KWAME NKRUMAH UNIVERSITY OF SCIENCE AND TECHNOLOGY, KUMASI
INSTITUTE OF DISTANCE LEARNING
DEPARTMENT OF BUILDING TECHNOLOGYBT 361 – LAW OF CONTRACT AND ARBITRATION [Credit 2]
Publisher Information
©IDL, 2011
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Course Author
DICKSON OSEI-ASIBEY, is Lecturer in the Department of Building Technology of College of Architecture and Planning of Kwame Nkrumah University of Science and Technology, Kumasi in the Republic of Ghana.
He holds BSc (Hons) Building Technology, MSc. Construction Management and Bachelor of Laws (LL.B) Degree from the Kwame Nkrumah University of Science and Technology and Barrister-at-Law (B.L) Certificate from the Ghana School of Law, Accra.
Dickson Osei-Asibey is professional Quantity Surveyor and Legal Practitioner. He is also member of Ghana Institution of Surveyors (GhIS) and Ghana Bar Association (GBA). He is the Chief Executive of OCADS Consult Limited (Project Management and Construction Cost Consultants) in Kumasi. He is member of Adansiman Chambers (Barristers and Solicitors of Supreme Court of Ghana) also in Kumasi. Osei-Asibey is member of Board of Directors of Nwabiagya Community Bank and currently, the National Vice President of the Association of Rural Banks (ARB).
He was appointed Lecturer to the Kwame Nkrumah University of Science and Technology in May, 2009 and teaches Principles of Law, Constitutional law and Company Law and Law of Contract, Tort and Construction Dispute Resolution at the Department of Building Technology.
COURSE INTRODUCTION
Construction is a complex industry with interrelated processes of conception, planning design and associated activities on projects that are carried out in the industry. These processes are constrained by time, resources (labour, land, money, materials and equipment) and quality performance. It also involves a wide range of individuals with practical and professional skills. The stakeholders in the industry include the government, statutory bodies, general public, client, workers, suppliers, manufacturers, sub contractors, professionals, guarantors, financiers, etc.
The Construction Industry has therefore been one of the commercial entities characterized with disputes. Study of law is an indispensable subject in the curriculum for the training of professionals in the construction industry. Law, as a subject equips the student to provide analytical and logical thinking in solving practical problems and also to be armed with principles of law to reduce the occurrence of disputes that have characterized the industry. As future Quantity Surveyors, Project/construction managers, Consultants, Building and Civil Engineering Contractors etc, the third year students of Quantity Surveying and Construction Economics and Construction Technology and Management are to have the general knowledge of legal principles of tort, contract and dispute resolution mechanisms and how they affect the construction industry.
Course Description
The Course is entitled, BT 361 LAW OF CONTRACT AND ARBITRATION and constitutes 2 credits.
The Law of Contract and Arbitration therefore covers;
• Principles of the law of tort – deals with prevention of harm, injury and damage
to life and property. It covers objectives of law of tort, trepass, negligence including concept of duty of care, occupiers liability, employer’s liability, professional negligence, doctrine of res ipsa loquitor, negligent misstatement, vicarious liability and breach of statutory duties, rule in Rylands and Fletcher and nuisance,
• Principles of law of contract- it identifies principles underlying formation of
contract, contents of contract, unenforceable contracts, discharge of contract and special contracts affecting the construction industry
• Dispute resolution in construction industry - it identifies the methods for
settlement of disputes in contracts- traditional litigation in courts, and alternative dispute resolution (ADR) methods including arbitration covering customary arbitration, formal arbitration and other non-arbitral mechanisms such as Negotiation, Mediation etc under the Alternative Dispute Resolution Act,
2010 (Act 798). It also covers the procedure in construction dispute settlement both in local and international contracts.
Course objectives
After reading this course, you should be able to:
1. Explain the fundamental legal principles governing: the elements of contract and arbitration; rules and defences available to actions in contract and arbitration 2. Apply these principles to hypothetical and real situations
3. Outline the basic historical development and growth of the law of contract and arbitration
4. Appreciate and criticize the operation of the law of contract and arbitration in practice
Course Outline Unit 1: Law of Tort
Unit 2: Formation of Contract
Unit 3: Vitiation, Discharge and Remedies Unit 4: Dispute Resolution
Teaching and Assessment
The course is taught by lecture and seminar session in which students undertake case studies. Assessment is in the form of an end-of-semester examination, counting towards 70% of a student’s grade and a group presentation counting towards 30% of a student’s grade. The examination questions reflect broadly the content of the lecture and seminars. The purpose of the examination is primarily to test students’ ability to think independently and engage in analysis of legal issues from Contract and Arbitration perspectives.
