Legal Position Of John In Tort Claims By Timothy, Samson, And William - An Essay.

John is the director of a construction company. He decided to have the office building completely redecorated. Chris, the Director of Chris Interiors, agreed to do the work for £60,000. John paid £10,000 in advance and agreed to pay the balance on satisfactory completion of the work.

John also employs a new project manager, Peter, to take over for six months while he visits his relatives in America. Peter agreed to start on 1 June and not to work for any other construction company during his six months’ contract.

When Chris finished the redecoration, John complained that the painting was substandard.  John demanded Chris to repaint all the walls and he refused to pay any more money. Chris is now threatening legal action.

Peter has written to John saying he will not be working for him because he has been offered a better job by his rival company at the end of the road.

Discuss the legal position of John in respect of Chris and Peter.

Norford City Council ('the Council') opened its new indoor swimming pool to the public. The building and pool had been built by McKeown Builders Ltd (“McKeown”). On the first day of opening, Romeo, Samson and Timothy (all aged 11 and unaccompanied by their parents) visited the pool, which was supervised by Vicky and William, life-guards employed by the Council, from their poolside seats.

Timothy soon became bored with the pool and decided to explore. He wandered off and found the boiler room, the door to which was closed.

A notice pinned to the door stated “Warning - Keep Out!”

Timothy ignored the notice and entered the room, receiving a severe electric shock when he groped around in the dark and touched some wiring left exposed by McKeown.

Meanwhile, Romeo and Samson were enjoying themselves in the pool, engaging in boisterous activities, splashing and dive-bombing each other and other swimmers, despite a prominent notice at the side of the pool banning such activities. Vicky and William were too busy chatting to each other to notice what the boys were doing. On one occasion, Romeo, intending to splash Samson, misjudged his jump and landed on top of Samson, rendering Samson unconscious. Alerted by Romeo's cries for help, William raced along the side of the pool to rescue Samson but slipped on the tiling-surround and broke his (William's) arm. Had McKeown Ltd used non-slip tiles in accordance with accepted practice, William might not have slipped.

Vicky successfully rescued Samson who, although severely bruised, soon regained consciousness.

Discuss the possible claims in tort of Timothy, Samson and William.

To develop and demonstrate an understanding of the legal principles involved in English law, and to consider the application in the context of construction activities. To develop and demonstrate an understanding of the legal principles involved in contract and tort.

In order to show general understanding of the topic you should pay particular attention to:

• Theapproach of analysing legal 
• Identificationof the parties’ respective legal rights and their application, including case law in support of arguments put 

Issue

Whether a contract was formed between John and Chris, or not? If a contract was formed, whether the same was breached and the possible remedies which can be cited? Whether a contract was formed between John and Peter, or not? If a contract was formed, whether the same was breached and the possible remedies which can be cited?

A contract is a promise made to create legally binding relations where one party promises to do or not do a particular task, for which the other party agrees to pay the value of consideration. A contract can be formed in an oral manner, by exchanging the terms in spoken manner, and can also be formed in a written manner, by writing the terms of the contract on a document and getting the same signed (Roach, 2016). In order to create a contract, there is a need for the contract to have some requirements like offer, its acceptance, consideration, capacity, clarity and intention. The presence of all these elements is essential to create a contract (Mau, 2010).

Once a contract has been formed, it becomes crucial to uphold the terms of the contract or else the contract would be discharged through termination. And in such cases, the innocent party can apply for different remedies. These remedies can take the form of damages, specific performance, injunction, etc (Mulcahy, 2008). In the case of Addis v Gramophone [1909] AC 488, the court stated that the plaintiff had to be awarded damages so as to put him in a place where he would have been in case the contract had been properly performed, instead of damages being awarded as a punishment. Hence, the damages are awarded for compensating the innocent party instead of a punishment. The damages can be awarded for the dissatisfaction or the disappointment caused to the plaintiff in case the contract had been entered for a specified reason, which was of enjoining or being entertained and a leading example of this is Jarvis v Swan Tours [1972] 3 WLR 954  case (Poole, 2016).   

