In this case, the workmen of Newtown borough council caused the continuous power failure on repairing the road. As a result the old man, Alex fell down and got injured due to dark .Moreover the Cool Cola co. faced a heavy loss in profit due to the malfunction of machineries. Here Alex and Cool Cola Co. are likely to bring a claim against Newtown Borough Council for their negligence liability. Now we shall look upon the liability of the council as well as we shall examine whether Alex and Cool Cola co. succeed their claim on the basis of negligence under business law.
The aspect of negligence always consists of the essentials of duty of care, breach of duty and the damages as consequences of such breach of duty. In the famous case the Donogue Vs Stevenson (1) it was held that negligence is a duty of care and it is not simply as an element which has more complex relationship or in some specialized breach of duty. In this case A purchased a bottle of ginger beer in which the plaintiff found out a decomposed body of snail. She brought an action against the manufacturer of for damages. The court held that the manufacturer owed her a duty to take care that the bottle did not contain any noxious matter and that he would be liable on the breach of the duty. Moreover in Heaved Vs Pender(2) the scope of negligence was explained as the actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to person or property.
So it can be seen that if at the time of act or omission the defendant could reasonably foresee injury to the plaintiff, he owes a duty to prevent that injury and failure to do that makes him liable. The law does not require greatest possible care but the care required is that of a reasonable man under certain circumstances. Moreover there should be an omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs which would do or doing something which a prudent and reasonable man would not to do.(3) This principle is well explained in the famous case Blyth Vs Birmingham waterworks Co(4). Here the damages should be in consequence of breach of duty on the part of the defendant .The plaintiff has to show that the damage thus caused is not too remote a consequence of the defendant’s negligence. In Barnett v Chelsea Hospital Management Committee (1969)( 5)the B’s colleagues poisoned his tea for a joke On feeling uncomfortable he went to hospital, there the doctor told him he was drunk and to go .B went home and died. If he had been treated properly, he would not have died. His widow sued the hospital and lost her case as it was held that even though the hospital had a duty towards B, the B had not died due to the breach of this duty.
1. donogue Vs Stevenson (1932) A.C. 532, 580
2. Heaved Vs Pender (1883) 11 Q.B.D 503
3. M. Jones, A text book on Tort, Ch.2, 9th ed., publ.by Oxford University Press (2007)
4. Blyth Vs Birmingham waterworks Co (1856) 11 Ex.781
5. Barnett v Chelsea & Kensington Hospital  1 All ER 1068
The scope and applicability of negligence has found new dimension in the case Caparo Industries v Dickman.(6) It was explained in this case that “What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterized by the law as one of ‘proximity’ or ‘neighborhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other”
In this case, as per the plaintiff’s view all the elements of negligence are consisting of. The Newtown borough council should have to foresee the consequences of digging the pit even though it was for repairing the road. They have not exercised any duty of care as an ordinary prudent man is required to do. In this sense the plaintiff Alex and Cool Cola Co. can have good ground for moving actions against the defendant, Newtown borough council. In Lygo Vs Newhold (7) it was held that if a person agrees to provide conveyance to another, although he does so gratuitously, he is bound to exercise reasonable care. But the defendants can raise some defenses in such cases.
But the defendant has some strong defenses against the arguments of the plaintiff. Under the law of contract, there are several agreements which do not give rise to legal obligations. They are, therefore, not contracts. Similarly there are certain obligations which do not necessarily spring from an agreement like civil wrongs or torts, quasi contracts and judgments of the courts. A contract is an agreement made between two or more parties which the law enforces. Every agreement and promises enforceable at law is a contract.(8)It an agreement creating and defining obligations between the parties.(9) To constitute a contract, there should be offer by one and subsequent acceptance of that offer by another party. Such offer and acceptance should be based on the intention to create a legal relationship between the parties. In the famous case Carlill Vs Carbolic Smoke Ball Co., a (10)company advertised that a 100 pound would be given to any person who contracted influenza after using the smoke balls of the company according to its printed directions. Mrs. Carlill used the smoke balls but contracted influenza. It was held that she could recover the amount as by using the smoke balls because she had accepted the offer. Here in this case it can be seen that there is no such element of offer and acceptance existed between the plaintiff and defendant.
Moreover there should be a lawful consideration to form the contractual relationship between the parties. The consideration is the price for which the promise of the other
6. Caparo Industries v Dickman  1 All ER 568
7. Lygo Vs Newhold (1854) Ex.302
8. Pollock, The law of torts, Stevenson & Sons, Londra, 1997
9. H. Salmond , (1996) , Law of Torts, , p443 publisher: Sweet & Maxwell; 21Rev Ed edition (24 Oct 1996) ISBN-13: 978-0421533509
10 Carlill Vs Carbolic Smoke Ball Co.(1893) 1 QB 256
brought and the promise thus given for value is enforceable. In Thomas Vs Thomas (11) it was held that the consideration may be some benefit to the plaintiff or some detriment to the defendant. Here, the New borough Council has never made any contract with either Alex or Cool Cola co. and hence there is no consideration exists between them.
