declare using pre-current prison coverage on your property & contents insurance or your automobile insurance. You need to test your insurance rules to peer if you have this type of coverage. There are advantages to the usage of pre-existing coverage policies to pay for claims, as some coverage providers will can help you hold 100% of your compensation. There are downsides, however, the ones being that it is unlikely that you will be capable of select your solicitor, you may use a solicitor chosen by means of the coverage company, and you'll cope with them thru smartphone and e mail, it's miles not likely that you will ever meet them head to head.

Conclusion

You ought to cautiously recall all the above questions before you method a solicitor approximately your scientific negligence declare. Bringing a declare is an extended manner and may be laborious at times. Some will discover the procedure traumatic and may battle with it, but in case you supply the procedure due consideration, coach a solicitor and follow their recommendation then this could make things plenty easier for you.

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Suffering An Injury From A Hit & Run - What Now?

Suffering An Injury From A Hit & Run - What Now?

Monday, March 13, 2017

Whether you’re a pedestrian walking down a busy city street or an automobile driver traveling an empty country road on your way to work, getting involved in an accident is terrifying. When you’re not at fault, but you’re injured and the other party flees the scene, the pain and confusion can be awful. You’re probably wondering what you should do next. What you shouldn’t be worried about is liability.
If you’re the victim, then you should immediately consult a personal injury attorney. If you haven’t already done that, here’s what you need to know!

What to do immediately after the hit and run accident

When you’re the victim in a hit and run, it’s not really any different than if you’d been hit by an uninsured driver--a situation that can be equally terrifying, and similarly leaves even responsible drivers prone to fits of emotion. When the accident occurs, take care of yourself first and foremost. Here are the things you should do if you’re able:

1. Take a breath and assess the situation. Even though this is a horrible situation, a deep breath and calm demeanor can be your best friends. Since you can’t exchange insurance information with the other driver, your first order of business is to call the police.

2. Let the police know you plan to enlist the help of a lawyer. When the other driver flees the scene, you don’t need to worry as much about mistakenly being found at fault, but you should still limit the information you provide to the authorities. All they really need to know are the basics: the make and model of the other vehicle, and the extent of your own injuries. If they offer to call for medical assistance and you haven’t yet done it yourself, then let them help.

3. Document the damage. After the hit and run accident, don’t just think of photographing the damage to your automobile. Make sure you think of yourself, too! The injuries you sustained should be photographed as quickly as possible--preferably both before and after treatment. Thereafter, you should photograph the injuries with each day that passes until you’re fully healed.

4. Keep a journal. Grab yourself a three-ring binder and fill it with paper and a folder. Use the folder to gather all the evidence you’ve procured. Use it to store photographs of your vehicle and injuries. Keep track of any related bills, medical and otherwise.

On top of that, start keeping tabs on your own thoughts and feelings during this ordeal. What you think and feel during a period of emotional turmoil can be especially beneficial. This opens you up to additional compensation, and is the best case scenario!

5. Call your personal injury lawyer. While you’re collecting all of this information, reach out to personal injury attorneys. Free consultations are often provided in order to help potential clients get an idea of a lawyer’s background and level of experience (without any obligation to hire), and they can help you find a lawyer with whom you personally connect.

Although you’ll want to spend a little bit of time researching, make sure you don’t wait too long. The faster you get yourself legal help, the faster you’ll get answers when questions arise--and the faster you’ll get compensated for your physical, emotional, and financial tolls.

If you’re unable to do any of these things because you’re injured, then refer a family member or friend to complete the tasks for you. It’s important you stay protected while your lawyer, insurance provider, and the authorities all collaborate to figure out the truth in what happened. Of course, it’s your lawyer whose goal it is to get you the best possible outcome.

What your insurance will do

Although the purpose of insurance is ultimately to help you when accidents happen, don’t forget that insurance providers will almost always do whatever it takes to keep you from getting financial compensation, especially when the other party’s insurance doesn’t exist or can’t pay in full.

