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#1 Posted : 02 July 2004 11:08:00(UTC)
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Posted By Rod Douglas Dear all, I wonder how many differing answers we shall get on this little ditty? You are going to work by bus. You buy a ticket (a “contract” with the bus co). During the journey, the driver collides with another vehicle and you suffer minor cuts and bruises. By the time everything is sorted out, you are very late for work. You sprint from the bus stop and trip over a paving stone ,breaking your arm. Who is, if anybody,is liable for your injuries? Aye, Rod
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#2 Posted : 02 July 2004 11:32:00(UTC)
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Posted By Danny Swygart Yep, I bet you get varied responses to this one (including "Don't play the blame game"). I would say that the injuries caused as a result of the RTA are down to the person who caused the accident (if anyone was negligent). The broken arm is your own stupid fault (provided the paving was in good nick - if not the body responsible for the pavement may have to shoulder a percentage of the liability). Aye!
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#3 Posted : 02 July 2004 11:48:00(UTC)
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Posted By John Allen Assuming that the trip was caused by a protruding or lose paving stone or an unnecessarily large gap between adjacent stones then the person with the duty for the provision and upkeep of the footpath has responsibility. It is foreseeable that persons using a footpath will run or not be paying attention all the time so the footpath “duty holder” should provide a surface which is free from protrusions likely to cause a person to trip. While there is a personal responsibility to take reasonable care for oneself this does not absolve the provider of his duty of care; it might lessen the award of compensation however due to contributory negligence. It is unlikely that the bus company or other vehicle owner could be held liable as the injury would be considered “too distant” from the collision. The conditions of your ticket may even prevent you making a claim of this sort.
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#4 Posted : 02 July 2004 11:54:00(UTC)
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Posted By David J Jones A quiet Friday morning is it Rod? Assuming your paving stone is in a pathway/pavement and is protruding above the otherwise level surface, I would have thought you may be able to say that your injury was a direct effect of the paving stone causing you to trip and break your arm, therefore allowing you to make a claim against the Local Authority (or whoever has responsibility for maintenance of the pathway). The counter argument could be that you should exercise care when travelling the highways and byeways as the paving stone may well have only been disturbed that morning and was o.k. at yesterday's inspection, in this case you could be accused of culpable negligence and have your claim modified accordingly. I don't think you could apportion any liability to the bus company for making you late in the first place - that would probably fall at the first fence. That's my two bob's worth, let's see what others think. Regards David
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#5 Posted : 02 July 2004 11:55:00(UTC)
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Posted By John Allen PS I had assumed that only the broken arm was being claimed for and there was no claim for mental trauma etc caused by the vehicle collision!
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#6 Posted : 02 July 2004 12:28:00(UTC)
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Posted By Tracey Thompson I agree with the previous responses if we assume the paving slab was faulty in some way. But if this was not the case, then is there a possibility that this person may have been suffering from shock or slight concussion from the bus accident and stumbled in the street as a result of this? This of course would have had to be diagnosed at the hospital when this person was treated for a broken arm, but concussion can come along later following a knock to the head. Maybe further investigation into the injuries this person sustained from the accident may determine this and if this was found to be the case and could be proved, then the bus company could still be liable. Tracey
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#7 Posted : 02 July 2004 12:30:00(UTC)
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Posted By Rod Douglas Tracey, That was the answer I was looking for, thanks mate. Aye, Rod D
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#8 Posted : 02 July 2004 12:33:00(UTC)
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Posted By Geof Amazes me that H&S professionals are so willingly prepared to pass legal opinions!
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#9 Posted : 02 July 2004 12:52:00(UTC)
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Posted By Rod Douglas Geof, That is all they are opinions, just like our bottoms we have one. Aye, Rod
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#10 Posted : 02 July 2004 13:08:00(UTC)
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Posted By Tracey Thompson ....and bad days of course, we all have those too! Rod...hope you solve the enquiry! Tracey
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#11 Posted : 02 July 2004 13:14:00(UTC)
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Posted By Geof But, of course, if a lawyer passed an opinion on H&S we'd all be up in arms! And poor Jeremy gets slated if he dares mention H&S. Aye
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#12 Posted : 02 July 2004 13:21:00(UTC)
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Posted By Rod Douglas Hi Geof, I knew I would get a good response out this one!! What is it you do? I am a Fire, Health & Safety Manager for a large Custodial Company. Aye, Rod
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#13 Posted : 02 July 2004 13:28:00(UTC)
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Posted By John Allen I can’t see the distinction. Health and safety exists within a legal framework. It’s a poor practitioner who can’t explain the legal considerations, whether criminal or civil of a particular event. I suppose all those lectures and seminars I thought I attended on common and statute law were just hallucinations. As for lawyers expressing opinions about H&S I assume I must also have imagined all those decided cases, Edwards, Christmas, Wilsons, Donoghue etc.
