Tort: A question of Negligence and liability

Shauna and Ben are volunteers. Shauna is very experienced and Ben is not. They agreed to help supervise a group of children at a local community centre for the duration of the project (2 weeks). The community centre agreed to allow a project to build a replica ‘historic’ village. In this village they also had to construct a kiln. Sticks and mud was used to construct the village and the kiln. At the end of the project the grand finale was to be the lighting of the kiln 

Brothers Wayne and Ryan were taking part in the project, and on the first Friday asked Ben  if they could come back to the centre on the Saturday to finish building the kiln, unsure of whether this would be a good idea, Ben told the boys to ask Shauna. Shauna was in a rush to get out, and when the boys asked her she failed to stop and listen to what they were asking, and instead replied “yeah sure, no problem”.

The boys returned on the Saturday and finished building the kiln. They decided to load the kiln with clay and light it. They sealed the kiln with more mud- as shown by Shauna earlier that week. However they had built the fire too big and stacked the pottery incorrectly, consequently the damp clay caused a build up of steam and when Wayne went to check the clay the kiln exploded in his face. 

He screamed and ran shouting for help. Maurice lives next door to the centre and witnessed the accident, but failed to call for help. 

Wayne was left scarred and significantly disabled. The medical evidence showed that if he had been helped sooner the injuries would not have been so bad.

Both Ben and Shauna said they never thought that the boys would finish building the kiln and they never imagined them lighting it.

Who is liable??

Potential claimants: Wayne (13) is the only one who has suffered an injury, it is not stated that Ryan has suffered any sort of psychiatric harm.

Potential defendants: Ben, Shauna and Maurice. The community centre cannot be sued for vicarious liability as they did not employ the defendants. 

This appears to be a claim in negligence. For a claim in negligence the claimant needs to prove that there was a duty of care owed, that the duty was breached and that the damage or injury occurred as a result of that breach of duty. 

***This only covers the first two requirements, I will post the last (causation) next week***

Wayne- Ben:

From the facts it is not possible to infer a definite duty of care between Ben and the children. This is because the volunteers are not trained or certified and they are not being paid. These facts distinguish this situation from cases such as the Home Office v Dorset Yacht Co Ltd (1970) where a group of young offenders were chaperoned on a trip to a harbour  At night the guards in charge of the young men went to bed and left the young boys, who escaped and stole a yacht, which they crashed into another yacht. The guards breach their duty of care when they failed to maintain an appropriate level supervision.

A duty of care arises when one party owes another a duty not to act in such a way that could cause them harm. There are many duty situations that have already been established by the courts, such as a driver to a driver or a doctor to a patient and there are many more. As the facts in this situation are not close enough to an already established duty situation the Caparo test needs to be applied (although it may be argued that this duty is akin to the duty that a teacher owes a student, although for our purposes we will use the Caparo test for the sake of using it). There are three limbs to the Caparo test and if all three are satisfied then a duty is present. The first condition is that there must  be reasonable foresight of harm. One could argue that it was a virtual certainty that young boys of ten and eleven years old would be mischievous and  attempt to not only finish building the kiln, but also light it, this is subjective of course. The second requirement is that there must be sufficient proximity of relationship. In the present situation Ben has volunteered to  supervise the children, to fulfil this role he needs to have a strong degree of proximity between him and the children to fulfil his role, like that on a teacher and a student. Lastly, it needs to be fair, just and reasonable to impose that duty on the duty on the defendant. In this case, policy is likely to prevail over fairness. The court may decide that it is in the pubic’s interest that adults choosing to supervise children should be bound by a duty of care.

Having satisfied the above conditions, we will now consider the breach. For a breach of duty to be recognised at law, the claimant will have to prove that the defendant did not meet the standard required by law. In this case Ben would be expected to reach the standard of the reasonable unqualified volunteer, regardless of the fact that he may not be as experienced as Shauna. It is clear from the statement that Ben, unsure of whether this would be okay asked the boys to ask Shauna. By doing this Ben discharged his duty and passed it onto someone more experienced, Shauna.

So Ben is out of the picture having passed in to Shauna.