In the case of a hit and run, the other party’s insurance provider doesn’t exist. The best case scenario for you is that your policy has uninsured motorist coverage. This is most often used when the other driver is at fault and doesn’t have insurance, but it is also used when hit and run accidents occur. A personal injury attorney will ensure that your insurance provider is granted access to the information it needs and only the information it needs. If your insurance providers asks you to sign a document or provide information, wait until you have consulted with your counsel.

That way, you won’t accidentally grant your insurance provider information that could damage your claim or reduce the amount of financial compensation you deserve.
When you’re injured in a hit and run, the main thing is don’t worry! Help is available to you every step of the way, and you have the means to recover your losses.

Post by: Randall F. Rogersa personal injury lawyer, practices in Marietta, outside of Atlanta, Georgia.

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Slip and Fall is a Real Workplace Danger

Slip and Fall is a Real Workplace Danger

Thursday, May 05, 2016

Slips, trips, and falls are the second most common type of workplace injury. According to a recent study by Travelers Indemnity Company, roughly 25,000 such accidents occur every single day in the United States.

They can happen anywhere and are not unique to any particular business. If you want to stay safe in the workplace or out on the town, the key is knowing some of the most common places where these accidents tend to occur.

Slippery Surfaces:

These surfaces can include glossy tile, hardwood floors, polished stone and other types of slick flooring or walkway.

Uneven or Damaged Walking Surfaces:

When holes or cracks damage sidewalks, this can potentially cause a dangerous situation. Unmaintained or broken walking surfaces create tripping hazards over time.

Wet Surfaces:

Whether surfaces were just cleaned, or are wet because of a spill or a leak, this can create a grave danger. Always be on the lookout for wet surfaces to avoid an injury that could put you in the emergency room.

Staying Safe Is Not Just Your Responsibility

While it is important to remain aware of your surroundings, employers and property owners are expected to maintain a safe environment.

For instance, what if you are walking past a restaurant right after a worker is finished hosing down the sidewalk. There are no signs up to indicate the surface is wet and slippery. If this causes you to slip and fall, it could be a result of the restaurant’s negligence.

What Should You Expect From the Public Places You Visit?

Whether you are showing up for work or visiting a public place on your free time, there’s a certain level of safety you should expect. Those in charge of the sites you visit should be staying on top of a few basic procedures:

• Regular walk-throughs to inspect the property and address any potential hazards.
• Ensure walkways are adequately lit and marked.
• Routine maintenance of flooring surfaces.
• Slip-resistant treatments used to clean floors.
• Ready access to cleanup supplies.
• Prompt cleanup of spills and proper signage labeling wet floors or areas under construction.

What Should You Do if You Are Injured?

At Work

If you suffer a trip, slip or fall at work and think you may need medical attention, it’s important to notify someone right away. Otherwise, even if the fall seems minor, it’s important to notify your supervisor immediately and ask to fill out an incident report.

It is not uncommon for pain to slowly get worse over a period following an injury. Your employer may be obligated to compensate you for missed work time and medical bills if care is needed. However, if there’s no record of the incident on file, you could end up footing the bill.

Out in Public

If you slip and fall while at a public location, or on someone else’s private property, it is important to file an accident report as soon as possible. The report should include details about how the fall happened and who may have witnessed the incident. Try to note if there were any hidden hazards on the property that may have contributed to the fall. If it is possible, try to take some pictures of the scene of the fall. It could help you if you decide to seek compensation.

When writing out what happened, try to include the following information:

• What caused the fall
• Time, day and location of the incident
• Witness list
• Physical injuries

When Should You Consider Hiring an Attorney?

This is a hard decision for many people who suffer slip and fall injuries. First of all, the incident can be very embarrassing, especially if it happens around large crowds. There’s also the misconception that these injuries are the result of carelessness on the part of the injured person.

If you believe a slip and fall injury may have been the result of negligence on someone else’s part, consulting with a skilled personal injury attorney is the smart choice. Come prepared with all the relevant facts and your report of the injury.

The lawyer will speak with you about what happened, carefully review your reports and determine whether or not you should pursue legal action. The owner of the property may be responsible for paying out a settlement, which would include:

• Medical expenses related to the fall
• Lost earnings and future lost earnings as a result of the injury
• Future medical expenses
• Pain and suffering

Don’t be afraid to consult with an attorney if you think unsafe conditions at work caused a slip and fall accident, or out in public. Otherwise, the expenses could put you under extreme financial and physical hardship.

