This case falls under ‘negligence’ under tort and is of ‘civil’ in nature. Negligence means guilty conduct since it is not fall under the legal customary thereby safeguarding individuals against probable risk, harmful act of another subject of the society. Thus negligent behaviour towards others offers them rights to be compensated for the injury caused to their body, In the case of Caparo v.
Dickman, it was held that harm should have three components. There should be relationship of closeness between the injured and the other party, it should be logically anticipated and it must be ‘just, fair and reasonable to inflict liability.In tort, no liability under negligence can be established unless the injured establishes that he owed a duty of care by the defendant and that can prove that there has been a breach of duty. The injured has to prove that there is negligence and to establish on the balance of probabilities, the defendant is in obligation a duty of care and had he infringed that duty and in acting so, inflicted damage or loss to the claimant that ought to be reimbursed by the award of damages .
In this case, Tanya took the flat for lease for seven years from Simon. Though the lease covanants clearly specifies that Simon would not be liable for any maintenance or repair and that he would not accept liability to any tenant or anyone else for injury or damage caused by any defect in the premises, let or retained. But this clause is against natural justice , and violates the provisions of the Defective Premises Act, 1972 and the provisions of the Landlord and Tenant Act ,1985.It is to be noted that in some limited situations and extraordinary circumstances, an injured may be able to rely on res ipsa loquitur (‘the things speaks for itself’).
Under this provision, defendant has the primary liability to prove that he was not negligent. On the basis of this rule of evidence , the mere reality that an accident occurring increases the presumption of the defendant’s negligence ,so that a prima facie case subsists It was held in the case Ballard v North British Railways that one may assume . negligence from the mere fact that occurs.The situation where the “Res Ipsa Lqquitur “can be applied: For the applicability of the above maxim, the satisfaction of three conditions is essential.
In Easson v Lner, it was held that the defendant must have control over the situations that inflicted damages. In Scott v. London and St. Katherine Docks, it was laid down that the accident should be such that would not normally occur without negligence.
Further, in Barkway v South Wales Transport, it was held that unknown causes must have triggered the accident.Here Tanya could claim damages under ‘negligence’ under tort by applying the maxim “Res Ipsa Lqquitur “ as her case is satisfying all the relevant conditions specified above ; The accident has occurred due to careless of the building contractor and the building owner. If the defendant, Simon, had been alert, he would have established controls and made inspections while the flat is being constructed and would have detected the defects in the cement used in the construction.He had not acted judiciously and because of his negligence only the accident has occurred.
Though he can defend his case by citing the clause in the lease agreement that he would not be liable for any maintenance or repair and that he would not accept liability to any tenant or anyone else for injury or damage caused by any defect in the premises, let or retained. Simon, being the owner, had the moral responsibility to such injuries as it had occurred out of his negligence .He can not escape from his liability by citing or quoting the restrictive covenants in the lease agreement which offers immunity against damages for any accident in the flat which are against the provisions of the Defective Premises Act, 1972 and the Landlord and Tenant Act,1985. The situation satisfies the conditions stipulated in the maxim ‘RES IPSA LOQUITUR’ the accident must be such that it would not normally happen without negligence.
Here Simon has acted in utter negligence and hence accident has occurred The UK law of tort shifts the onus on the defendant to prove that he has acted diligently and not negligently.Thus the maxim ‘RES IPSA LOQUITUR’ provides prima facie interference of negligence which mandates the defendant to offer a rational explanation of how the accident could have transpired with out negligence on his part. Here Simon may argue that he can not be held liable as he was entrusted the work to a contractor and if at all, the contractor has to pay the damages as he was acted negligently. The court may not accept his.
Had the Simon acted diligently, he would have discovered that the contractor is using defective cement at the construction stage itself and could have effected corrective measures at that point of time itself.He may sue the contractor for using defective cement in the construction separately and claim damages for the breach of conditions in the contract for building the flat with the building contractor. The Maxim ‘Res Ipsa Loquitur’ provides that if the defendant offers an elucidation of how accident could have occurred without negligence on his part and if the defendant is able to offer an explanation, in such case, the inference is rebutted and the claimant must prove the defendant’s negligence. Here also, Simon can not prove to the court that he has act diligently with out negligence on his part.
