{"id":327,"date":"2019-07-30T11:18:27","date_gmt":"2019-07-30T11:18:27","guid":{"rendered":""},"modified":"2021-04-28T13:35:58","modified_gmt":"2021-04-28T13:35:58","slug":"civil-action-negligence-common-law-9363","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/common-law\/civil-action-negligence-common-law-9363.php","title":{"rendered":"Criteria for Raising a Civil Action in Negligence in Common Law"},"content":{"rendered":"

Introduction<\/strong><\/p>\n

The purpose of this assignment is to explain the criteria for raising a civil action in negligence at common law in the case of someone who has suffered a workplace injury and the concept of vicarious liability.<\/p>\n

Main Text<\/strong><\/p>\n

To understand the law surrounding negligence we must first look at the foundation of modern-day laws surrounding negligence at common law, these are derived from the case of Donoghue V Stevenson<\/a>. \u207d\u1d2e\u00b9\u207e This case established the general principles of the duty of care, where Lord Aitken defined the \u201cNeighbour\u201d principle, and stated that \u201cpersons 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 in question\u201d.\u207d\u1d2e\u00b9\u207e This means that it must be taken into consideration wither an employer has fulfilled their legal obligations and taken all reasonable measures to prevent employees or third parties coming to harm. A duty of care being owed is the first point that must be proven when raising a civil action in negligence at common law.<\/p>\n

An employment contract is voluntary and has implied terms (obligations) that firstly impose duties on employers to take reasonable care of the safety of employees & secondly not to undermine their trust and confidence and, \u201cis the basis of the legal duty of care to an employee in the tort of negligence.\u201d \u207d\u1d2e\u00b2\u207eAn employer cannot delegate this duty to another. \u207d\u1d2e\u00b3\u207e This means that an employer cannot blame an employee for his duties as an employer, even if the employee has been delegated a task. The first part of this obligation has three further employer duties attached to it, these are the provision of;<\/p>\n

    \n
  1. Safe premises, plant, and equipment.<\/li>\n
  2. Competent fellow workers.<\/li>\n
  3. A safe system of work.<\/li>\n<\/ol>\n

    Negligence is part of the law of delict and is important as it arises from an involuntary obligation, it is also part of private law and is pursued in the civil courts. The criteria needed to pursue this at common law is;<\/p>\n

      \n
    1. Reasonable foreseeability<\/li>\n
    2. Relationship of proximity<\/li>\n
    3. It must be fair, just and reasonable<\/li>\n<\/ol>\n

      Reasonable foreseeability is what a reasonable person would have foreseen happening, not what they saw. As in the case of Kennedy V Chivas Brothers Ltd [2013] \u207d\u1d2e\u2074\u207e the claimant injured her hand by pushing a trolley that collided with machinery. The claim failed at the first instance as the judge found the task didn\u2019t involve a real and foreseeable risk as the task was \u201csimple\u201d, but this was overturned on appeal by applying regulation 4 of (suitability of Work Equipment) \u207d\u1d2e\u2075\u207e which states \u201cevery employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided\u201d \u207d\u1d2e\u2074\u207e , it also applied regulation 5 (maintenance).\u207d\u1d2e\u2075\u207e<\/p>\n

      A relationship of proximity must exist, this means there must be a connection between the employer and employee, and the employee was given instruction by the defendant or his subordinate acting within the scope of their employment which caused the harm. \u201cIt is now clear that the crucial element is \u201cassumption of responsibility\u201d \u207d\u1da0\u00b9\u207e by the defender, for that assumption not only creates the relationship of proximity but also justifies characterising carelessness within the ambit of that responsibility as Culpa (fault\/negligent)\u201d. \u207d\u1d2e\u2076\u207e<\/p>\n

      Is it fair just and reasonable to impose a duty in this case? The courts may consider did employer have a safe system of work and did they do appropriate risk assessments for each individual task, the costs and difficulties associated with those, did the complainant have individual health screening, did the employer considered themselves to be an expert in Health and Safety, Was the duty of care breached, what are the industry standards? The employee must adhere to their scope of duty, this is the responsibilities and activates they are reasonably expected to carry out as defined in their contract. The standard of care owed by the employer ensures that they must \u201ctake such steps as are reasonable to ensure that those to whom the duty is owed are not exposed to a risk of injury that is reasonably foreseeable in all circumstances\u201d. \u207d\u1d2e\u2077\u207e If an employee has acted outside his scope then the employer may not be held liable, as to be held liable would not be fair, just and reasonable. If the complaint is found to be fair, just and reasonable and the duty of care has been breached, it would then need to be proven that the injury had been caused by the accident. For example, was it a breach of the degree of care, was the correct P.P.E made available and were any prior conditions known about that would affect the employee performing this job, as in Paris v Stepney Bourgh Council. \u207d\u1d2e\u2078\u207e<\/p>\n

      What is the burden of proof? This is proof of negligence and is placed on the employee, but this switches to the employer when the circumstances of the accident are blatantly the fault of the employer by not taking appropriate measures to prevent an accident that was always going to happen. This is known as res ipsa loquitur and is Latin for \u201cthe thing speaks for itself\u201d. \u207d\u1d2e\u2079\u207e<\/p>\n

      HASWA\u207d\u1d33\u00b9\u207e sets out the duties on an employer \u201cto ensure the health, safety and welfare of their employees and others affected by their activities.\u201d \u207d\u1d2e\u00b9\u2070\u207e However section 69 of ERRA\u207d\u1d33\u00b2\u207e amends the provisions of section 47 (2) HASWA. Section 69 of ERRA concerns civil liability emerging from breach of statutory duty, ERRA stopped claims being taken to court on breach of statutory duty and claims can now only be taken to court if they succeed to show \u201con the balance of probabilities\u201d that an employer has been negligent. \u207d\u1d2e\u00b9\u00b9\u207e This is known as \u201ccausation\u201d and would show that the claimant has more than a 50% chance of proving the injury or loss claimed. A breach of statutory duties can also overlap with common law when they are addressing different issues that arise from the same event.<\/p>\n

      Vicarious Liability is where an employer is liable for an act of negligence committed to an employee or to a third party by his employee whilst acting within the scope of their employment, it therefore makes someone else liable in addition to the wrong doer.<\/p>\n

      One recent case that demonstrates vicarious liability being held in favour of the complainant is \u201cMohamud V WM Morrison Supermarkets\u201d. \u207d\u1d2e\u00b9\u00b2\u207eMr Mohamud was a customer in the petrol stationwhen a Morrisons employee (Mr Khan) physically assaulted and racially abused Mr Mohamud. The link of \u201csufficiently close connection\u201d was not proven at the initial trial and the case went to the appeal courts who found that there was a \u201csufficiently close connection\u201d between Mr Khans job of operating the filling station and his actions against Mr Mohamud to whom he had taken a dislike,\u00a0and WM Morrison Supermarket was found vicariously liable.<\/p>\n

      A case that failed to prove vicarious liability was \u201cClive Bellman V Northampton recruitment Limited\u201d. \u207d\u1d2e\u00b9\u00b3\u207e A company employee was assaulted by the Managing Director after the annual Christmas party. There was a subsequent after drinks party at an hotel where the employee suffered serious brain damage, caused by the assault. The employee claimed that that company was vicariously liable for the Managing Directors assault. The judge held the link of \u201csufficiently close connection\u201d, was insufficient because a line could be drawn under the evening\u2019s events after the Christmas party finished.<\/p>\n

      The main key health and safety regulations are: \u207d\u1d2e\u00b9\u2074\u207e<\/strong><\/p>\n