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.
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