A Tort Law

Introduction Based on the question, Mark had suffered property damage due to the fire that was set by the youths. Therefore, we are required to advice Mark in respect of any claims he may have against various parties: the Amber Borough Council (hereinafter ABC), Chigley Services, Home Office, Justin and Jason, and the Fire Brigade. Technically, Mark could bring an action for economic loss under negligence and vicarious liability which are governed by the law of tort. Since we are advising Mark to take an action for economic loss, we will be discussing pure economic loss before considering the potential liabilities of each party. Economic Loss First and foremost, the law of tort has always been willing to compensate losses resulting from tort that are described as economic with damages[1]. Generally, there are 2 types of economic loss: the consequential and pure economic loss. There is a case which illustrates the difference between the types of loss, Spartan Steel v Martin[2]. Here, the claimant was unable to carry out their operation due to the defendant’s negligence and claim under three heads: firstly, the damage to the metal that was in the furnace at the time of the power cut; secondly, the loss of profit that would have been made on the sale of that metal; and thirdly, the loss of profit on metal which would have been processed during the time the factory was closed due to the power cut. A majority of the Court of Appeal held that the first two claims were recoverable as the first claim belongs to physical damage to property while the second claim categorized as economic loss arising from damage to property. However, the third claim was not recoverable as the court held that it was pure economic loss and due to policy reasons. Thus, pure economic loss is not recoverable as it does not result from damage to property or physical injury but rather claim through insurance by virtue of the case of Marc Rich v Bishop[3]. By referring back to the facts, it was found that the fire set out by the youths had caused damage to the neighbouring property including Mark’s baker’s shop. Therefore, it is likely that Mark would be able to claim for consequential economic loss. However, each party’s tortious liability needs to be established first in order for Mark to be able to succeed in his claims. Justin & Jason Based on the question, the youths who had broken into the disused school and set fire to it had been clearing rubbish from a neighbouring stream and were supposed to have been supervised by Justin and Jason, both of whom are Chigley Services employees. However, both of them had gone for a cigarette break and left the youths unsupervised at the time the break-in occurred. Thus, Mark could bring an action against them under negligence. As per Baron Alderson in Blyth v Birmingham Waterworks[4], he defines negligence as “omission to do something, which a reasonable man, guided upon those considerations, which ordinarily regulate the conduct of human affairs, would do, or doing something, which a prudent and reasonable man would not do.”[5] Therefore, in order for negligence to be actionable, there are three main elements to be established as stated by Lord Wright in Lochgelly Iron Co v McMullan[6]:

• The defendant must owe the claimant a duty of care;
• The defendant must breach that duty of care;
• That failure must cause damage to the claimant and the damage is not too remote.

Duty of care First and foremost, Mark must prove that both Justin and Jason owe him a duty of care. If he fails to establish this, his suit will be unsuccessful regardless of how careless the defendant is or the defendant carelessness that caused the damage. In regard to the establishment of duty of care, we are required to look into Lord Atkin’s groundbreaking judgement in the early case of Donoghue v Stevenson[7]. In this case, Lord Atkin had developed the neighbourhood principle which states that the duty of care is owed to “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 act or omission called into question…”[8] Therefore, once the neighbour principle is satisfied, the person will be assumed to have duty of care towards the claimant. Despite a two-stage test was set down in Anns v Merton[9] after the case of Donoghue, in 1990, it has been overruled by Caparo v Dickman[10] which laid down the modern three part test and it was said to be the basic test for duty of care which is still applicable until today. Thus, in order to decide whether there was a duty of care, the court must now consider:

• Whether the consequences of the defendant’s act were reasonably foreseeable;
• Whether there is a relationship of proximity between the parties; and
• Whether in all the circumstances it would be just, fair and reasonable to impose a duty

