Baby Pram Breaks, Kylie's Nanny in the Line of Fire - Case Study

Introduction

The facts of the case at hand are that pon returning to work, Kylie employed a nanny (or the claimant) to look after her baby. In the fateful day, the claimant took the baby out for a walk to a nearby park using a new and expensive pram that Kylie mother, Kris, had bought. During the walk, she came across a pond with some ducks swimming in it. She put on the pram's brakes to stop at the pond so that the baby may take a closer look at the ducks. On engaging the brakes, a cable snapped and cut her hand, causing her an injury that required surgery and admission to hospital for a week. As a result, the nanny missed a pre-arranged family vacation, which cost PS4,000.

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This legal advice refers to the above account. It includes the response on whether the nanny has any actionable claim in the tort of negligence, the party to whom the claim is against, the legal remedies available to her, and the best procedure the nanny can pursue the claim without having to institute a lawsuit. For the sake of clarity and organization, this response is divided into different sections as follows:

• Whether the Claimant has a Right of Action in Negligence
• A claim in negligence only arises if the claimant can prove the defendant owed her a duty of care, which the defendant breached, resulting in her suffering some injury.

Duty of Care

The first element to prove for a claim in negligence is whether the defendant owed the claimant a duty of care. According to Lord Atkin, in Donoghue v Stevenson (1932) A.C. 562 at 580, a claim in the tort of negligence only exists if the defendant and the claimant are in a relationship that gives "rise to a duty of care." Lord Atkin defined the duty of care as the reasonable precaution the one ought to take not to injure by not omitting or committing acts that would injure his/her neighbour. He further specified that a neighbour as the person who is closely and directly affected by our acts or omissions that we ought to think of them when we are thinking of the acts or omissions under review. This principle, which has since been christened the "neighbour principle," led the court to the general conclusion of law that "that manufacturers owe a duty not to cause physical damage to the ultimate consumers of their products" and the victim of the act or omission must be foreseeable (Peel et al., 2014, p. 5-016 - 5-017). Lord Atkin provided that manufacturers who sell their products expecting clients will use them in the form they find them when buying them should take reasonable care to ensure that the product will be safe if they believe any defect could result in injury and the consumer would not undertake any inspections before using them (Donoghue v Stevenson [1932] A.C. at 599).

In Caparo Industries Plc v Dickman [1990] 2 A.C. 605, the court provided a three-stage guideline to test for duty of care. These are foreseeability of causing a loss, proximity, and fair, just, and reasonable (Peel et al., 2014, p. 5-016 - 5-017). The first factor of foreseeability provides that a duty of care relationship exists if it is reasonably foreseeable a negligent act or omission will harm the claimant. It follows that the questions regarding whether a claimant is foreseeable or not are ones of fact, and the claimant could be a part of a group of people whom a reasonable person would foresee that his/her acts or omissions would probably harm. As for proximity, the court held that the defendant and must be either in physical proximity or some relational nearness that the claimant can show the duty was owed to them not anyone else. Lastly, the court held that a duty of care would be deemed to exist if it is fair, just, and reasonable to assign it. For instance, if finding for duty of care will cause the defendant immensely suffer from liabilities of indefinite amount and class indefinitely (Cooke, 2015, p. 51).

Breach Duty of Care

The second element that a claim in negligence requires to succeed is that the defendant breached the duty of care. The test for this factor considers the failure by the defendant to take reasonable care as a rational person would do. In this case, the court will first ponder the likelihood that a breach will cause harm for it held in Bolton v Stone 1 All ER 1078 that the less likely it is that harm will occur, the more likely the reasonable man will overlook it and vice versa.

The second factor is the seriousness of the harm as was demonstrated in Paris v Stepney BC [1951] AC 367 157. The third issue that the court will consider is the costs of taking precaution, which balances between the degree of risk of harm and cost. If it considers the cost to be so high and the harm to be less severe that no reasonable man could have considered paying for precautions, the court will not find the defendant to have breached the duty of care. However, if the risk is too high, it is reasonably foreseeable that an act or omission will cause severe damage, and the court will not absolve the defendant of liability for the reason of high cost.

The Breach Caused the Claimant to Suffer Some Actionable Injury

The court might find the existence of a duty of care its breach but still absolve the defendant if the breach did not lead to consequential actionable loss to the claimant. The claimant must prove that the breach caused the damage since this element is not actionable per se. It follows that claimants in negligence must prove that the defendant's breach caused the damage and that the loss is not too remote (Cooke, 2015, p. 166).

The court uses the "but for" test to determine whether the breach in issue caused the harm as held in Barnett v Chelsea & Kensington Hospital Committee (1969) 1 QB 428. The "but for" test helps in determining whether A's negligent act or omission instigated B to suffer some damage by first considering whether that damage would not have happened but for A's act or omission (McBride and Bagshaw, 2018, 260).