About the Author
Freddy Saavedra is a personal injury attorney with Alex & Associates. The law firm serves residents in the Phoenix, Arizona area. He has handled thousands of cases related to personal injury and disability.

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Is Vicarious Liability- Employers Liability for the torts of their employees ?

Is Vicarious Liability- Employers Liability for the torts of their employees ?

Tuesday, December 09, 2014

Employers are vicariously liable for the torts of their employees that are committed during the course of employment. According to Michael A. Jones, Textbook 011 Torts, 2000, p379, several reasons have been advanced as a justification for the imposition of vicarious liability:
(I) The master has the 'deepest pockets'. The wealth ofa defendant, or the fact that he has access to resources via insurance, has in some cases had an unconscious influence on the development of legal principles.
(2) Vicarious liability encourages accident prevention by giving an employer a financial interest in encouraging his employees to take care for the safety of others.
(3) As the employer makes a profit from the activities of his employees, he should also bear any losses that those activities cause.

Liability
Three questions must be asked in order to establish liability:
(I) Was a tort committed?
(2) Was the tort feasor an employee?
(3) Was the employee acting in the course of employment when the tort was committed?

Employers And Independent Contractor

Employers/masters will only be liable for the torts of their employees/servants. They will not usually be liable for the torts of their independent contractors (see below). It is therefore necessary to establish the status of the tortfeasor.
The intention of the parties is not necessarily conclusive, take, for example:
• Ferguson v Dawson Partners [1976]3 All ER 817 - a building worker who at the time of hiring was expressed to be a 'labour only subcontractor' was held to be an employee because in all other respects he was treated as an employee. The statement had been made for tax and national insurance purposes.
• Massey v Crown Life Insurance [1978] 2 All ER 576 - there was a detailed written contract and the parties' intention prevailed.
Various tests for establishing an individual's employment status have been developed through the cases:

(a) The control test
This was the traditional test. In Collins v Hertfordshire CC [1947] 1 All ER 633, H.ilbery J said: "The distinction between a contract for services and a contract of service can be summarised in this way: In one case the master can order or require what is to be done, while in the other case he can not only order or require what is to be done, but how it shaJJ be done."
But in Cassidy v Ministry of Health [1951] I All ER 574, Sornervell U pointed out that this test is not universally correct. There are many contracts of service where the master cannot control the manner in which the work is to be done, as in the case of a captain of a ship. He went on to say: "One perhaps cannot get much beyond this 'Was the contract a contract of sen' ice within the meaning which an ordinary person would give under the words"!"

(b) The nature of the employment test
One accepted view is that people who have a 'contract of service' (an employment contract) are employees, but people who have a 'contract for services' (a service contract) are independent contractors (Ready Mixed Concrete v Minister of Pensions and NI [1968]1 All ER 433).

(c) The 'integral part of the business test
This test was proposed by Lord Denning in Stevenson, Jordan and Harrison Ltd v McDonald and Evans [1952] I TLR 10 : 'It is often easy to recognise a contract of service when you see it, but difficult to say wherein the difference lies. A ship's master, a chauffeur, and a reporter on the staff of a newspaper are all employed under a contract of service; but a ship's pilot, a taxi-man, and a newspaper contributor are employed under a contract for sen' ices. One feature which seems to run through the instances is that, under a contract of service, a man is employed as part of the business; whereas, under a contract for services, his work, although done for the business, is not integrated into it but is only accessory to it.'

(d) Allocation. of financial risk/the economic reality test/multiple test
Lord Wright suggested a complex test involving
(i) control;
(ii) ownership of the tools;
(iii) chance of profit;
(iv) risk of loss (Montreal v Montreal Locomotive Works [1947]1 DLR 161).