Firstly, the defendant must have foreseen the risk of harm to the claimant at the time he is alleged to have been negligent. As stated by Lord Lloyd in Page v Smith[11], “the test in every case ought to be whether the defendant can reasonably foresee that his conduct will expose the claimant to the risk”[12] By referring back to the question, Justin and Jason were supervising a group of youths from a young offenders institution, hence, it is reasonable to foresee that by leaving the youths unsupervised, it would expose Mark to a certain risk. Even though Justin and Jason might try to argue based on the case of Topp v London Country Bus[13] where the bus company did not owe a duty of care when leaving a bus unattended and joy riders stole the bus and injured the claimant. It is unlikely that they will succeed as the bus was not operating at that time. Secondly, Mark must prove that there is a relationship of proximity between him and the defendants. Proximity must be a legal one rather than factual proximity. Following the case of Sutherland Shire Council v Heyman[14], proximity could be said as involving the notion of nearness or closeness, a nexus or relationship; embracing physical proximity between the parties or their property; concerning proximity in relationships such as employer and employee or of a professional man and his client; including "causal proximity" in the sense of the closeness or directness between the course of conduct and the loss and injury sustained; or reflecting an assumption by one party of a responsibility to take care to avoid the injury, loss or damage to another, or where a party relies on such care. Based on the question, there is a relationship of proximity between Mark and the defendants as the baker’s shop was located nearby the school. Thirdly, the court must consider whether it is just, fair and reasonable to impose a duty on the defendants. The test of fairness is closely associated and inevitably intertwined with the first two elements. Therefore, it is the judges’ discretion to impose a duty of care if it is just fair and reasonable. Breach of duty of care After proving that there was a duty of care owed to Mark, he must now prove that Justin and Jason have breached the duty of care. The second element of the negligence refers to the standard of care that is appropriate to the duty owed. Therefore, when the party owing the particular duty falls below the standard of behaviour that is required that is required by the respective duty, breach of duty occurs. Before accessing in detail, we must first identify whether Justin and Jason is an ordinary or skilled defendant. Based on the question, it could be seen that they are ordinary person. Therefore, the appropriate standard of care would be based on reasonable man’s test and the conduct of Justin and Jason are measured against that of a reasonable person in the same circumstances. In deciding whether there was a breach of duty, the court will take into account the following four factors: the degree of risk involved, the practicability of taking precautions, the seriousness of harm and the social importance of the risky activity. In the case Walker v Northumberland[15], the courts held that the defendants was in breach of their duty due to failing to take reasonable steps to avoid psychiatric injury after knowing of the social worker’s likelihood to suffer a subsequent nervous breakdown. This could be a good illustration to the facts of the question because by applying it, Justin and Jason would be in breach of their duty of care for failing to take reasonable steps to avoid the risk involved since the youths had track records of juvenile behaviour to commit offences again. Causation After establishing the first two elements, the third element that needs to be established by Mark is the element of causation. In the case of Barnett v Kensington[16], the court adopted the “but for” test in regards to factual causation. By referring to the question, it is certain that “but for” the breach of duty of care by Justin and Jason the incident would not have occurred. Nevertheless, Justin and Jason might rely on novus actus interveniens by stating that the action of the youths, the fire brigade and the Amber Borough Council have break the chain of causation. It is highly likely that Justin and Jason will quote the case of Smith v Littlewood[17] stating that the youths broke the chain of causation by setting the fire. On the other hand, Mark could argue by distinguishing the facts in Smith as the cinema owners in that case did not know about previous acts of vandalism but on the facts the local residents reported that youths had broken into the site on a number of occasions. Remoteness of damage The final element of proof in negligence is whether there is a causation in law, which also known as remoteness of damage. In order for Mark to succeed in claiming under negligence, it is essential for him to prove that the damage is not too remote. In the case of Wagon Mound 2[18], the court held that the defendants were liable even though the likelihood of harm was low, the seriousness of harm was high and it would have cost nothing to prevent it.[19] Therefore, by applying back to the case, it is highly likely that Justin and Jason would be held liable for the property damage suffered by Mark due to the seriousness of harm and the likelihood of the youths to cause damage. Even though Justin and Jason would argue based on the case of Wagon Mound 1[20] which lies the test of whether the damage is of a kind that was foreseeable and argue that the damage caused by the youths was unforeseeable, it is likely that they would fail. Thus, Mark would be successful in claiming from Justin and Jason. Chigley Services In order to act in the best interest of the client, we could advise Mark to bring an action against Chigley Services under the tort of vicarious liability to claim for damages since Justin and Jason are the employees of Chigley Services. This is because an employer will be in the best financial position to meet a claim rather than an individual and therefore, Mark