TABLE OF CONTENT
Publisher Information ii
Course Authors iii
Course Introduction iv Table of Content v Reference vi TABLE OF CONTENT 1-1.2 TRESPASS...3 1-1.3 NEGLIGENCE...7 Session 2-4 ADR Mechanisms
2-4.1: Forms of Arbitration 2-4.2: Non Arbitral Mechanisms
2-4.3: Dispute Resolution in Ghanaian Construction Industry REFERENCE
1. Curson, L. B., 1998, Dictionary of Law, Fifth Edition, Financial Times Pitman Publishing,
2. Bradgate R, 2000. Commercial Law, Third Edition, Antony Rowe Ltd. 3. Brazier, M. et al, Street on Tort, 10th Edition
4. Hodgson, J. et al, Blackstone’s Law of Torts
5. Rogers, W. V. H., Winfield and Jolowicz on Tort, 14th Edition
6. Lewis, J. R., 1976. Law for the Construction Industry, The Macmillan Press Limited 7. Uff, J. 1999. Construction Law, 7th Edition, Sweet & Maxwell Limited
8. Bondzi-Simpson, P. E. 2002. Law of Contract, Excellent Publishing and Printing 9. Furmson, M. P. 2001. Cheshire & Fifoot’s Law of Contract; 14th Edition;
10. Bradgate R, 2000. Commercial Law, Third Edition, Antony Rowe Ltd.
11. Willis, C. J. et al. Practice and Procedure for the Quantity Surveyor- 10th Edition, Oxford Blackwell Scientific Publications
13. Coe, J. J. Jr. 1997. International Commercial Arbitration: American Principles and Practice in a Global Context
Table of Cases
Page
RE CASEY’S PATENTS (1892) 1 CH 104TABLE OF STATUTES
PROFESSIONAL BODIES REGISTRATION ACT, 1973 (NRCD 143)
INSURANCE ACT, 2006 (ACT 724),
FACTORIES, OFFICES AND SHOPS ACT, 1970, (ACT 328),
WORKMEN’S COMPENSATION LAW, 1987 (PNDCL 187), 1987,
LABOUR ACT, 2003, (ACT 651)
TOWN (COLONY), 1951 (CAP 86)
CONTRACTS ACT 1960 (ACT 25), MORTGAGES DECREE1972 (NRCD 96),
CONVEYANCING DECREE, 1973 (NRCD 195), BILLS OF EXCHANGE ACT, 1961 (ACT 53), HIRE PURCHASE ACT, 1974 (NRCD 292), SALES OF GOODS ACT, 1962 (ACT 137),
ILLITERATE PROTECTION ORDINANCES, CAP 262 (195) REV; AUCTIONS SALES LAW (PNDC LAW 230),
Unit 1
LAW OF TORT
Introduction
This unit provides the essential basic materials concerning the tortuous liability of parties of a construction contract. The principles of the law of tort governing the subject have been highlighted.
Learning objectives
After readings this unit, you should be able to:
1. Define and describe the nature of law of tort
2. Explain the basic elements of a negligence affecting construction activities
3. Explain the underlining principles of Ryland v Fletcher
4. Identify the other areas of tortuous liability affecting construction activities
5. Apply the principles of law of tort to hypothetical and real solutions
Unit outline
Session 1-1 Nature of Tort 1-1.1 Definition of Tort
1-1.2 Trespass 1-1.3 Negligence
Session 2-1 Statutory Duty , Ryland v Fletcher Rule and Nuisance 2-1.1 Industrial Safety Legislation s
2-1.2 Ryland v Fletcher Rule 2-1.3 Nuisance
SESSION 1-1 NATURE OF TORT
1-1.1 Definition of Tort:It is not easy to give a satisfactory definition of a tort. The word ‘tort’ is derived from the Latin “tortus” meaning crooked or twisted. It s also derived from French “tort” meaning wrong. In English law, tort denotes certain civil wrongs (a private offence against individuals) as distinct from criminal wrong (public offence against the state). Tort may be defined as a civil wrong independent of contract, or as a liability arising from breach of a legal duty owed to persons generally.
