Smolden Vs Whitworth Case Analysis

To be able to successfully discuss the legal requirements needed to succeed in a negligence action we first to need to understand what is needed for something to be considered negligent and what you aim to succeed in trying to sue for it. For a successful negligence claim to be made there needs to be four elements present: duty of care, breach of a duty of care, causation, and damage. When suing for negligence you are usually seeking for compensation this can come in two forms. Firstly, it could be quantifiable loss (earnings) or unquantifiable loss (ability to play sport). In this essay, I will discuss the four elements needed and identify if they link to our scenario above.

Duty of care, is the idea that there is a responsibility from one

to another in a case. The Donoghue V Stevenson (1932) first established this idea. This case involved Mrs Donoghue who was drinking ginger beer and eventually noticed there was a decomposing snail in the bottle. She took ill die due to this and took legal action on the manufacturer. Her claim was a success, it established the idea of the neighbour test (Donoghue V Stevenson, 1932). The neighbour test, it is that the duty of care goes all the way from manufacturer to the consumer (for this case), generally it is the idea that ‘you must take reasonable care to avoid acts or omissions which you reasonably foresee would be likely to injure your neighbour’ (Murphy, 2012, p.27). This case is ideal for the scenario we have as ES Ltd has responsibility for all the people within its shopping mall and RW Ltd is responsible for its staff carrying out work, this is proved by the term vicarious liability where employees undertaking their employment duties are indemnified by the employer. We know that they were aware of Miss Takes’ unsafe practice but still let her work. This can lead us to deduce that there was a duty of care present.

Breach of duty of care is all about falling below the set standard, courts often apply the idea of the care expected by the reasonable man possessing the skills within the field in question (Giliker, 2011, p.138).

Although, the case of Smolden V Whitworth (1996) is related to codes of practice and conduct it can be linked to the scenario given. The Smolden V Whitworth case involved a rugby player who broke his neck when competing in a scrum. The player sued the referee and it was successful as he hadn’t followed code of practice (Smolden V Whitworth, 1996). We can link this to scenario given in multiple ways. Firstly, let’s look at it from the side of ES Ltd. Miss Fortune should argue that ES Ltd did not choose adequately when deciding to hire RW Ltd for the work that needed to be carried. They were aware of the poor safety record, that if we follow the rules of the reasonable man, RW Ltd did not as a company possess the skills of a reasonably competent person, they put aside the most important factor when carrying out any kind of renovation (health and safety) for price. They were themselves willing to fall below standard to benefit financially. More closely linked to Smolden V Whitworth we can now discuss the idea of not following set codes (requirements) and the consequence of this action. RW Ltd should have followed the instructions of ‘The Regulations require employers to ensure that safety signs are provided (or are in place) and maintained in circumstances where there

is a significant risk to health and safety that has not been removed or controlled by other methods’ The Health and Safety (Safety Signs and Signals) Regulations 1996 (pt.1). Not only did RW Ltd employ someone that they knew fell below the standards of the reasonable man for this fields, which they knew due to the fact they had previously warned her of her unsafe practice but they also didn’t follow regulation. This means that in fact they did breach duty of care.

The linking factor between breach and damages is causation. The link needs to be showed that the breach led to the consequences. So, for our case the negligence of both ES Ltd and RW Ltd led to Miss Fortune acquiring major injuries. To prove this idea of causation we use the ‘but for’ test, if the defendant wouldn’t have been negligent then the claimant wouldn’t have sustained these injuries (Legal Information Institute, 1992). It is hard to prove causation, but if we look at the situation using the term ‘Res Ipsa Loquitar’, let the thing speak for itself it is quite simple. If Miss Tate would have used the correct safety procedures in erecting safety barriers and signage, Miss Fortune wouldn’t have been able to walk over the section of the mall. So, ‘but for’ the negligence of Miss Tate, Miss Fortune wouldn’t have been injured. The case of Cassidy V Ministry of Health (1951) could be introduced to support the case of Miss Fortune. Normally, it would be the case of claimant to find the balance of probabilities but as we know from Cassidy V Ministry of Health proved this is not always the case. The Ministry of Health caused via a tight bandage the whole hand of Mr Cassidy to become useless, therefore they had to find out what happened (Cassidy V Ministry of Health, 1951). If RW Ltd had to find causation, then they would only be able to discover that simply Miss Tate did not carry out her duty adequately meaning they would be liable. For, ES Ltd if they would have put health and safety at the forefront when searching for a company to carry out the renovations needed then actually the work would more than likely have been carried out to standard requirements of the reasonable man. Therefore, with the causation which is present it means that there is a link between breach of duty of care and damages.

When establishing damages for the scenario given we need to decide if the event was foreseeable or not.

To aid us with this it is best to draw on the facts of the Hughes V Lord Advocate (1963), this case involved a telecommunications company who left a manhole unattended with a live lantern switched on. Two children were burnt and the case was held foreseeable (Hughes V Lord Advocate, 1963). This links to our case as the renovations where left by Miss Take unfinished, so therefore we can assume that there was always the chance that the sign could fall, so actually this damage is reasonably

foreseeable.

In conclusion, the cases I have chosen to use are used as they offer relatable points to the scenario given and would only strengthen Miss Fortunes chances of coming out with a successful claim. Miss Fortune has a strong negligence clam against both ES Ltd and RW Ltd as all four areas are present in terms of what you need to file a negligence claim: duty of care, breach of duty of care, causation, and damages.