Scenario 2

Fatima works at the Kempston 'Living History' Museum as a part-time assistant. Her agreement with the museum provides that she is self-employed. It also states that she is free to either accept or reject work when it is offered to her and that she can decide when to take holidays. She is only paid for the hours she actually works. She is supplied with a uniform which she has to wear and she is required to obey the reasonable orders of the museum's manager. For the last two years she has always worked on Saturdays and Sundays and has been offered extra hours during school holidays (including half-term holidays). On 23 October 2013, during half-term, Georgina, a girl in a wheelchair, was visiting the museum with her mother, Harriet. Harriet was pushing Georgina's wheelchair. There were steps leading from the entrance hall into the museum and a lift for wheelchair users. Fatima helped Georgina and her mother to use the lift. When Fatima shut the gate of the lift, she unfortunately closed its on Georgina's fingers and fractured Georgina's finger.

Scenario 2 Questions 1.

1 Explain the legal tests for establishing whether or not a duty of care exists in negligence with case (9 marks)

2 Applying these tests, explain whether Fatima owes a duty of care to Georgina with case (5 marks)

(Total: 14 marks)

3) what a claimant must show to establish that a tort was committed in the 'course of employment'; (4 marks)

4) who may be liable to Georgina for the injury caused to her finger if Fatima is held to be an employee of the museum. (4 marks)

1Explain the legal tests for establishing whether or not a duty of care exists in negligence with case (9 marks)

A duty of care is a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. Duty of care may be considered a formalization of the social contract, the implicit responsibilities held by individuals towards others within society. It is the first element that must be established to proceed with an action in negligence. The claimant must be able to show a duty of care imposed by law which the defendant has breached. In turn, breaching a duty may subject an individual to liability.

The test is made up of foreseeability, proximity and fairness. This first foreseeability stage revolves around whether it is foreseeable that the defendant's carelessness could cause damage to the claimant.

Step-by-step explanation

The legal tests for establishing whether or not a duty of care exists in negligence with case include:

a) Duty

When assessing a negligence claim, the first step is to look to see whether or not the defendant owed the plaintiff a legal duty of care.

b) Breach of Duty

It is good to look to see whether the defendant breached this duty by doing or not doing something that a "reasonably prudent person" would do under similar circumstances.

c) Causation 

The plaintiff show that the defendant's negligence actually caused his or her injury.

For instance it was the defendant's actions or inaction that actually caused the plaintiff's injury

d) Damages 

It requires that the court be able to compensate the plaintiff for his or her injury usually through monetary compensation for expenses such as medical care or property repair.

2 Applying these tests, explain whether Fatima owes a duty of care to Georgina with case (5 marks)

Truly, Fatima owes a duty of care to Georgina because the careless person is legally liable for any resulting harm. Also the plaintiff was harmed or injured as a result of Fatima's actions. Therefore it is good to determine whether the risk of injury or harm to the claimant is reasonably foreseeable, whether there is sufficient proximity between the parties, it is fair, just and reasonable, on public policy grounds, to impose a duty of care. The existence of a duty of care depends on the type of loss and different legal tests apply to different losses.

(Total: 14 marks)

3) what a claimant must show to establish that a tort was committed in the 'course of employment'; (4 marks)

When someone acts in a careless way and causes an injury to another person, under the legal principle of "negligence" the careless person will be legally liable for any resulting harm. This basis for assessing and determining fault is utilized in most disputes involving an accident or injury.

4 who may be liable to Georgina for the injury caused to her finger if Fatima is held to be an employee of the museum. (4 marks)

Fatima will be liable for Georgina's injury because she is the one who negligently shut the gate of the lift, and unfortunately closed it on Georgina's fingers. A failure to take such care can result in the defendant being liable to pay damages to a party who is injured or suffers loss as a result of their breach of duty of care. Therefore it is necessary for the claimant to establish that the defendant owed them a duty of care.