The aims of the law of tort are principally to protect interests in the person, land, chattels and reputation of another and to award damages for invasion of these interests. There are other interests of lesser importance which may not be protected and these include interests in economic and family relations.
The main remedy for tort is compensatory damages to compensate the victim of the wrong. The courts, however, have power to award punitive or exemplary damages in special circumstances.
• Distinctions Between Tort and other legal actions A Crime
The object of criminal proceedings is primarily punishment. The police are the principal agents to enforce the criminal law which invariably is a piece of statute. A private person may also prosecute a criminal offence. The same facts of a case may disclose a crime and a tort. Thus, if a worker at a construction site steals the contractor’s material at site, there is (i) a crime of theft, and (ii) trespass to goods (a tort) and conversion (also a tort). A Breach of Contract
In contract the duties are fixed by the parties themselves. They impose terms and
conditions themselves by their agreement. In tort, on the other hand, the duties are fixed by lay down rules (common law or statute) and arise by the operation of the law itself. Here, too, the same circumstances may give rise to a breach of contract and a tort. Batty v Metropolitan Property Realisation [1978] 2 WLR 500
A purchaser of a defective house brought an action against a developer for breach of a warranty that the house was fit for habitation and for negligence in having the house constructed on unsuitable ground.
It was held that an action by the client against his Architect or engineer will generally be brought in contract. However, professionals and others in the construction industry owe parallel duties in tort both to the client and others who may be injured by their
negligence.
Spartan Steel and Alloys Ltd v Martin & Co (Contractors) Ltd [1972] 3 All ER 557
The defendants’ negligence caused the cable carrying electricity to the plaintiff’s factory to be cut through interrupting the supply for 14.5 hours. The Plaintiff avoided the molten metal solidifying in the furnaces, and used oxygen to melt it. This reduced the value of
the metal and cost the plaintiffs the 400 pounds profit they would have expected to make on that melt. The plaintiff also lost a further 1,767 pounds on the other four melts which they would normally have completed in the time that the electricity was cut off. The majority of the Court of Appeal held that they could recover only the loss in value of the metal actually in the furnaces and the loss of profit on that melt. The remaining loss was pecuniary loss unrelated to any physical damage and irrecoverable.
The law of tort is important in the Construction Industry due to the fact that the operations within the industry involve great risk of dangerous situations. The major areas of tort that affect the industry include Trespass, Negligence, Strict Liability Rule under the doctrine of Rylands v Fletcher, Breach of Statutory Duty and Nuisance,
1-1.2 TRESPASS
Trespass may be defined as an act affecting one’s personal liberty or property without any invitation of any sort or if aware, is objected to. It may be to Person (workers in the industry), land including building (real property) or goods (personal property) including materials and equipment use in the construction of infrastructural works. Trespass is actionable per se.
1-1.2.1 Trespass to the Person
The usual topics treated under this heading are battery, assault and false imprisonment. However, here we will treat also the subject of malicious prosecution because although it is not a direct act to the plaintiff it affects the liberty of the person.
• Battery:
According to Street, battery is any act of the defendant which directly and either intentionally or negligently causes some physical contact with the person of the plaintiff without the plaintiffs consent. Winfield, however states that “battery is the intentional and direct application of force to another person.
The essential points to note are that;
- the act must be applied directly to the body of the plaintiff and that it must be intentional.
- If the contact or force is not direct from the defendant at all, there is no battery; for example, if A pushes B whose head hits C, A is not guilty of battery against C, neither is B because he did no intentional act.
As to whether when the act is not intentional but merely negligent and it is battery is not quite certain.
- The act need not result in any injury at all to the plaintiff because the tort being trespass is actionable per se that is without proof of any damage.
- The act should be without the express or implied consent of the plaintiff. Thus to throw water upon, touch, slap, kiss, perform surgical operation upon a person without his consent is battery.
- Unlike assault the act need not cause any apprehension of contact to the plaintiff, so that a blow to the plaintiff from behind constitutes battery.
However, it is not every application of force to or contact with the body which is battery that is some applications of force are permitted.
