tortious liability? help me please

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MagdaR
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#1
Report Thread starter 6 years ago
#1
Hi,

there was a fire in B's house, which broke out as a result of defective coffee machine. Fire operator instructed B to put wet towells until the fire brigade arrives. As a result, B burned her hands even more. The report suggested that fire operator should instruct B to leave the house and wet towells made things even worse, because it burned hands of B.

Would fire operator be liable (i guess that yes)? I have problem with finding case law with this situation, could anyone help me?
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GeneralStudent95
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#2
Report 6 years ago
#2
It is a standard negligence claim where you have to establish:

(1) Duty
(2) Breach
(3) Causation

In relation to duty, I would think it is quite straightforward under Caparo that there is a duty if you can find no analogous situations in the case law. I would take a look at the very recent case of Michael v South Wales Police which considered a scenario relating to a telephone dispatch officer at a police station; it may be useful in guiding you in relation to the policy concerns.

In relation to breach, you are applying the Bolam test because the operator is professing to practice a particular skill within their occupation. I think there is clear breach here unless some other operator would have done the same thing; it is of note that the report is not in itself conclusive. If the operator could find other professionals who would have given the same advice as they did then there will be no breach.

In relation to causation, I think it is pretty clear under "but for"

That is a very brief sketch, but you need to go into detail and consider each of these things in light of the relevant case law. You should also consider if there would be any defences available.
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MagdaR
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#3
Report Thread starter 6 years ago
#3
Thank you very much for your help, it really helped me! I have one more question.

A fire did not reach the flat that was under the one that was on fire, but it was damaged by water from the fire hoses. A person who lives in this flat has his laptop and important paperwork destroyed due to the water. The owner of the flat is diagnosed with pyrophobia (acute and irrational fear of fire) and refuses to use his gas cooker, his heating or even drive in his car.

Does this person have any claim? if so who should be responsible? I was thinking about nervous shock and the owner of the flat as a primary victim. What do you think? I would use for example Page v Smith.

I am really sorry, I am not native British but I study British law in Czech Republic and I have some problems with finding the proper answers and case law.
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GeneralStudent95
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#4
Report 6 years ago
#4
(Original post by MagdaR)
Thank you very much for your help, it really helped me! I have one more question.

A fire did not reach the flat that was under the one that was on fire, but it was damaged by water from the fire hoses. A person who lives in this flat has his laptop and important paperwork destroyed due to the water. The owner of the flat is diagnosed with pyrophobia (acute and irrational fear of fire) and refuses to use his gas cooker, his heating or even drive in his car.

Does this person have any claim? if so who should be responsible? I was thinking about nervous shock and the owner of the flat as a primary victim. What do you think? I would use for example Page v Smith.

I am really sorry, I am not native British but I study British law in Czech Republic and I have some problems with finding the proper answers and case law.
Yeah, you would be considering whether the individual was a primary victim. In other words you need to prove, under Page v Smith, whether the individual was in a zone of "foreseeable physical danger" and it was reasonable to assume that such a danger was being posed.

The first hurdle is to prove that the individual has a recognised psychiatric illness as opposed to mere distress or grief; this is clearly established.

The question of foreseeable physical danger is a question of fact, to an extent. You should look for relevant primary victim case law to get some more facts that may help your arguments. Essentially the question is whether the reaction which caused the psychiatric illness was a reasonable response to being in an actual or perceived zone of foreseeable physical danger. In this instance the only indication of danger seems to be the initiation of fire hoses; is this enough?

If I was you I would read McFarlane v Caledonia [1993] EWCA Civ 13, in particular the paragraphs beginning at: "There are I think basically three situations in which a plaintiff may be a participant when he sustains psychiatric injury through fear of physical injury to himself."
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MagdaR
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#5
Report Thread starter 6 years ago
#5
And one more question:

Manufacturer of the coffee machine gave poorly translated instruction from chinese, but A did not bother to read it. A left the machine on standby mode and after 2 hours the machine caused fire. The report showed that the machine could have had a technical flaw which caused a fire.

Would the manufacturer be liable? I thought about Consumer Protection Act 1987 and Donoghue vs. Stevenson neighbour test (to establish wheter there was duty of care). How should I approach manufacturer's liability and should I give as a defence that A did not bother to read the instruction?

Thanks for help, I promise it is the last question
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MagdaR
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#6
Report Thread starter 6 years ago
#6
??
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GeneralStudent95
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#7
Report 6 years ago
#7
(Original post by MagdaR)
And one more question:

Manufacturer of the coffee machine gave poorly translated instruction from chinese, but A did not bother to read it. A left the machine on standby mode and after 2 hours the machine caused fire. The report showed that the machine could have had a technical flaw which caused a fire.

Would the manufacturer be liable? I thought about Consumer Protection Act 1987 and Donoghue vs. Stevenson neighbour test (to establish wheter there was duty of care). How should I approach manufacturer's liability and should I give as a defence that A did not bother to read the instruction?

Thanks for help, I promise it is the last question
We didn't specifically cover Manufacturer's Liability in our Tort course; I couldn't give you an accurate answer unless I looked up the law in that area.
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cognito_08
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#8
Report 6 years ago
#8
(Original post by MagdaR)
And one more question:

Manufacturer of the coffee machine gave poorly translated instruction from chinese, but A did not bother to read it. A left the machine on standby mode and after 2 hours the machine caused fire. The report showed that the machine could have had a technical flaw which caused a fire.

Would the manufacturer be liable? I thought about Consumer Protection Act 1987 and Donoghue vs. Stevenson neighbour test (to establish wheter there was duty of care). How should I approach manufacturer's liability and should I give as a defence that A did not bother to read the instruction?

Thanks for help, I promise it is the last question
Yes.

A potential claim under CPA.
And then a potential common law claim from the "narrow rule" in D v S whether a manufacturer owes a duty of care to the consuner.
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