Wayne- Shauna

We have already established that a duty of care exists above so we will go straight to the breach. 

From the statement it is clear that Shauna was in a rush to get out and had not paid attention to everything that boys had asked. She failed to reach the standard of a reasonable volunteer by not weighing up the consequences of the boys proposed conduct and providing an informed and reasonable decision. She could have said no to the boys or  arranged alternative supervision. Neither of these would have been difficult or expensive.

Wayne - Maurice

It is not likely that a duty of care will be imposed on Maurice as Stovin v Wise (1996) states that you do not owe a duty to the world for omissions. So Maurice would not be liable for not phoning the police.

Equity & Trusts: A gift scenario

(A) wrote to (B) (his daughter), "I am giving you my shares in Jimmy's Bakery ltd. I will sort out the paperwork and let you know when it is ready."

(A) died a couple of weeks later, leaving his will which left all his estate to his wife (C). The shares in Jimmy's Bakery were still registered in (A)'s name, although among (A)'s paperwork was a stock transfer form in favour of (B), signed by (A).

Who gets the shares, (B) or (C)??

In this situation it appears that (A)was trying to make a gift. From the facts provided one can infer that 3 of the 4 requirements have been satisfied (from the facts); (A) appears to have a satisfactory mental capacity to make such a gift; (A)‘s intention can be reasonably drawn from his letter to (B) and the subject matter and object has been clearly identified. The gift fails on the final requirement of a valid gift which is the gift must be transferred using the correct formalities.

For this gift of share to be complete at law (A) would need to complete a stock transfer form and post this, together with his share certificate to the holding company (Stock Transfer Act 1963). The company would then transfer the legal title of the shares to the new owner that (A) had specified in the stock transfer form.

Clearly (A) has failed to transfer the shares to (B), but does (B) have a chance of getting their hands on the shares?

There are exceptions that should be explored when dealing with an imperfect gift that could allow (B) to acquire the legal title of the property and stop the gift being distributed to the other beneficiaries mentioned in (A)’s will. 

The every effort test established in Re Rose states: If the donor has done everything to divest himself of the property in question, than the gift will be complete in equity (or something to that effect). (A) has done everything in his power to divest himself of the trust property; (A) neglected to send the certificate and the transfer form to the company to transfer the legal title to (A). In light of these facts the rule in Re Rose does not apply to the  current case. 

The next avenue we will explore for (B) will be the exception in Pennington v Wain (2002). Similarly to the Re Rose this case involved a donor that had done everything she could do to complete the gift, so much so that it would have been unconscionable for the company to retract the gift. However this case should be distinguished from the present situation for two reasons: firstly, as mentioned above (A) did not send the relevant forms off to the holding company, and secondly (A) did not tell the company about his intention to make a gift to (B).

(B) has one more shot to perfect this imperfect gift by using the rule in Strong v Bird. This

rule sets out three criteria, which if satisfied activates the rule. The three conditions are: the Donor must have intended to make an immediate gift inter vivo (in lifetime)(Re Freeland 1952); the donor must have had that intention up until his/her death; and the donor appointed the donee as the executor or the administrator in their will. 

This situation satisfies the first two conditions set out above in Strong v Bird, or more accurately, on the facts the this situation satisfies the those conditions. The last condition requiring (B) to have been appointed the executor or the administrator to (A)’s estate is unobtainable from the facts provided. 

In conclusion if (B) has been appointed the executor or administrator (or the personal representative) of (A)’s estate the legal title will, by an operation of law, transfer to (B) completing the gift. Conversely if (B) has not been named as (A)’s personal representative the gift fails and along with the rest of (A)’s estate will be inherited by (C).

Additional information required: the question does not make it clear when the will was created. This may be helpful in establishing whether or  (A)’s intention remained the same up until his death. For example if (A) had mad the will after promising (B) the shares one could infer that he still believed the shares were in fact his to leave to (C) in his estate, in which case it could be inferred that his intention to give (B) his shares had changed, which would void the gift Re Gonin 1979.

If you have any thoughts on what's above please comment ;-)