In a later case, Cooke J referred to these fuctors and said that the fundamental test was: 'Is the person who has engaged himself to perform these services performing them as a person in business on his own account'?' If the answer is yes, it is a contract for services; if no, it is a contract of service. There is no exhaustive list of considerations relevant to determining this question, and no strict rules about the relative weight the various considerations should carry in a particular case. Factors which could be of importance were: (i) whether the person hires his own helpers; and (ii) what degree of responsibility for investment and management he has (Market Investigations v Minister of Social Security [1968] 3 All ER 732).

These factors were considered to be significant in:

• Ready Mixed Concrete v Minister of Pensions and NI [1968]1 All ER 433- 'owner-drivers' who delivered concrete in vehicles purchased on HP from an associated company, painted in company colours and which could not be used for private purposes or other baulage business, were employed under a contract of carriage than of service. Ownership of the assets (the vehicle), the chance of profit and the risk of loss were the driver's. These factors were inconsistent with a master-servant relationship.
No exhaustive list of considerations relevant to determining this question, and no strict rules about the relative weight the various considerations should carry in a particular case. Factors which could be of importance were: (i) whether the person hires his own helpers; and (ii) what degree of responsibility for investment and management he has (Market Investigations v Minister of Social Security [1968] 3 All ER 732).

These factors were considered to be significant in: Ready Mixed Concrete v Minister of Pensions and NI [1968]1 All ER 433- 'owner-drivers' who delivered concrete in vehicles purchased on HP from an associated company, painted in company colours and which could not be used for private purposes or other baulage business, were employed under a contract of carriage than of service. Ownership of the assets (the vehicle), the chance of profit and the risk of loss were the driver's. These factors were inconsistent with a master-servant relationship.

Lending an employee
I f an employer lends an employee to another employer on a temporary basis, as a general rule it will be difficult for the first employer to shift responsibility to tbe temporary employer.
See: Mersey Docks & Harbour Board v Coggins Ltd [1946] 2 All ER 345 - the Board was liable for the negligence of a crane driver hired, along with a crane, to Coggins. The contract provided that the driver was to be the servant of Coggins but the Board continued to pay hi s wage and had the power to dismiss him. Coggins bad immediate control over what the driver should do, but no power over how the crane should be operated. The HL held that the driver remained the servant of the Board.

The Course Of Employment
An employer will only be liable for torts which the employee commits in the course of employment. There is no single test for this, although Parke B famously stated in Joel v Morison (1834) 6 C&P 501 at 503, that the servant must be engaged on his master's business, not 'on a frolic of his own'.
An employer will usually be liable for (a) wrongful acts which are actually authorised by him, and for (b) acts which are wrongful ways of doing something authorised by the employer, even if the acts themselves were expressly forbidden by the employer (Salmond & Heuston on the Law of Torts, 1996, p443). Liability for criminal acts will also be considered.

Authorised acts Wrongful modes of doing authorised ads

If an employer expressly authorises an unlawful act he or she will be primarily liable.
In the following cases it was held that the employer was vicariously liable for torts of the employee:
• Limpus v London General Omnibus Co (1862) I H&C 526 - bus drivers racing, despite a prohibition, call sed a collision.
• Bayley v Manchester, Sheffield and Lincolnshire Railway Co (1873) LR 8 CP 148 - a porter, believing a passenger was on the wrong train, violently pulled him off, causing injury.
• Century Insurance Co v Northern Ireland Transport Board [1942]1 All ER 491 - a petrol tanker driver, smoking a cigarette threw away a match, causing an explosion.
• Rose v Plenty [1976] I All ER 97 - a milkman, contrary to express instructions, employed a 13-year-old assistant, injured by the milkman's negligent driving. The act here was done for the employers' business.

In the following cases it was held that the employer was not vicariously liable:
• Beard v London General Omnibus Co [1900] 2 QB 530 - a bus conductor drove a bus injuring a pedestrian.
• Twine v Beall's Express Ltd [1946] I All ER 202 - a hitchhiker had been given a lift contrary to express instructions and was fatally injured. Lord Greene MR said that the servant was doing something totally outside the scope of his employment, namely, giving a lift to a person who had no right whatsoever to be there.
• Hilton v Thomas BIII1011 (Rhodes) Ltd [1961]1 All ER 74 - workmen drove seven or eight miles for tea, immediately after finishing their lunch in a pub. The van overturned and a passenger was killed

