In the tort of negligence, the claimant must prove that they suffered harm

In the tort of negligence, the claimant must prove that they suffered harm because the defendant did or failed to do something. To establish liability of the defendant, it is required that the following components are sustainable before a negligence claim; there was a duty of care that ought to have been provided by the defendant to the claimant, there was a breach in this duty of care, and due to the violation the claimant suffered damage as a foreseeable consequence . To establish whether BBC and Francine are liable for negligence and whether they have a defense, the following is observed. First, it should be established whether BBC and Francine owed Emma or Sarge a duty of care. In Donoghue v Stevenson (1932), it was determined that a person owed a duty of care to another if they could foresee that their action might affect the other person. As a result, the neighbour principle was established. To establish the existence of the duty of care, it would be required that the test of reasonable foreseeability is applied . The question here is whether; BBC and Francine would foresee the damage that would result from their action of letting Emma and Sarge on stage on that night.

It may be argued that following their foreseeability on possible damages on stage, Francine had required that Emma and Sarge meet her for a “safety briefing” which Emma had failed to attend. However, in Chapman v Hearse 1961, it was established that the defendant was liable for negligence because he failed to apply the necessary control while driving causing damages to the plaintiff. Same applies to the case of Francine but not BBC because she was aware that Emma had not attended the briefing but let her on stage anyway. Therefore, while both BBC and Francine could foresee the damage due to the hole on stage, Francine failed further, and as such, they were both liable for negligence.

Secondly, Francine and BBC could be held liable for negligence if it was proved that the care of duty had been breached. To determine the breach, the law requires proof that a reasonable person would have foreseen the harm and that the defendant could have taken necessary steps to prevent it . To substantiate a breach of a duty of care, a standard of care test is required to determine a reasonable person . In the current case, the liable party is Francine and BBC, and on the question of whether based on the standard of care test, they have the requirements to be referred as reasonable, and the answer is yes. The reason is that BBC owns the show and the stage while Francine is the stage director. This means that both parties were aware of the hole and thus were responsible for informing Emma and Sarge about the whole and also provided due guidance on how to navigate on stage to avoid harm. In Overseas Tankship (UK) Ltd v The Miller Steamship Co 1967, the case was concerned on the test for breach of the duty of care of the defendant. It was held that a reasonable person in the position of the welders working on the defendant’s ship would ascertain the risk of fire. Accordingly, on the liability for negligence due to a breach of the duty of care, BBC and Francine were liable.

Thirdly, to prove liability for negligence, the claim must prove the existence of a proximate relationship between the claimant and the defendant to impose the duty of care. This requirement considers the concept of closeness that may be causal, circumstantial or physical . Regarding the current case, the question is whether the relationship between the grieved parties and BBC and Francine has a sufficiently proximate to result in a duty of care. In Nagle v Rottnest Island Authority 1993, the court established that there was proximity considering that it was the Board that had a responsibility to the people attending the basis, and although the claimant was a member of the Board, it was still the responsibility of the Board to ensure the safety of the claimant. This applies to the duty of care due to proximity to Sarge despite the fact that he is an employee of BBC and would probably have known about the hole.

Defenses

On the question of whether Francine and BBC would have any defenses, the answer is yes, and this is based on contributory negligence. Contributory negligence is said to have occurred if the behaviour of a claimant is below the necessary standard for their safety and when cooperated with the negligence if the defendant causes harm to the plaintiff . In two circumstances, contributory negligence can be proved in the current case. First, Emma failed to attend the “safety briefing” which she was aware that it was necessary for her safety while on stage and secondly, both Emma and Sarge were drunk when they came to stage and as such they were not in the best state of mind to judge situations in a way to avoid accidents. In Butter v Forrester 1809, it was ruled that the damages suffered by the claimant were as a result of contributory negligence. As a result, it was established that the claimant failed to employ ordinary caution and, therefore, barred from compensation.

Source: Essay UK - http://lecloschateldon.com/essays/law/in-the-tort-of-negligence-the-claimant-must-prove-that-they-suffered-harm/


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