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#14 Posted : 02 July 2004 13:39:00(UTC)
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Posted By Geof You're right John. I meant (I think) non specialists passing opinions on specialist subjects. As we then get into issues of competence. My impression was a question had been asked for a legal opinion not a H&S opinion. If that was the case I suggest you contact your company lawyers rather than rely on a response from this forum. I agree all of us have opinions. Wisely some of us keep them to ourselves - possibly I should have done so this time! Geoff
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#15 Posted : 02 July 2004 13:56:00(UTC)
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Posted By John Allen Geoff It would be a poor discussion forum where no opinions were ever expressed! I work as a consultant both within the process industries and for solicitors dealing with civil claims. In the case of the former I’d regard it as a slur on my competence if a client went to his lawyer first for advice on the legal implications of an accident at work. Many company lawyers expertise is in contract law and they are the first to defer to the H&S people. However if it comes to presenting and arguing a case in court I am happy to leave that to the professional advocates. I can have an opinion on health issues too but I’m not going to take anyone’s appendix out! ;)
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#16 Posted : 02 July 2004 13:59:00(UTC)
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Posted By Martin Kingman I am a Trainee Legal Executive looking to specialise in H & S when I hopefully qualify later this year. From my legal point of view the following need to be considered: Purchase of ticket: It can be assumed that a valid contract has been formed between the Bus Company (B) and the IP (Injured Party). Is B trying to rely on any exclusion clauses in the contract? Exclusion clauses attempt to exclude liability and the following will be analysed by the judiciary: a)nature of the document – IP is only bound if a reasonable person in his position would have known that the document contained binding conditions; see Chapelton v Barry UDC [1940] - where a deckchair receipt would not be a legally binding document; b)degree of notice – B must show that they took reasonable steps to bring the clause to the attention of the IP. Note a ticket or receipt will seldom be sufficient unless attentions is specifically drawn to the terms; see Parker v South East Railway [1877]; c)time that the notice was given – they can only be part of the contract if they are incorporated before or at the time of contracting. Afterwards is not sufficient; see Olley v Marlborough Court [1949]. Therefore I believe B would find it difficult to exclude liability. Further, under the Unfair Contract Terms Act 1977 (UCTA 77) - s2 (1) liability for death or personal injury due to negligence makes the contractual term totally ineffective. NB: THIS MUST INVOLVE NEGLIGENCE The accident has occurred. Who is at fault? B or the other driver? Is there any suggestion of negligence on either party? Outside of your contractual rights the IP also has the potential for a claim in tort. Therefore there is the question of duty of care – as introduced by the Lord Aitkin who laid down the “neighbour principle” in Donoghue v Stevenson [1932]. Briefly: There must be i) a duty of care owed; ii) a breach of that duty;& iii) damage caused as a result of that breach. Is there any contributory negligence on IP’s part? (i.e. not wearing a seatbelt or sitting down.) This will not be a total defence to B but will reduce the level of damages awarded. (As John Allen states in his answer above in relation to the slab) You are late for work and you sprint from the bus stop. I am not considering the paving slab issue as this has been exhausted in previous answers. But the next issue is the remoteness of damage. Would the broken arm been suffered but for B’s breach of duty? See Barnett v Chelsea & Kensington Hospital Management Committee [1969] No I don’t think so. The IP could have been walking from the bus stop and tripped at the same point. Was the broken arm as a direct consequence of B’s breach? No Was it reasonable foreseeable as a consequence of B’s breach? No I don’t think so again. See Wagon Mound (No 1) [1961]. I believe that the broken arm caused by falling is too remote from the initial collision to find B liable. With Novus actus interveniens there has to be an intervening act to break the chain of causation. (i.e. the link between the 1st and 2nd acts.) This is where the crux of this question lies. In conclusion it is my belief that the chain of causation has been broken and it is not foreseeable from the initial incident that the second incident would occur. Therefore B cannot be responsible for the broken arm, but would be liable for injuries caused to IP whilst on the bus. Subject to the above re the accident being the other parties’ fault. (You would then have a claim against them (or their insurers in practice)) This is, of course only my opinion of how I believe the Judiciary would interpret the law. But is a brief answer to a brief question! Thanks Rod! Martin
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#17 Posted : 02 July 2004 14:06:00(UTC)
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Posted By Ron Young Was that an apology Geoff? and to an ex member of our armed forces
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#18 Posted : 02 July 2004 14:08:00(UTC)
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Posted By Rod Douglas Martin, Many thanks for your in depth reply, this will be of great help to me. And to all the people who took time out to give a response, thanks. Aye, Rod
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#19 Posted : 02 July 2004 14:08:00(UTC)
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Posted By Geof You're right Rod, everybody has a bottom.
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#20 Posted : 02 July 2004 14:17:00(UTC)
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Posted By Geof Mmmmm, not quite an apology Ron. Maybe a slight retraction in stance!!!! John, I can accept the argument that a client would discuss the fine print of H&S legislation with me/you first. But to ask me to express an opinion on different liabilities of bus companies and councils I would consider outside my remit as a H&S consultant. It would certainly be outside 'my' area of competence to advise on such things. However, it is possible I have misunderstood your point, or your legal background - if so I'm sure you'll let me know!