• Assault:
Street defines assault as any act of the defendant which directly and either intentionally or
negligently causes the plaintiff immediately to apprehend a contact with his person. According to Winfield “assault” is an act of the defendant which causes to the plaintiff
reasonable apprehension of the infliction of a battery on him by the defendant.
• Intentional Physical Harm:
The offence of intentionally causing physical harm is the willful act or statement of the defendant calculated to cause physical harm to the plaintiff and which in fact causes physical harm to him is a tort.
Wilkinson v Downton (1897) 2 QB 57
In that case the defendant by way of a practical joke falsely told the plaintiff that her husband had been involved in an accident by which both legs had been broken. Believing the story to be true the woman suffered nervous shock resulting in serious physical illness. An attempt by plaintiff’s counsel to base the claim on deceit required that the plaintiff should be intended to act on the false statement which did not apply in the present case because the plaintiff could not be said to have acted on the statement, she only believed it. Nevertheless Wright, J held that the defendant was liable for the consequences suffered by the plaintiff.
Held; “The defendant has willfully done an act calculated to cause harm to the
plaintiff-that is to say to infringe her legal right to personal safety, and has thereby caused physical harm to her. That proposition without more appears to me to state a good cause of action there being no justification for the act.”
This tort is however normally treated along with trespass to the person because physical harm is caused to the person.
• False Imprisonment:
The tort of false imprisonment consists in the act of arresting or deprivation of freedom of movement and need not involve actual incarceration. If a person is deprived of his personal liberty for any time, however short, that is false imprisonment. It will also be false imprisonment if a person is prevented from leaving the place in which he is. If a person is stopped in the street and told he is under arrest and the arrest happens to be unlawful that would be false imprisonment.
To constitute imprisonment however the restriction of the plaintiff must be complete; that is, there must be on every side a boundary drawn beyond which he cannot pass. However, the means of escape must be reasonable, that is, it should not involve exposure to damage or extreme inconvenience.
It should be remembered that false imprisonment being a trespass to the person is actionable per se.
AHEVI v AKOTO IV [1993-94] 1 GLR 512—538
All the parties in the suit were citizens of the Dodome Traditional Area (DTA) in the Volta Region. The first and second respondents were the chief of Dodome-Awiasu and the regent of the paramount chief of Dodome, respectively. Following a complaint to the first defendant and his elders by one E that one K had used juju to kill a fetish priestess in the town and that the plaintiff was also using juju to render the hospital mortuary where her corpse was being kept ineffective so as to deny the deceased a decent burial, the first defendant called a town meeting to go into the matter. At the meeting K admitted his guilt and he was duly sanctioned. The plaintiff however denied the accusation against him. In keeping with the custom and tradition of the DTA, the plaintiff was sent in the company of some relatives and the chief's linguist to a fetish priest at Ada Junction where he underwent a trial by ordeal to vindicate his name. Although he was found not guilty at the trial, on their return the meeting rejected the verdict of the trial and E again made further accusations against the plaintiff for having used juju to kill some members of his (the plaintiff's) family. Aggrieved by those accusations, the plaintiff initially lodged a complaint against her with the chief and his elders. However, as a result of their inaction, he summoned her before a fetish cult. Subsequently, the defendants called another town meeting to resolve the dispute between the plaintiff and E but the plaintiff refused to attend the meeting. However, claiming that he had learnt that at that meeting the defendants had portrayed him as a murderer and a juju man unfit to live in their society and had then ostracised him by banning all interactions between him and the other citizens of the town, and that those words spoken of him were defamatory, and furthermore, the whole process of trial by ordeal that he was compelled by the defendants to undergo constituted false imprisonment and malicious prosecution, he brought an action against the defendants jointly and severally for ¢10 million damages for defamation; an order directing them to have gong-gong beaten in the DTA to retract the defamatory words; perpetual injunction restraining the defendants from uttering those words; and ¢5 million for false imprisonment and malicious prosecution. Although the defendants denied uttering the alleged defamatory words, they admitted having stated that the plaintiff had no moral right to interact with the youth. The court found on the evidence that (i) the citizens of the DTA believed in the efficacy of juju; (ii) the plaintiff had participated in and had a reputation for participating in juju and fetish activities; and (iii) the plaintiff himself undertook to clear his name by submitting to the trial by ordeal.