In cases of breach of contract, the plaintiff can apply for damages, and another option which can be availed by them is specific performance, particularly when the damages fail to prove as an adequate compensation for the breach of contract. Specific performance is an order of the court where the court orders a person to do a particular task and is used usually in the cases surrounding the sale of land (Miller and Cross, 2015). When it comes to the personal services contract, the same is not awarded as a person cannot be forced to do a particular task in their personal capacity. Page One Records v Britton [1968] 1 WLR 157 provides clarity in this matter. In this case the court did not grant the injunction order which was sought out as the same was deemed to specific performance order. This was because the impact of this order would have been to force the person to work for the plaintiff or not work at all, which was deemed as an unfair proposition by the court (E-Law Resources, 2017).

Law

Where both damages and specific performance fail to prove as adequate remedies, the aggrieved party can apply for an injunction order through which an individual can be stopped from doing a particular act. Lumley v Wagner (1852) 42 ER 687 proves to be a good example for this. In this case, the court allowed the injunction order which resulted in the defendant being stopped from performing for a competitor as she had promised to perform for the plaintiff (Davies, 2015). 

A contract can also be discharged through frustration. When it such happens that the commercial purpose of the contract is deprived, where none of the party is at fault, the contract is deemed to be frustrated. And in such cases, the parties cannot sue each other for a breach of contract. When the terms covered under the contract are fulfilled, the contract is deemed to be discharged through performance. In order to discharge the contract through performance, it is crucial that the promise made under the contract is fulfilled by all the contracting parties. When a contract covers a condition that it would be completed upon payment, the completion of the contract would require payment to be made (Andrews, 2015).

In Cutter v Powell [1795] EWHC KB J13, the plaintiff’s husband had entered in a contract whereby he had to perform certain duties at a ship for a period of eight weeks and as per the contract, he was to be paid when the voyage was completed, and that too after ten days. However, just six weeks into the voyage, he died and this led to the plaintiff making a case before the court for getting the pay of six weeks for which her husband performed the promised tasks. The court denied the claim of the plaintiff on the grounds that it was a contractual condition that the payment would be made only after the ship reached its destination. As the same did not happen, the claim of the plaintiff was denied by the court (Rush and Ottley, 2006).

The facts given in the case study show that a contract had indeed been created in between Chris and John as a promise had been made where Chris had promised to do the redecoration work and John had promised to pay the consideration of £60,000 for this work to Chris. After Chris finished up his part of the promise, John raised an issue that the redecoration had not been done as per the standards. The case now revolves around the manner in which this contract has to be discharged.

In order for the contract to be discharged through performance, there is a need for both the parties to fulfil their contractual obligation. Here, John can make a claim that this contract is still pending and is not completed owing to the work not been completed as per the standards. Another claim which can be raised by him is that he still has to make the payment which means that the contractual promise is not fulfilled, thus not completed. He can highlight that only the advance payment has been made and the remaining payment would be paid on completion of work as per the standards. Cutter v Powell further strengthens this stand as the contract has to be completed for discharging it through performance. So, an option available before John is to state that the contract is pending completion owing to the work not being as per the standards.

Contract between John and Chris

Though, these claims have high chances of being a flop. This is because the contact had been completed and the work of Chris had been completed. The only thing which was pending in this contract was the payment of Chris by John. By not paying the amount of consideration, John cannot claim that the contract had not been completed as it would actually be a breach of contract on part of John for not fulfilling his contractual obligations. It was a contractual obligation on part of John to pay the promised sum. For the breach of contract by John, Chris has the option of making a claim of breach of contract and can apply for remedy of damages. This would allow the court to pass an order where Chris would be compensated for his loss. John can, upon this claim of Chris, make a claim to the court that he was dissatisfied from the work of Chris on the basis of Jarvis v Swan Tours. Hence, both the parties can make a case of breach of contract but there are higher chances of claims of Chris being upheld for the direct breach of contract as his claim is easily quantifiable whereas John’s claim does not have proper backing as per the given facts.