Criminal ads

An employer will not usually be liable for the criminal acts of employees. For example:
• Keppel Bus Co v Ahmad [1974]2 All ER 700 - a passenger who objected to a bus conductor's treatment of another passenger and then insulting language was assaulted by tbe conductor. The employer was held not liable by the Privy Council. Lord Kilbrandon said that insults to passengers are not part of the due performance of a conductor's duty.
• ST v N. Yorkshire CC [1999]lRLR 98 - a deputy headmaster of a special school, responsible for caring for a handicapped teenager on a foreign holiday, sexually assaulted him. Butler-Sloss U said that this was not an unauthorised mode of carrying out a teacher's duties on behalf of his employer. Rather it was a negation of the duty of the council to look after children for whom it was responsible.

However, if the employee perfurms their duties in a criminal manner, an employer may be liable. See:
• Morris V Martin Ltd [1965] 2 All ER 725 - a fur coat sent to cleaners was stolen by the employee whose job it was to clean the coat. TIle cleaners were I iabl e for the theft.
• Nahhas v Pier House Management (1984) 270 EO 328 - a porter entrusted with keys by a tenant, entered her flat and stole jewellery. The employers were liable for negligently employing a 'professional thief' and breaching a duty to protect the plaintiff's flat.
• Vasey v Surrey Free Inns [1996] PIQR P373 - the plaintiff was attacked by two doormen and a manager employed by the defendant after he had kicked a door, breaking glass. The CA held the defendants vicariously liable because the attack was a reaction to the damage to tbe door for tbe protection of the employer's property and was not a private quarrel unrelated to the employer's duties.

The Indemnity Principle
There is a tenn impl ied at common law into contracts of employment that all employee will exercise all reasonable care and skill during the course of employment. An employee who is negligent is in breach of such a tern} and the employer who bas been held vicariously I iable for the tort may seek an indemnity from the employee to make good the loss.
- Lister v Rainford Ice [1957] I All ER 125. A father was knocked down by his son, who was employed by Romford Ice, while backi ng hi s lorry ina yard. The employers were vicariously liable for the son's negligence and their insurers met the father's claim. The insurers sued the son in the company's name, exercising their right of subrogation under the contract of insurance. Bya majority, the House of Lords held that the son was liable to indemnify the employer and consequently the insurers.

This case lead to controversy about insurers forcing employers to sue employees, which would lead to poor industrial relations. Employers' liability insurers later entered into a 'gentleman's agreement' not to pursue such claims unless there was evidence of collusion or wilful misconduct (See further: Gardiner (1959) 22 MLR 552; Hepple & Matthews, Tort: Cases and Materials, 1991, pS81).

Liability For Independent Contractors

In Alcock v Wraith [1991]59 BLR 16, Neill U stated: "where someone employs an independent contractor to do work on his behalf he is not in the ordinary way responsible for any tort committed by the contractor in the course of the execution of tbe work.

The main exceptions to the principle fall into the following categories:
(a) Cases where the employer is under some statutory duty which he cannot delegate.
(b) Cases involving the withdrawal of support from neighbouring land.
(c) Cases involving the escape of fire.
(d) Cases involving the escape of substances, such as explosives, which have been brought on to the land and which are likely to do damage if they escape; liability will attach under the rule in Rylands v Fletcher (1868) LR 3 HL330.
(e) Cases involving operations on the highway which may cause danger to persons using the highway.
(t) Cases involving non-delegable dillies of an employer for the safety of his employees.
(g) Cases involving extra-hazardous acts."

Neill LJ then examined whether there was a further exception which could be relied upon in cases of nuisance. He referred to Matania v National Provincial Bank [1936] 2 All ER 633, where the Court of Appeal was concerned with a claim for damages for nuisance caused by dust and noise during building operations; Slesser LJ concluded that the work did constitute a hazardous operation within the exception to the general rule. Neill LJ then stated that both the general rule and the exceptions apply whether the action is framed in negl igence or nuisance. Furthermore, he was not aware of any different approach being adopted in an action for trespass.

