Intort of negligence, the claimant must prove that they suffered harm because thedefendant did or failed to do something. To establish liability of the defendant,it is required that the following components are sustainable before anegligence claim; there was a duty of care that ought to have been provided bythe defendant to the claimant, there was a breach in this duty of care, and dueto the violation the claimant suffered damage as a foreseeable consequence1.To establish whether BBC and Francine are liable for negligence and whetherthey have a defense, the following is observed.First,it should be established whether BBC and Francine owed Emma or Sarge a duty ofcare. In Donoghue v Stevenson (1932),it was determined that a person owed a duty of care to another if they couldforesee that their action might affect the other person.
As a result, theneighbour principle was established. To establish the existence of the duty ofcare, it would be required that the test of reasonable foreseeability isapplied2.The question here is whether; BBC and Francine would foresee the damage thatwould result from their action of letting Emma and Sarge on stage on thatnight. It may be argued that following theirforeseeability on possible damages on stage, Francine had required that Emmaand Sarge meet her for a “safety briefing” which Emma had failed toattend.
However, in Chapman v Hearse1961, it was established that the defendant was liable for negligence becausehe failed to apply the necessary control while driving causing damages to theplaintiff. Same applies to the case of Francine but not BBC because she wasaware that Emma had not attended the briefing but let her on stage anyway.Therefore, while both BBC and Francine could foresee the damage due to the holeon stage, Francine failed further, and as such, they were both liable fornegligence.Secondly,Francine and BBC could be held liable for negligence if it was proved that thecare of duty had been breached. To determine the breach, the law requires proofthat a reasonable person would have foreseen the harm and that the defendantcould have taken necessary steps to prevent it3.
To substantiate a breach of a duty of care, a standard of care test is requiredto determine a reasonable person4.In the current case, the liable party is Francine and BBC, and on the questionof whether based on the standard of care test, they have the requirements to bereferred as reasonable, and the answer is yes. The reason is that BBC owns theshow and the stage while Francine is the stage director. This means that bothparties were aware of the hole and thus were responsible for informing Emma andSarge about the whole and also provided due guidance on how to navigate onstage to avoid harm. In Overseas Tankship(UK) Ltd v The Miller Steamship Co 1967, the case was concerned on the testfor breach of the duty of care of the defendant. It was held that a reasonableperson in the position of the welders working on the defendant’s ship wouldascertain the risk of fire. Accordingly, on the liability for negligence due toa breach of the duty of care, BBC and Francine were liable.Thirdly,to prove liability for negligence, the claim must prove the existence of aproximate relationship between the claimant and the defendant to impose theduty of care.
This requirement considers the concept of closeness that may becausal, circumstantial or physical5.Regarding the current case, the question is whether the relationship between thegrieved parties and BBC and Francine has a sufficiently proximate to result ina duty of care. In Nagle v RottnestIsland Authority 1993, the court established that there was proximityconsidering that it was the Board that had a responsibility to the peopleattending the basis, and although the claimant was a member of the Board, itwas still the responsibility of the Board to ensure the safety of the claimant.
This applies to the duty of care due to proximity to Sarge despite the factthat he is an employee of BBC and would probably have known about the hole.DefensesOnthe question of whether Francine and BBC would have any defenses, the answer isyes, and this is based on contributory negligence. Contributory negligence issaid to have occurred if the behaviour of a claimant is below the necessarystandard for their safety and when cooperated with the negligence if thedefendant causes harm to the plaintiff6.
In two circumstances, contributory negligence can be proved in the currentcase. First, Emma failed to attend the “safety briefing” which she was awarethat it was necessary for her safety while on stage and secondly, both Emma andSarge were drunk when they came to stage and as such they were not in the beststate of mind to judge situations in a way to avoid accidents. In Butter v Forrester 1809, it was ruledthat the damages suffered by the claimant were as a result of contributorynegligence. As a result, it was established that the claimant failed to employordinary caution and, therefore, barred from compensation. 1Oliphant K.
Against Certainty in Tort Law. Tort Law: Challenging Orthodoxy (Oxford, 2013). 2White GE.The Emergence and Doctrinal Development of Tort Law, 1870-1930. (U. St.
ThomasLJ. 2013); 11:463. 3Cane P,Atiyah PS.
Atiyah’s accidents, compensation, and the law (Cambridge UniversityPress; 2013 Feb 28). 4Miller AD,Perry R. ‘The reasonable person.’ (NYUL Rev.
, 2012); 87:323. 5 StychinCF. ‘The vulnerable subject of negligence law.
‘ (International Journal of Lawin Context, 2012 Sep); 8(3):337-53. 6Zipursky BC.’Palsgraf, Punitive Damages, and Preemption.
‘ (Harvard Law Review. 2012 May 1);125(7):1757-97.