Coming to the case of John and Peter, a contract had been formed between them where Peter had to work for six months for John and the work had to start from 01 June. This contract had a term where Peter was restricted from working for any other company when he was employed by John. The decision of joining the rival company would result in the breach of contract as the contract covered this term. And for this breach of contract, John can claim remedies and apply for an injunction order, which would help John in restricting Peter from working for another company on the basis of the case of Lumley v Wagner. The reason for this is that a specific performance cannot be given in this case based on Page One Records v Britton as a person cannot be forced to work for a particular party.  

Conclusion

On the basis of this discussion, it can be concluded that there had been a breach of contract by John by not paying the consideration amount to Chris and for this, damages can be applied by him. When it comes to the case of Peter and John, a breach of contract can be claimed by John where he can apply for an injunction order for stopping Peter from going to the rival company.

Whether a case of negligence can be made by Timothy against McKeown, or not? Whether a case of negligence can be made by Samson against Council, or not? Whether a case of negligence can be made by William against Council, or not?

The best manner of defining negligence is the contravention of duty of care which was owed by one person to another person as the actions undertaken by the first party had the capacity of injuring the other party (Trindade, Cane and Lunney, 2007). When a case of negligence is made, the aggrieved party gets awarded damages as remedies for their injury, personal loss, shock, economic loss and the harm caused (Best, Barnes and Kahn-Fogel, 2014). However, for a claim to be successful there is need for the plaintiff to show before the court that a duty of care had been owed to them, which was contravened, which resulted in injury and where there were reasonable chances of such injury occurring owing to the proximity between the parties (Greene, 2013).

Contract between John and Peter

In order to show that a duty of care was owed towards the plaintiff, reliance needs to be made on the leading English case of Donoghue v Stevenson [1932] UKHL 100. This case is also known as snail in the bottle case as a dead snail had been found in the bottle of the consumer. In this case, the court held that a manufacturer was deemed to owe a duty of care towards the consumers as the manufactured product is consumed by the consumer; thus, having the direct capacity of harming or injuring the consumer. The court stated that a contaminated bottle was reasonable foreseeable to cause injury and thus the manufacturer had the duty of making safe bottles. As Stevenson failed to do so, the court held that he had failed in the fulfilling the duty of care which he owed to the consumer, and had to give Donoghue the sought out compensation (Kolah, 2013). This case is a leading example of duty of care, direct causation, proximity and foreseeability, which are required to be shown for making a case of negligence (Statsky, 2011).

The next requirement in making a claim of negligence relates to the contravention or violation of the owed duty of care. This can be established through the case of Paris v Stepney Borough Council [1951] AC 367 where the plaintiff had been hired by the defendant for carrying on his work. The defendant knew that the plaintiff was blind in one eye and they still did not provide him with the requisite safety gear. While working on the machines, one rusty bolt got lose and hit Paris in his good eye, resulting in him being blinded completely. The court upheld the claim of the plaintiff and held that the duty of care had been breached by the defendant as the Council failed in their duties as an employer, which resulted in the employee being injured (Martin and Lancer, 2013). A key principle in context of employer-employee relationship is the vicarious liability. As per this doctrine, which is born from agency law, the employer is liable for the acts done by the employee, provided that such acts are done within the scope of employment (Lunney and Oliphant, 2013).

As has been stated earlier, upon a case of negligence being made, the aggrieved party can apply for damages. However, there are certain cases in which the awarded damages can be reduced by a certain sum (Turner, 2013). One of such cases is contributory negligence in which it is shown that the plaintiff made contribution towards the injury which they got and so, they had to be held liable for failing the duty of care owed towards them (Kennedy, 2009).

When it comes to young people, the degree of duty of care is enhanced. And for this, reliance needs to be made to the case of Roads and Traffic Authority of NSW v Dederer [2007] HCA 42. This case saw an individual, who was just 14, jumping from the bridge which resulted in him being injured gravely. The authority had put signs near the bridge where it was shown that the people should refrain from jumping in the river. Though, the plaintiff ignored this and climbed on the plaintiff due to absence of horizontal bars and jumped. As a result, he was injured due to the uneven surfacing of river. The case was made and the court held both parties at fault. Accordingly, the defendant was held liable under the tort of negligence as care had to be taken when the children were involved. Simultaneously, the plaintiff was held to have contributed to his injuries and sustained a loss of 25% of the remedies awarded to him (High Court of Australia, 2007).