Held:
A claim of false imprisonment implied total restraint of one's liberty without his consent. Since on the evidence, it was the plaintiff who, in accordance with the custom of their traditional area, voluntarily offered to undergo the trial by ordeal in order to vindicate his name, after he had denied the accusation made against him, and willingly participated in all the processes and rites at the fetish which culminated in his exoneration, a result which he duly celebrated, it could not be said that his personal liberty was in any way restrained by the defendants before, at or after the trial by ordeal.
Accordingly, the plaintiff's claim against the defendants for false imprisonment would fail.
• Malicious Prosecution
This is where a person, A prosecutes the other, B without a just cause and the defendant B is acquitted. The defendant, if he can prove that A brought the prosecution out of private spite (desired to hurt, annoy or offend), then B may sue A for the offence of malicious prosecution.
This tort also is not trespass to the person as the action itself constituting the wrong does not directly affect the person of the plaintiff; the effect on the plaintiff is only consequential. However, it is discussed under the trespass to person because it affects the liberty of the plaintiff. Since it is not direct trespass, damage is required to be proved. In an action for malicious prosecution, the plaintiff had the onus of proving that (a) he was accused of or charged with a criminal offence or both; and (b) the proceedings terminated in his favour before a court of competent jurisdiction.
1-1.2.2 Trespass to Land
A trespasser to land has been defined as one who goes on to the land of another without any invitation of any sort and whose presence is either unknown to the proprietor, or, if known, is objected to practically. The question, whether or not a person is a trespasser or is there by permission is not always easily decided.
Trespass to land is however committed in three forms: Whenever a person intentionally or negligently;
(i) Enters upon the land of another (ii) remains on the land of another;
(iii) causes to be placed or thrown any material object upon the land of another, e.g. debris from demolished building
Gregory v Piper (1829), 9B &C 591
The Plaintiff brought an action against the defendant when rubbish was placed on the defendant’s land but was rolled on to the Plaintiff’s land as a result of natural causes. Held; Defendant was liable.
Mere trespass on land is not a crime and no prosecution for it may be brought, though a civil action may be. However a crime is committed if the trespass is accompanied by damage e.g breaking fences or trading down growing corn, an offence of willful damage is committed.
In the construction industry, a contractor may trespass if he remains on the site of the client after the contract has ended or license is up.
A trespass may be on the surface of the land, or underneath it (where excavations are being carried out) or in the airspace above it (where materials project over the property).
Mistake is no defense in such circumstances and provided that the plaintiff has legal estate and exclusive possession, he may sue and full restitution for the loss suffered may be claimed. Moreover a person may be sued even though he did not know he was trespassing for mistake is no defense.
• Remedies for Trespass to Land
Damages: this is in general the amount by which the value of the property is diminished as a result of the trespass, not the cost of reinstatement.
Injunction: This may be used to prevent the continuance or repetition of the act of trespass. The Plaintiff may apply to the court for both damages and an injunction. Ejection: The occupier of the land may eject a trespasser after first requesting him to leave and allowing him peaceably to do so. No more force may be used than is reasonable in the circumstances; otherwise the occupier may be sued for assault. An Action for Recovery: May be brought for recovery of land.
1-1.2.3 Trespass to Goods
The trespass to goods is the intentional or negligent interference with the possession of another person’s goods. The interference must be direct and forcible (though a mere touching may be trespass).
1-1.3 NEGLIGENCE
1-1.3.1 Concept of Duty of Care
Negligence may arise where the plaintiff establishes that there is duty by the defendant to take care of the plaintiff. Thus, there is duty held by the defendant to protect the injured party from the kind of harm suffered due to the careless act of the defendant. It can therefore be established that there is a breach of such duty which was found to be the cause of the harm suffered by the plaintiff.
In Lochgelly Iron & Coal Co v McMullan [1934] AC 1 @ 25 Lord Wright held among other things that negligence means more than heedless or careless conduct, whether in
omission or commission. It connotes the complex concept of duty, breach and damage
suffered by the person to whom the duty is owe.
Negligence therefore may be defined as an act, heedlessly or carelessly omitted or committed to a person whom a duty of care is owed.
Thus for there to be negligence, there must be in existence DUTY, BREACH and CAUSATION. The courts however recognize these elements as one.
• There is a breach of duty to take care
• The breach resulted from a careless act or omission for which reason a harm has been suffered by the plaintiff.
