Tort 1 BNM Formative Assessment and Indicative Content

Tort 1 BNM Formative Assessment and Indicative Content

Case scenario

For Kens 10th birthday party his parents hired out a trampolining park, Jump In, to celebrate. Ken invited his two friends Malcolm and Robin who were both 10 years old too. Two employees were ill on the morning of the birthday party and rather than securing more members of staff, the trampolines went unsupervised.

Whilst enjoying bouncing on the trampolines, Malcolm decided to do double somersaults (a dangerous somersault) in the air and not realising Ken had jumped on to his trampoline Malcolm fell on top of him, causing Ken damage to his spine.

Through an agency Edward was hired to assist with safety checks on the trampolines. Edward was told where to work and had set working hours, being 9-3pm 2 days per week. Edward had his own van to carry trampoline parts to and from Jump In. Edward did not have to wear a uniform, but was paid by the agency, who did not deduct tax or national insurance.

Edward carried out his daily inspections of the trampolines but was distracted by a colleague when inspecting the last trampoline. The trampoline collapsed when Robin started to jump on it. Robin broke his wrist as a result.

Explain the standard of care owed to Ken by:

(a) Malcolm

(b) Jump In

(45 marks)

Explain whether Robin may bring a claim in negligence against:

(a) Edward

(b) Jump In

(c) The agency

(55 marks)

Indicative content

1(a)

Standard of care objective - that of the reasonable person in the defendants position.

The age of the defendant is a relevant factor in determining what is reasonable Mullin v Richards (1998)

Conclusion - Malcolm will be adjudged by the standard of the reasonable child of his age, although as Malcolm is 10 years old, this will represent a significantly lower standard, which wouldnt be the case with someone who is a teenager.

1(b)

Starting point - reasonableness - the standard of the reasonable trampolining park operator.

Other factors may affect this standard.

Where the claimant is a child, and it is foreseeable that children may be particularly exposed to danger, a higher standard may be required (e.g. BRB v Herrington (1972)).

Here, it is clearly foreseeable that at a trampoline park there will be many children and that, left unsupervised, children may injure themselves.

Another factor - the magnitude of the risk (see e.g. Bolton v Stone (1951)) - again, in the circumstances the chance of injury if children are left unattended is relatively high.

Another factor may be the cost of preventing harm, especially as compared to the objective of the defendant (see e.g. Latimer v AEC(1953)). Here, the trampoline park is run (one assumes) to make profit and the cost of taking precautions is relatively low (the cost of a supervisor), so this again may suggest a higher standard of care.

Conclusion - the standard of care is likely to be high and Jump In may be in breach of their duty.

3(a)

Edward will owe a duty of care to Robin, as, even if this is not considered an established duty, there is foreseeability, proximity, and it is fair, just and reasonable to impose a duty.

Edward is in breach of his duty because he has omitted to do what the reasonable worker would do, and this breach has clearly caused the damage.

Edward will be liable to Robin.

3(b)

In order for Robin to bring a claim successfully against Jump In, he must establish that it is vicariously liable for Edwards omission. This means that Edward must first and foremost be an employee of Jump In.

To establish whether a person is an employee, the court will use the multiple test developed in Ready Mixed Concrete v MPNI (1968).

Factors which suggest Edward is an employee of Jump In include that he had set working hours, being 9am 3pm and was told where to work. (see e.g. Motorola v Davidson (2001)).

Factors which suggest Edward is not an employee, at least of Jump In, are that he remains responsible for his own taxes and national insurance and he has his own van to carry trampoline parts to and from Jump In. He also does not wear a uniform and is paid by the agency.

This may suggest an insufficient mutuality of obligation (see e.g. Carmichael v National Power (1999)) and/or that he is not sufficiently integral to the organisation.

Edward does appear to have committed a tort in the course of employment, so if he is found to be an employee of Jump In then Jump In will be vicariously liable.

(b)

The position of those working for an employment agency is not always clear, case authority suggests that the burden is upon the agency to demonstrate that the worker is not an employee of theirs, see e.g. Mersey Docks v Coggins & Griffin (1946), and that this burden is a heavy one.

The fact that Edward is paid by the agency may suggest an employment relationship exists.

The agency could argue that control of Edward while working is exercised by Jump In, and that the situation is therefore more akin to employment e.g. Biffa Waste Services Ltd & Anor v Maschinenfabrik Ernst Hese GmbH & Ors (2008), where control was considered the relevant factor in establishing liability.

It is also an option for the court to hold both Jump In and the agency jointly and severally liable - an example of this can be found in e.g. Viasystems (Tyneside) Ltd v Thermal Transfer (Northern) Ltd & Ors (2005).