Possible claims in tort of Timothy, Samson and William

The given case study shows that McKeown owed the building in which the boiler room and pool was. So, a duty of care was owed by them towards every person entering the premises owing to the concept of occupier’s liability. The council also has the same duty but for the individuals visiting the pool as the same was opened by them.

In case of McKeown and Timothy, it was a duty of McKeown to ensure no person got inside the boiler room. They had to ensure that the room was properly locked instead of merely planting the warning signs. Based on Roads and Traffic Authority of NSW v Dederer, McKeown would be deemed as negligent and as a result of this, he would have to compensate Timothy for the physical injury caused to him. The case of contributory negligence of Timothy would however not be successful. This is because Timothy was just 11 and he cannot be assumed to be able to apprehend properly if a particular thing was dangerous for him. This further enhanced the duty of care of McKeown. This duty was also breached by McKeown when they failed to cover the exposed wires in the boiler room, which make it reasonable foreseeable to cause an injury to a person, based on Paris v Stepney Borough Council. On these bases, a claim of negligence against McKeown would be successful by Timothy.

When it comes to the case between Council and Samson, there is a need to establish if a duty of care was owed by the Council towards Samson. If the case of Donoghue v Stevenson is used as assistance, there is a need to show that Council and Samson had proximity between them. This is true as the pool was opened by the Council and Samson visited this pool. Their relationship thus had the proximity where acts of Council could affect Samson. Also, it was foreseeable by the Council that people would jump or dive in the pool in certain manner, thus they restricted such actions. Merely installing signs as warning are not adequate measure of discharging the owed duty of care based on Roads and Traffic Authority of NSW v Dederer. Hence, the Council failed in their duties towards Samson. Also, the Council had hired life guards to avoid any such occurrences. But the life guards failed in fulfilling their obligations. As a result of this, Samson could carry on the restricted activities and became unconscious. The concept of vicarious liability would make the Council liable for the misdeeds of the life guards. So, the negligence of the life guard would be negligence of Council. Again, the age of Samson would disallow a claim of contributory negligence. And so, due to the negligence of the Council in keeping Samson safe, a claim can be made by Samson for the mental distress which had been caused to him from this incident.

Coming to the last case of Council and Williams, Williams was an employee of the Council and as per the case of Paris v Stepney Borough Council, they were required to provide safe working environment to the employees. It was their duty to keep the pool safe in order to avoid any incidents from occurring. And this required the installation of slip proof tiles by the Council. However, the Council failed to do so, as a result of which, William slipped and sustained physical injuries. This allows William to make a case against his employer, i.e., the Council for breaching the owed duty of care under negligence and claim damages for the injuries sustained by him.

Conclusion

From the discussion which has been carried on the previous segment, it becomes clear that Timothy has the option of making a case of negligence against McKeown as they failed to fulfil their duty of care owed towards him. A case of contributory negligence however would not be upheld against Timothy owing to his tender age. A case of negligence can also be made by Samson against the Council for the failure of Council and its employees in discharging the owed duty of are. And lastly, in the case of William, he too can make a case against the Council under negligence. Hence, all three parties can claim damages under negligence in this case.

References

Andrews, N. (2015) Contract Law. 2^nd ed. UK: Cambridge University Press

Best, A., Barnes, D.W., and Kahn-Fogel, N. (2014) Basic Tort Law: Cases Statutes and Problems. 4^th ed. Frederick, MD: Wolters Kluwer Law & Business.

Davies, P.S. (2015) Accessory Liability. Oxford: Hart Publishing Ltd.

E-Law Resources. (2017) Page One Records v Britton [1968] 1 WLR 157. [Online] E-Law Resources. Available from: https://e-lawresources.co.uk/cases/Page-One-Records-v-Britton.php [Accessed on: 08/11/17]

Greene, B. (2013) Course Notes: Tort Law. Oxon: Routledge.

High Court of Australia. (2007). Roads and Traffic Authority of NSW v Dederer [2007] HCA 42. [Online] High Court of Australia. Available from: https://eresources.hcourt.gov.au/downloadPdf/2007/HCA/42 [Accessed on: 08/11/17]

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