The plaintiff in any particular circumstances, established that the defendant owe a duty at least to somebody to act or refrain from acting and that the defendant had conducted himself a manner that, that duty is owed to the plaintiff personally. A person does not owe a stranger any duty.
Langbrook Properties Ltd v Surrey County Council [1969] 3 All ER 1424
The Defendant carelessly excavated his land where he could foresee that by abstracting percolating water from below, the adjoining property of the Plaintiff would be caused to settle. The Plaintiff brought an action against the defendant but was held that the defendant is not liable because he owes no duty of care in respect of percolating water to the plaintiff personally.
Whether or not a duty exists has always been a matter of law not fact. Sometimes the existence of duty is very clear e.g, the builder owes duty to the public that may use the site and the road contractor, similarly owe a duty to all other users of the road. A building inspector owes a duty of care, in the inspection of foundations for compliance with the building regulations to the purchaser who eventually buys the house and this makes authority responsible (employer of the building inspector, Metropolitan, Municipal or District Assembly), vicariously liable under the duty.
Where a person is found to be under duty, the extent of recoverable loss does not include economic loss. See; Spartan Steel and Alloys Ltd v Martin & Co (Contractors) Ltd The trend to raise economic loss to the level of recoverable loss in negligence was however halted in the case of Murphy v Brentwood District Council [1990]2 All ER 908@935. In that case the plaintiff was the purchaser of a house the foundation was defective. However the plans and calculations on which the foundation was based had been passed by due to the carelessness of their engineers when submitted for building regulation approval prior to construction. The plaintiff lost a substantial sum in selling
the house on account of the defect. He therefore sued the council in negligence for
damages of the house on account of the defect. The House of Lords unanimously held that the loss claimed was purely economic loss and as such was not recoverable in an action in negligence against the local authority. Their Lordships declared that the council owed no duty to protect building owners or occupiers against such loss. This decision was described as a return to orthodoxy. It was emphasized that plaintiffs could recover such purely economic loss only through contracts and that the law of negligence would be permitted to be a substitute for the assistance of third parties or those whose contract did not provide for recovery.
A defendant may be liable to the plaintiff including a person with a current proprietary interest in a damaged property for personal injury or damage to property but not economic loss occasioned to the plaintiff. Thus in some circumstances such as economic loss the law may deny duty.
Electrocheme Ltd v Walsh Plastics Ltd, [1968] 2 All ER 205
The lorry driver negligently knocked down a fire hydrant which caused the water supply to the plaintiff’s factory to be cut off. There was no physical damage to any of the plaintiff’s property. The Plaintiff brought an action for recovery of loss of production. Held; the plaintiff could not recover for loss of production, for the damage received was purely economic in nature.
1-1.3.2 FORESEABILITY AND OMISSIONS
Even though a person may foresee that if he omits i.e. fail to act or take something and slap another the victim may suffer damage or harm yet generally the law does not hold such a person liable if the victim in fact suffers harm due to his failure to prevent such harm. It is said that one must take care not to cause injury to others, but then there is no general duty to act for the benefit of others; in other words, the rule is that you must not harm your neighbour, not that you are required to save your neighbour.
Junior Books Ltd v Veitchi Co. Ltd [1983] 2 All ER301 HL. In that case the plaintiff had a contract with some main contractors to build a factory for them. The main contractors entered into a contract and the Plaintiff found the floor to be defective which they had to spend extra money to remedy the defect. They sued the defendants in negligence of damages. The House of Lords held that there was a sufficient degree of proximity to give rise to a duty of care, and that duty of care was not limited to a duty to avoid causing foreseeable harm to persons or property.
According to Street, exactly what constitutes the ‘necessary proximity’ to give rise to a duty-situation is difficult to define precisely. Foresee ability of harm to the plaintiff remains a necessary pre-condition of liability. There can be no proximity without forseability. But additionally the plaintiff must establish grounds on which it is proper to impose on the defendant responsibility for that harm, reasons why it is fair to expect the defendant to safeguard the plaintiff’s interests rather than expecting the plaintiff to expect the defendant to look after himself.