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Introduction To The Nature Of Contributory Negligence

Introduction To The Nature Of Contributory Negligence

Tuesday, August 26, 2014

Even though a plaintiff may have suffered damage or loss attributable to another’s negligence, the plaintiff’s claim to damages may be reduced or eliminated if the plaintiff has failed to take reasonable care for his or her own safety, and his or her own negligence has contributed to that loss. In other words, where the plaintiff’s own negligence contributes to his or her injury, his or her right to fully recover is for that loss may be correspondingly affected.

The definition of contributory negligence was re-stated by the Supreme Court of Canada in Bow Valley Jusky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210 where the Court held: when contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove to the satisfaction of the jury that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury.
For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiffs claim, the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.

Contributory Negligence In Contrast with Failure to Mitigate

In order to better understand contributory negligence, it is useful to compare and contrast it with two similar but distinct legal principles which may also serve to defeat or reduce a plaintiff’s claim based on his or her own conduct:
(1) a plaintiff’s duty to mitigate loss; and
(2) the doctrine of volenti non fit injuria. (It is not within the scope of this paper to examine these principles in any detail. Rather, they will be addressed in a summary fashion simply to highlight the differences between them and the defence of contributory negligence ) 

Duty to Mitigate

A plaintiff’s duty to mitigate is derived from the general proposition that a plaintiff cannot recover from the defendant damages which he himself could have avoided by taking reasonable steps See Janiak v. Ippolito (1985), 16 D.L.R. (4th) 1 (S.C.C.). A plaintiff’s duty to mitigate is therefore, rooted in the law of damages, and is principally concerned with the reasonableness of the plaintiff’s conduct

After the event causing the loss. If a plaintiff does not take reasonable steps to mitigate his or her losses following that event, the amount of damages to which he or she would otherwise be entitled will be reduced by the amount attributable to that failure. In contrast, the defence of contributory negligence is concerned with the role of the plaintiff in the events leading up to and causing the loss so as to determine whether the plaintiff must bear some responsibility for the loss. Therefore, the principal distinction between contributory negligence and a failure to mitigate is that the former presents a question of relative responsibility for a loss, while the latter is concerned with the manner in which a plaintiff has managed and limited his or her loss.

Volenti Non Fit Injuria

The doctrine of volenti non fit injuria, which is applicable only in limited situations, provides that a plaintiff may not recover for any loss for which he or she has voluntarily assumed the risk of injury. While the defences of both contributory negligence and volenti are based on the plaintiff’s conduct, in the former, the plaintiff must be negligent and thereby contribute to his or her injury. The latter provides a complete defence; the plaintiff is barred from recovery on the basis that he or she voluntarily and knowingly accepted the risk of being injured by the defendant’s conduct.

The Test for Contributory Negligence

In Bow Valley, supra, the Supreme Court of Canada adopted the test for contributory negligence that was set out by Denning L.J. in Jones v. Livox Quarries, [1952] 2 Q.B. 608 (Eng. C.A.) as follows:
Although contributory negligence does not depend on a duty of care, it does depend on foreseeability. Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself; and in his reckonings he must take into account the possibility of others being careless.

Despite the fact that contributory negligence does not require a duty of care, proving contributory negligence against a plaintiff is much like establishing negligence against a defendant. The standard of care which the plaintiff must meet is no different than that of a reasonable person acting to protect his or her own safety or property  See forexample Alberta Wheat Pool v. Northwest Pile Driving Ltd., 2000 BCCA 505, at para. 21.

Furthermore, a plaintiff’s contributory negligence must be causally related to the plaintiff’s loss, and the defendant must prove that the plaintiff’s negligence caused or contributed to that loss. If the plaintiff’s injury is outside the scope of the foreseeable risk to which he or she is exposed by his or her actions, the plaintiff’s conduct will not be considered the proximate cause of the loss.

The Practical Effect of Contributory Negligence

Historically, contributory negligence was a complete defence to a plaintiff’s claim.
Once the defendant was able to establish that the plaintiff contributed to his or her own loss, the plaintiff would be denied any means of recovery. That traditional contributory negligence bar has been replaced by provincial legislation which apportions liability between negligent defendants and contributorily negligent plaintiffs.4 While the provincial statutes have many similarities, some differ significantly as to whether defendants will be jointly and severally liable, as opposed to severally liable, where a plaintiff is contributorily negligent. A good example of the similarities and differences between the provincial statutes can be seen from a comparison of relevant sections of the Ontario and British Columbia legislation.