would be able to claim a higher amount of damage. The tort of vicarious liability is a form of joint liability since an employer is being made liable for the tort committed by his employee. In pursuance of establishing vicarious liability, there are a few elements that need to be established. First and foremost, whether the person committing the primary tort is an employee; secondly, was there a tort that has been committed; and thirdly, was the tort committed in the course of employment or so closely connected to the employment. The court would refer to the Employment Rights Act 1996[21] in determining the employment status. It is no doubt that Chigley Services is the employer of Justin and Jason and both of them had committed tort. Hence, the only issue that we need to consider would be whether the tort committed was in the course of employment. Mark would argue that both Justin and Jason had carried out an authorised act in an unauthorised manner by having a cigarette break owing to the case of Century Insurance v Northern Ireland Transport Board[22]. Per contra, Chigley Services could bring in the case of Hilton v Thomas Burton[23] to support their rebutment by stating that the tort was committed outside the course of employment and Justin and Jason were “on a frolic”. Therefore, Mark would not be likely to succeed in claiming from Chigley Services by virtue of this case. Home Office Duty of Care Based on the neighbor principle in Donoghue, it is possible for Mark to bring his case against the Home Office to claim for economic loss under the tort of negligence. As discussed above, Mark needs to satisfy the four elements as required so that his claim would be successful. Therefore, the Caparo test would be used again to consider whether the Home Office owes Mark a duty of care. However, it must be noted that since the Home Office is a public authority and act under a statutory duty, the courts are withdrawn from imposing duty due to policy reasons. Policy Reasons The policy reasons are the main consideration for the courts to decide whether or not to impose liability. As stated by Winfield and Jolowicz, “the court must decide not simply whether there is or is not a duty, but whether there should or should not be one.”[24] The liability of public authorities is subjected into misfeasance and non-feasance. In this case, it would be a non-feasance liability and the traditional approach is in the case of Home Office v Dorset Yacht [25] which is very similar to the present case. In Dorset, it was held that the Home Office owes a duty of care towards the claimant as they were in control of the 3rd party and was reasonably foreseeable that harm would result in their action. On the other hand, the Home Office could support their argument by using the case of Lamb v London Borough of Camden[26] as Lord Denning, for a unanimous court, rejects the Home Office’s test for being too expansive and allowing damages to be assessed when they should not. He further stated that in all of these types of cases what really lies behind the judicial decisions is public policy.[27] Besides, the Home Office could reinforce their argument by stating that there was no sufficient proximity between Mark and the Home Office as per the case of K v Secretary of the State for the Home Department[28]. Hence, the court would not impose liability on the Home Office based on policy reasons. Fire Brigade Further, Mark could bring an action against the fire brigade under negligence. Without doubt, it is reasonably foreseeable that the fire would continue to spread and caused injury or property damage due to the negligence of the fire brigade and therefore the issue of proximity will be accessed. Based on the case of Hill v CC of West Yorkshire[29], the court will generally render insufficient proximity between public authority and general public. However, Mark could cite the case of Kent v Griffiths[30] to strengthen his argument that the fire brigade owed him a duty of care and there was sufficient proximity between the parties. In this case, Lord Reid stated that if a person who is foreseeable to suffer further injuries by a delay in providing an ambulance and there was no reason why it should not be provided, it is important in establishing the necessary proximity and duty of care in the case. On the other hand, the fire brigade would rely on the case of John Munroe v London Fire and Civil Defence Authority[31] to exclude liability. The fire brigade could distinguish Kent by stating that in the present case, the Amber Valley Fire Brigade was unavailable at that time, which means that they had other duties to carry out aside from Mark’s. Besides, the other fire engine dispatched from Leicester who got lost because they put the wrong address in the sat-nav may be acceptable as they might be unfamiliar of Amber Valley. Thus, the court would discharge the fire brigade’s liability due to policy reasons. ABC Last but not least, Mark could pursue an action under negligence to claim from ABC as well. The duty of care will be establish if Mark able to satisfy the Caparo test as discussed above. Since the site had broken into on a number of occasions, ABC could be found reasonably liable and there was sufficient proximity between the parties since the bakery shop was nearby the school. The question will lie on whether ABC had breach the duty of care. Mark could apply the case of Miller v Jackson[32] in contrast with Bolton v Stone[33] at his favor. Due to the site was broken into on a couple of times, the likelihood of injury would be high and therefore ABC would be in breach of duty. Besides, the “but for test” also in favor of Mark because “but for” the breach of ABC the youth would not have enter into the site and conduct any offences. However, ABC could challenge on the ground of legal causation and held that the damage done was too remote by relying on Wagon Mound 1. Thus, Mark would be likely to fail in his claim. Conclusion In a nutshell, Mark could pursue an action against these parties but he will only be successful in claiming damages from Justin and Jason. 1