The Legal Advise

Did the Defendant Owe the Claimant a Duty of Care?

The claimant was employed to look after her employer's baby. The baby was bought a pram to aid its movement in the company of an older person. Because moving from place to place with a baby usually is a part of what nannies do, it is reasonably foreseeable that the nanny could be one of the end-users of the pram. Additionally, parents or guardians who buy strollers for their babies do not ordinarily have devices to measure whether the strollers' brakes cables are of sufficient strength. Thus, it is fair, just, and reasonable to assign the responsibility to perform all reasonable safety measures on prams (to ensure brake cables do not snap upon putting brakes on) to manufacturers for they should reasonably expect their customers buy prams to use them in the state they find them in the shop. Therefore, the manufacturer of the pram owed the nanny, as a part of the class of possible end-users of it (for it could be the baby's parents or elder siblings), a duty to ensure the pram did not have defective parts that could harm her.

Did the Defendant Breach the Duty of Care?

The pram was an expensive one. Therefore, it is must have been of premium quality for it is customary for people to pay more for quality products and avoid sub-standard ones. Also, manufacturers charge more for a product they deem to be first-class for they assure they made them with quality materials. The extra they charge also help them undertake additional quality assurance measures before shipping them to their clients. Additionally, it is not customary for brake cables of a usual stroller to snap, leave alone a premium one, upon engaging its brakes. However, the brake cable for the pram that the claimant used did snap. It, therefore, follows that the defendant must have overlooked some quality inspections when assembling the pram. Moreover, since putting on the brake makes the cable taut, the defendant should have reasonably expected that if it could hit either the baby or the one pushing it with much force if it snaps. Since the cable is metallic, the defendant should have had rational foresight that if it hit human flesh with force, it is bound to cause grievous bodily harm.

Did the Breach Cause the Claimant to Suffer Some Actionable Injury?

The claimant was injured when the pram's cable snapped. The injury the claimant sustained should not have happened but for the cable breaking. Therefore, the breaking of the cable, which was as a result of the defendant failed to take reasonable precautions to ensure it was no defective, caused the injury that the claimant suffered.

Available Remedies

The nanny suffered an injury that required her to undergo surgery and spend a week in the hospital. As a result, the injury must have been a serious one. The claimant also missed a pre-arranged family vacation that had cost PS4,000. From these facts, the claimant is entitled to personal injury and compensatory damages - both pecuniary and non-pecuniary damages.

Pecuniary Damages

These are damages that can be estimated in monetary terms (Cooke, 2015, p. 552). Under this category of damages, the nanny will receive compensation for the loss of earning if the injury prevented her from working. The calculation for the amount she should get involves multiplying the amount she receives for a day job by the number of days she will or did not work (Cooke, 2015, p. 555). Additionally, the claimant should receive an amount similar to the medical bill she incurred and any other expense associated with the injury (Cooke, 2015, p. 552). Lastly, the claimant should get compensation of either the amount that is attributable to her in the PS4,000 the family paid for the vacation or the full amount of PS4,000 if the entire family did not go to the vacation as a result of her injury and hospitalization. However, any refund she will receive from the agency that had arranged for the vacation is deducted from the amount the defendant should pay. According to Parry v Cleaver [1970] AC 1, any benefit she might have received, like sick pay, should also be deducted.

Non-Pecuniary Damages

As established above, the injury was severe. The claimant, therefore, experienced pain and suffering due to it. As such, she is entitled to non-pecuniary damages for covering the intangibles consequence she suffered (Cooke, 2015, p. 552).

The Best Way to Seek Resolution

Alternative Dispute Resolution (ADR)

The claimant need not go to court for this dispute. Litigations are usually expensive and take time to settle. The claimant should ADR, which denotes a variety of techniques for settling disputes instituting lawsuits. Instances of ADR comprise arbitration, mediation, conciliation and early neutral evaluation (House of Commons, 2018, p. 37).

However, before moving to ADR, the claimant should first make an official complaint to the defendant. If the feedback she receives is not acceptable to her, she should send a letter of deadlock asking for a final response (Citizens Advice, 2019). This letter will act as evidence that she has not managed to settle the dispute and that the claimant tried to make an official complaint (Citizens Advice, 2019). Therefore, it will aid her course in subsequent attempts to settle the dispute (Citizens Advice, 2019).

Second, the claimant should find out if the defendant belongs to a trade union. Trade union usually have rules regulating its members, and in case of a dispute, the union could assist with it (Citizens Advice, 2019). Once she establishes contact with the association, she should inquire if they could help with her issue or advise her on the next step to take (Citizens Advice, 2019).

Finally, the claimant should take the matter before an ADR scheme. Since traders are sometimes members to ADR schemes, it might help the claimant with her claim to refer her issue to such a sc...