This legislation provides that when there are two or more tortfeasors, and a plaintiff has also been found negligent, the proper approach to apportionment is to first reduce the extent of the recoverable damages in proportion with the plaintiff's negligence, and then to apportion the remaining damages between the defendants, in accordance with their fault. Despite any contributory negligence on the part of the plaintiff, the defendants will be jointly and severally liable for the damages awarded to the plaintiff.

A simple example is helpful in understanding the differences between the two statutory schemes: A plaintiff is found 30% contributorily negligent for an accident. Defendant A (an insured corporation) is found 20% at fault, and Defendant B (an individual) is found 50% at fault. Under the B.C. statute, the plaintiff can only seek 20% of his judgment from Defendant A, the insured corporation, and must seek the remaining 50% of his judgment from Defendant B, the individual. If Defendant B has no funds from which to pay his 50% of the judgment, the plaintiff is left with no recourse.

Under the Ontario legislation, however, the plaintiff would be free to collect the full 70% of the judgment from defendant A, the insured corporation, even though defendant A was only 20% at fault.

Both legislative schemes provide for contribution and indemnity among defendants in cases of joint and several liability. This permits any defendant that is called upon by the plaintiff to pay more than its proportionate share of the loss to seek reimbursement from the other defendants for their proportionate share.

The Basis for Apportionment of Fault

See generally, Cempel v. Harrison Hot Springs Hotel Ltd., [1998] 6 WWR 233 (B.C.C.A.); Snushall v. Fulsang (2005), 78 O.R. (3d) 142 (C.A.); Alberta Wheat Pool v. Northwest Pile Driving Ltd.
Apportioning fault for contributory negligence is not as straightforward as allocating responsibility among several parties, all of who have played a role in causing a loss. The court's task is to assess the respective blameworthiness of the parties, rather than the extent to which the loss may be said to have been caused by the conduct of each.

This is because the degree of a defendant’s negligence in causing an accident bears no relationship to how much of the damage might have been prevented had the plaintiff not been contributorily negligent. Since the extent to which a defendant and the extent to which a plaintiff “caused” the plaintiff’s loss are not related, “causation” cannot be the basis of the allocation of responsibility between them.

A fault or blameworthiness analysis evaluates the parties' conduct in the circumstances, and the extent or degree to which it may be said to depart from the standard of reasonable care. The question that affects apportionment, therefore, is the weight of fault that should be attributed to each of the parties, not the weight of causation. As stated by the British Columbia Court of Appeal in Cempel:

In the apportionment of fault there must be an assessment of the degree of the risk created by each of the parties, including a consideration of the effect and potential effect of occurrences within the risk, and including any increment in the risk brought about by their conduct after the initial risk was created. The fault should then be apportioned on the basis of the nature and extent of the departure from the respective standards of care of each of the parties.


Examples of Reductions in Damages for Contributory Negligence.

As noted above, provincial legislation generally provides that where it is impossible to establish different degrees of fault, liability will be apportioned equally.
Where evidence permits the court to apportion fault, the extent to which, a plaintiff’s damages should be reduced for contributory negligence must be determined based upon the evidence. While apportionment will depend on the facts of each particular case, the following overview will give an example of reductions that have been imposed by courts in various types of cases.

Motor Vehicle.

Plaintiffs who are impaired drivers or willing passengers with impaired drivers, and are injured in motor vehicle accidents drivers may be found to be 25% to 45% contributorily negligent.
See, for example, Neufeld v. Foster, [1999] B.C.J. No. 764 (Q.L.)(S.C.); Walsh v. Gougeon, [1989] B.C.J. No. 1446 (Q.L.)(SC); Nielson v. Brunet Estate (1994), 95 B.C.L.R. (2d) 303 (C.A.); Court v. Schwartz, [1994] B.C.J. No. 2164 (Q.L.)(SC).