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[1] Catherine Elliott & Frances Quinn, Tort Law ( 7th edition, Pearson Education Limited 2009 ) pg.27 [2] Spartan Steel & Alloys Ltd v Martin [1972] 3 WLR 502 [3] Marc Rich v Bishop Rock Marine [1996]1 AC 212 (HL) [4] Blyth v Birmingham Waterworks Company [1856] 11 Ex Ch 781 [5] Ibid. [6] Lochgelly Iron and Coal Co. v. McMullan [1934] AC1, 25 [7] Donoghue v Stevenson [1932] UKHL 100 [8] Ibid [9] Anns v Merton London Borough Council [1978] A.C. 728 [10] Caparo Industries plc v Dickman [1990] UKHL 2 [11] Page v Smith [1995] UKHL 7 [12] Ibid [13] Topp v London Country Bus (South West) Ltd [1993] CA [14] Sutherland Shire Council v Heyman (1985) 157 CLR 424 [15] Walker v Northumberland County Council [1995] IRLR 35 [16] Barnett v Chelsea & Kensington Hospital Management Committee [1968] 1 All ER 1068 [17] Smith v Littlewoods Organisation Ltd [1987] UKHL 18 [18] Overseas Tankship (UK) Ltd v The Miller Steamship Co or Wagon Mound (No. 2) [1967] 1 AC 617 [19] Available at https://www.e-lawresources.co.uk/The-Wagon-Mound-No-2.php accessed 17th January 2014 [20] Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd or "Wagon Mound (No. 1)" [1961] UKPC 1 [21] Employment Rights Act 1996 [22] Century Insurance Co v Northern Ireland Road Transport Board [1942] AC 509 [23] Hilton v Thomas Burton (Rhodes) Ltd [1961] [24] Chris Turner & Sue Hodge, Unlocking Torts (3rd edition, Hodder Education, 2010) [25] Home Office v Dorset Yacht Co Ltd [1970] UKHL 2 [26] Lamb v London Borough of Camden [1981]2 All ER 408 (CA) [27] Ibid [28] K v Secretary of the State for the Home Department [2002] EWCA Civ 983 [29] Hill v Chief Constable of West Yorkshire [1988] 2 WLR 1049 [30] Kent v Griffiths [2000] 2 All ER 474 [31] John Munroe v London Fire and Civil Defence Authority [1997] QB 1004 (CA) [32] Miller v Jackson [1977] QB 966 [33] Bolton v. Stone [1951] AC 850, [1951] 1 All ER 1078

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