This has been laid down in Colvilles Ltd v Devine. The Maxim ‘Res Ipsa Loquitur’ also overturns the burden of proof requiring the defendant to establish that the injury was not caused by his failure to take rational care as it was laid in the cases , Ward v Tesco Stores and Henderson v Henry Jenkins & Sons . But in Ng Chun Pui v Lee Chuen, the Privy Council held that the plaintiff or claimant has the onus to establish the burden of negligence throughout the case and burden of proof does not shift to the defendant.As per this ruling also, Tanya is having strong case to prove that Simon had acted negligently and due to such negligence, the accident has occurred and hence Simon is liable to pay the damages.
Tanya has the strong case against Simon as Simon has fallen below the standards of the ordinary reasonable man in this specific situation. Simon has just kept quiet by not inspecting or overseeing the work at the time of construction of the flat. The actions of the Simon prove that Simon has acted negligently which the reasonable person would not do.Further Simon failed to inspect the quality of the cement used at the time of construction which the normal man would do.
These observations were made by Alderson B in the case Blyth v Birmingham Waterworks Co. In the case, Hall v Brooklands Auto Racing Club also, the definition of an ‘average man ‘has been explained. Thus the most famous definition of the reasonable man is that the average man, the ordinary man or the man on the Clapham omnibus. Tanya has the strong case as the Court will decide if the defendant falls below the standard of the average man.
It was held in Nettleship v Weston that the standard of care anticipated from this hypothetical Simon is objective. It will not look into disadvantages of the defendant. The decision laid down in Wells v Cooper will help the Tanya to prove that Simon was negligent and liable for the damages. In this case, it was held that a householder doing DIY work not fall below the standard of care to be anticipated from a reasonably competent carpenter in doing the work.
Further it satisfies another condition that the cause of the accident should be unknown. An action against owners of the property under section 1 (1) of the Occupier’s Liability Act, 1957 can be brought. According to the provisions of this section, an occupier has the responsibility for his visitor’s injury. Hence Ursula can sue Simon to pay damages under the above provisions and UK Tort Act for the negligence.
In Wilson v Lombank Ltd, it was held that aim to act was required in tort. The act also should cause damages.Liability under Defective Premises Act, 1972: The builder has the moral duty and obligations under the Defective premises Act, 1972. Under this Act, any person who builds a dwelling house owes a duty to every person who acquires an interest in the dwelling.
Here Tanya as a lessee acquires right under this act and the builder and Simon owes a duty to her. Further the Act states that the builder has to build the flat in a professional manner with proper materials and it should be fit for habitation.The provisions of these Act imposes a statutory duty upon builders. The conditions are more similar under common law in building contracts that the building shall be erected in a workmanlike manner with proper materials and should be fit for human habitation.
Thus liability of the builder is of non –feasance as well as for misfeasance. Section 6 (2) of the above Act stipulates that failure to carry out necessary work as well as carrying it out badly and this was laid down in Andrew v Schooling.It is pertinent to note there exists a protection scheme which is offered by the UK’s National House –Builders Registration council, under which the builder gives warranties in favour of purchaser and his successors in title and the Council guarantees the builder’s obligations up to a maximum liability. For conditions implied in certain contract for the letting of small house includes certain restrictions as stipulated in the Landlord and Tenant Act ,1985 like tenant can not have the rights like assigning , under letting , charging and parting with possession of premises without consent of the landlord.
But Simon can not impose conditions such as he is not liable for any injury caused due to defect in the flat which is against the remedies available under common law. The Defective premises act of 1972 excludes the special immunity enjoyed at common law by a vendor or lessor of land from liability for his own negligent acts committed before the sale or letting out the premises. Thus if the building contractor who executes the work negligently, he is liable for injury caused by his negligence even after he had relinquished the control of the premises.One another option available to Simon is to insure against the risk of injury to the tenants and visitors to the flat.
In case of any accident, he can claim the damages from the insurance company and to pay the compensation to the injured tenants or visitors to the flat. In view of the above and in light of the various judicial decisions mentioned above, Simon’s is liable under UK Tort Act to pay damages for the injury suffered by Tanya and Ursula.