Apart from this, the defendants can raise the defense on the basis of stranger to contract. The defendant may plead that the plaintiff was a stranger to contract as the injury is caused by it worker. This is termed as’ privity of contract”.(12) If A undertook some contractual obligation towards B and the breach of such obligation by A resulted in damage to C, then C can not sue A even in tort because there was no contractual relation between the A and C. Here only parties to a contract may sue and be sued on that contract. It implies a mutuality of will and creates a legal bond or a tie between the parties to a contract. This rule is well explained in the case of Dunlop Pneumatic Tyre Co.Ltd Vs Selfridge & Co.Ltd (13). In such cases the third party who is not a party to the contract can not sue for damages. Moreover the mere carelessness on the part of the defendant does not entitle the plaintiff to sue him, it has to be proved that the defendant owed a duty of care to eth plaintiff.
The plaintiff may rebut these claims on the basis of vicariously liability, i.e. liability of the master for the tort of his servants. The master is vicariously liable for the wrong ful act done by his servant in the course of employment. (14)The liability of the master, of course, is in addition to that of the servant. In Limpus Vs London General Omnibus Co.(15) it was held that the wrongful act of eth servant is deemed to be the act of the master as well. Since for the wrong doer by the servant the master can also be made liable vicariously the plaintiff has a choice to bring an action against either or both of them. If a servant is not careful in the performance of his duties and his conduct causes any loss to a third party the master would be liable for the same. This is illustrated well in the case Williams Vs Jones. (16)
Employers are vicariously liable for the torts of their employees that are committed during the course of employment. .But here it is to be remembered that an employer will only be liable for torts which the employee commits in the course of employment. There is no single test for this, although it was held in Joel v Morison (17) that the servant must be engaged on his master’s business, not ‘on a frolic of his own’. An employer will usually be liable
11. Thomas Vs Thomas 1842 2 Q.B 851
12. Contract Law, Catherine Elliott, Frances Quinn, Pearson Education, ISBN13: 9781405846714, 2007
13 Dunlop Pneumatic Tires Co Ltd Vs Selfridge & Co Ltd 1915 A.C 847
14. J. Hodgson, J. Lewthwaite, Tort law, Oxford University Press, 2004),
15. Limpus Vs London General Omnibus Co.1862 1 H & C.526
16. Williams Vs Jones 1885 3 H & C 602
17. Joel v Morison (1834) 6 C&P 501 at 503,
for (a) wrongful acts which are actually authorized by him, and for (b) acts which are wrongful ways of doing something authorized by the employer, even if the acts themselves were expressly forbidden by the employer . In Donogue Vs Stevenson the defendant pleaded the defense that the plaintiff was a stranger to the contract and her action was not maintainable. But this fallacy was done away by allowing the consumer of drink an action against the manufacturer, between whom there was no contract.
In nutshell, we can say that the plaintiffs have valid reasons to sue the defendant for negligent act because the injury caused to the plaintiffs purely due to the omission of duty of care on the part of the defendant. They can file a complaint against both the council as the master and the workers as the servants. In contrary to this, the defendant can raise valid defenses like non contractual relationship with the plaintiff and also the defense on the basis of privity of contract which may entitle the defendants to be released from the liability
1. Macdonald, E. J. . Koffman, L Law of Contract –6th ed. Oxford University Press, ISBN#: 9780199207152, 2007
2. Elliot.C and Quinn F., Contract Law, Pearson Education, ISBN 13: 9781405846714, 2007
3. Keenan. D, Smith and Keenan’s English Law: Text and Cases 15th Ed Pearson education, ISBN13; 9781405846189, 2007
4. Hodgso. J; Lewthwaite. J, Tort law, Oxford University Press, 2004,
5. Frey. H,and Frey . A, Essentials of Contract Law, Delmar Cengage Learning; 1st edition, ISBN-10: 0766821455, 2000
6. Salmond. H., Law of Torts,, p443 publisher: Sweet ; Maxwell; 21Rev Ed edition ISBN-13: 978-0421533509, 24 Oct 1996
7. Jones. M., A text book on Tort, Ch.2, 9th ed., publ.by Oxford University Press, (2007)
8. Pollock, the law of torts, Stevenson ; Sons, Londra, 1997
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