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#21 Posted : 02 July 2004 14:25:00(UTC)
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Posted By Ron Young Typical crabfat always walks sideways!
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#22 Posted : 02 July 2004 14:27:00(UTC)
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Posted By Sean Fraser "It would be a poor discussion forum where no opinions were ever expressed!" Unfortunately John, there have been some of us who have been trying to have a reasoned debate recently and were knocked for even discussing it! For those who feel that they don't like a particular thread and don't want to waste their time with it, then don't read it!! This forum is for everyone to use. Full debate can only take place if everyone feels that their contribution is being valued for simply contributing, even if the content is not following the general trend or consensus. If people don't want to contribute then don't do so - attacking those who are just puts them off and denies both you and them the opportunity to learn. Not directly related to this thread, sorry, but it has been annoying me over the last day or so and I still haven't really recovered. Good thing I have a sense of humour though . . . :-)
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#23 Posted : 08 July 2004 20:56:00(UTC)
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Posted By Stuart Nagle In view of the previous discussion on the bus, I comment no further. Without knowing who was responsible (the bus driver or AN Other) the question is acedemic. On the question of the trip over the paving slab however, there is need to clarify the issue in respect of highways law. Firstly, there are specific standards for maintenance of public highways in respect of the classification of highway type. For example the standard of maintenance to be expected on a footway in a town centre would be higher than say a footway on a rural road, and case law has determined what is acceptable and what is not. The rights afforded a person on the public highway are enshrined in law, being that every person has a right to pass and re-pass along a public highway and may be hindered only by obstructions that are either natural or legal. In respect of the trip there are a number of reasons why the footway may have been in a condition that resulted in a defect causing the trip, the common ones are; Tree roots, utility openings, poor reinstatement of openings/subsidence, vehicles parking on the footway, lack of maintenance by the highway authority. all or any of which could have been responsible. The highway authority have defences at law in respect of such incidents, and these include both the nature of the highway and the maintenance standards/obligations afforded to the highway type, and/or that the defect was as a result of the actions of another party and that the highway authority could not reasonably have known of the defect. The frequency that highways are inspected is governed by their classification, as referred to above, and in the case of your average estate and 'local distributor' routes, inspections are normally carried out at three monthly intervals. Only if the highway had been marked for repair by the highway authority, (determined by the cour of the marking paint) and the repair had not been carried out within a reasonable timscale (for the road classification) could the highway authority be found to be at fault to any extent. Obviously if the defect was dangerous they would/should sign and guard the defect (and also perhaps arrange for routine inspections of the signing and guarding - including out of hours inspections - until the repair was instigated). Not all footways are part of the public highway, many are private (particularly in towns and shopping centres etc) and are not maintained at public expense, therefore trying to prosecute the highway authority will be fruitless. In any such case reference should made to the highway authority's 'definitive plan' to see if the footway in question is public or private. Even if the footway is on a main thoroughfare, if it is private the highway authority have no duty at law to maintain it, but can enter and repair and re-charge the owners the expense through a legal action, or sign and guard the defect and re-coup the costs in a similar way, however this does not tend to happen in reality. Added to this of course would be the contributory negligence of a person if they, for example fell over a well signed, guarded and lit obstruction (unless, for example, they were blind and the barriers were not to the correct standard - with tapping rail etc). or an obvious defect in plain sight perhaps, obviously running at break-neck speed could be deemed as contributing to a fall. So, from the little bit of information here, you can see that all is not quite as clear as one may think, exemplified by the trainee legal exec above, and that there are many areas that need to be considered in all their glory.... Regards... Stuart
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#24 Posted : 09 July 2004 16:51:00(UTC)
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Posted By Keith Jackson There are some interesting points here. My thoughts are and have been for a long time that it is never easy to try and pre judge the result of a civil claim. Most are settled out of court merely because it is cheaper to pay up. I'm sure this has contributed to the claims culture we have. If this is a real case I would like to know the final outcome.
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#25 Posted : 09 July 2004 17:20:00(UTC)
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Posted By Geof Which always amazes me that H&S professionals are so willingly prepared to pass legal opinions!!!
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#26 Posted : 10 July 2004 04:30:00(UTC)
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Posted By Richard Spencer I would think that a good Plaintiff lawyer in ‘pubic liability’ would sue the local council or road traffic authority. If the medical evidence supported a concussion, the bus company would become the 1st or 2nd Defendant. The footpath would need to be examined to determine the trip point was not outside that laid down by local Ordinance and/or Standards. If it met the guideline limit for a continuos footpath, then ‘you’ve got no chance’. Then there is the question of did he trip or slip, was he pushed. Was he sober, under the influence of a narcotic or hypnotic and did he have a history of mental illness or some other medical aliment that related to perceptual skills. Finally at what time did this event occur was it dark at the time and what the friction value of the foot path (if slip) at the time? Easy to jump to conclusions – but looses cases Richard
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