Plaintiffs involved in motor vehicle accidents who fail to wear seatbelts may be found to be 15%-25% contributorily negligent (but only where the defendant can prove that proper use of a seatbelt would have prevented or lessened the injury) See, for example, Snushall v. Fulsang.

Motorcyclists and bicyclists who fail to wear helmets may be found to be 10%-15% contributorily negligent (where the defendant can prove that proper use of a helmet would have reduced the injury) See, for example, Lum v. McLintock (1997), 45 B.C.L.R. (3d) 303 (S.C.); Niitamo v. ICBC, 2003 BCSC 608.

Aviation.

A plaintiff pilot whose airplane hit thin unmarked lighting strike wires in the course of landing was held to be 50% contributorily negligent ie in Campbell Estate v. Calgary Power Ltd. (1988), 62 Alta.L.R. (2d) 253 (C.A.).

In Duemler v. Air Canada (1980), 109 DLR (3d) 402 (Alta.C.A.). Plaintiffs who boarded the wrong aircraft despite the fact that employees of the defendant airline had inspected their boarding passes without comment, were held to be 50% contributorily negligent for missing their correct flight

In Can-Arc Helicopters Ltd. v. Textron Inc., [1992] 3 W.W.R. 60 (B.C. S.C.). The plaintiff lessee of a helicopter that crashed due to a mechanical problem was held to be 40% contributorily negligent for failing to previously address a warning issued by the manufacturer about that mechanical problem .

In Northern Helicopters Ltd. v. Vancouver Soaring Assn., [1972] 6 W.W.R. 342 (B.C.S.C.).  A plaintiff was found to be 66 1/3 % contributorily negligent when its helicopter failed to give way to a glider prior to a mid-air collision between the two.

In Effendi v. Beaulieu (1993), 133 N.B.R. (2d) 146 (Q.B.).  A plaintiff who had been a passenger in a small airplane and who was injured when he stood before the taxiing airplane in an attempt to help the pilot roll it into the hanger was held to be 30% contributorily negligent.

Marine.

In Egmont Towing & Sorting Ltd. v. “Telendos” (1982), 43 N.R. 147 (Fed.C.A.).  A tugboat that was struck by an ocean-going vessel while being overtaken by that vessel was held to be 33% contributorily negligent for failing to keep a proper lookout.

In Kwok v. BC Ferry Corp. (1987), 20 B.C.L.R. (2d) 318, affirmed 37 B.C.L.R. (2d) 236 (C.A.). A plaintiff whose pleasure craft collided with a ferry was held to be 33% contributorily negligent for failing to keep a proper lookout in a shipping channel he knew to be navigated by large ferries.

Cielo Bianco” (the) v. Algoma Central Railway, [1987] 2 FC 592 (C.A.). A plaintiff whose ship was struck by a second ship that crossed the plaintiff’s ship’s course was held to be 25% contributorily negligent for failing to keep a proper lookout, and for proceeding on assumptions as to the other ship’s movements that were based on scanty information.

In North Ridge Fishing Ltd. v. “Prosperity” (The), 2000 BCSC 1124 The owner of a fishing vessel whose net was damaged by another nearby fishing vessel was held to be 75% contributorily negligent for failing to keep a proper lookout.

In Sea-Link Marine Services Ltd. v. Doman Forest Products Ltd,. 2003 FCT 712. The plaintiff cargo carrier was found to be 40% contributorily negligent with respect to damage to its barge caused by improperly stowed cargo because the barge’s captain had overseen, and provided some instruction for the stowage of the cargo.

In Chamberland v. Fleming [1984] Alta D. 3380-01 (Q.B.) A person who could not swim, and who drowned when the canoe he was operating was swamped by the operation of another vessel, was 25% contributorily negligent for failing to wear a life jacket.

In Canadian Fishing Co. v. R., [1960] Ex. C.R. 303 (Can. Ex. Ct.) A plaintiff whose fishing boat collided with another boat that had been proceeding at an excessive rate of speed without proper lookout, was 25% contributorily negligent because the fishing boat’s master had failed to act sufficiently promptly in putting his ship in reverse.

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