1-1.3.3 ASPECTS OF NEGLIGENCE
Aspects of Negligence affecting the Construction Industry include; a. PROFESSIONAL NEGLIGENCE
Generally, consultants and other professionals are expected by law to display reasonable competence in the delivery of their services. The duty of care required by the professional is normally based on the contractual arrangement between the two. However, the duty of care may arise concurrently in tort and contract (Professional Bodies Registration Act, 1973 (NRCD 143)).
The standard of reasonableness depends on the competency of the professional. Thus, less is expected from a young professional than experience consultant. However where an unqualified person or young professional holds himself as an experience consultant in his deliveries, the law would not excuse his negligence. He is deemed to be what he says he is and adjudged by that standard.
The law would excuse the negligence of the professional or consultant if he applies methods and practices that are commonly accepted within the profession notwithstanding the fact that many of the professions see the practice as unwise.
The court however has the discretion to determine whether or not the practice is general standard of the reasonable man.
Cavanagh v Ulster Weaving Co. Ltd [1959] 2All ER745
The arrangement made by the defendants in providing a roof ladder was in accordance with the established practice. The plaintiff slipped coming down the roof ladder and injured himself. The Plaintiff sued the defendants for negligence.
Held; the defendants were negligent and therefore liable.
The professional may be found liable to a third party ie, someone other than the client. According to Street, for a duty to arise to a third party the professional;
• Must be aware that his advice will be transmitted to the plaintiff or to an identifiable class of persons of whom the plaintiff is one
• Advice must be transmitted in order to forward a specific purpose of transaction of the plaintiffs, and
• Must be reasonable in all the circumstances for the plaintiff to rely on that advice, rather than to seek independent advice of his own, and the professional must be well aware that the plaintiff will so rely on his advice.
In Smith v Bush [1989] 2 All ER 514 HL, the defendants were surveyors who provided a survey report based on which the plaintiff mortgagees relied on when submitted by the mortgagor as assurances that the properties which they wished to buy were structurally sound and worth more or less the agreed purchase price.
Held; the House of Lords held that it was well known that over 90% of house-buyers relied on the building society survey report for which they ultimately paid. The defendant should have appreciated that the plaintiffs reasonably entrusted them with responsibilities for safeguarding their interests and therefore liable to the plaintiff.
The law expects the Professional to display the average amount of competence associated with the proper discharge of the duties of their profession. It is not the highest degree of skill shown by persons in the profession but the reasonable competence that is required. However, the law also requires the Professional to update himself reasonably. An unqualified person would not be excused of his Negligence.
Section 20 of NRCD 143 provides that ‘Any person who—
(a) not being registered …. as a member of a professional body registered under this Act represents himself or holds himself out as so registered, or
(b) not having the qualification for admission to or enrolment in or for being accepted as a member of, such a body knowingly represents that he has such qualification, or
(c) otherwise contravenes any of the provisions of this Act,
shall be guilty of an offence and liable on summary conviction to a term of imprisonment not exceeding five years or to a fine not exceeding ¢1,000.00 or to both; and where the offence is of a continuing nature the offender shall be liable to a further fine not exceeding ¢50.00 in respect of each day on which the offence continues.
The qualified person will not be regarded as Negligent if he uses practices which are commonly accepted within his profession as acceptable even if a large number of his colleagues feel that the practice are not wise.
The key issue is whether or not the duty of care exercised by the professional was reasonable. A higher standard is required from an experienced Consultant than a young surveyor
B. DOCTRINE OF RES IPSA LOQUITUR (THE FACTS SPEAK FOR THEMSELVES):
It is the general rule that the plaintiff should prove the negligence of the defendant by specific acts or omissions, for example, that a defendant driver failed to look forward while driving, or that he drove at an excessive speed. But sometimes it is not possible for the plaintiff to detail the specific conduct of the defendant resulting in the accident. This could work hardship for the plaintiff. This hardship was avoided by the development of the doctrine of Res Ipsa Loquitur.
The doctrine applies in those situations where the harm is of the kind that does not just happen but was caused by something in control of the defendant, and therefore must prima facie (on the face of it) be regarded as having been the result of the defendant’s negligence. For example, if the carcassing of an interior ceiling is being carried out and someone below is injured by a piece of falling wood, res ipsa loquitur, the defendant will have to show that he was not negligent in handling the wood. This applies particularly to things falling from buildings, any accident arising from defective machinery, apparatus or vehicles.
• The thing causing the accident must be under the control or management of the defendant or his servants.
• The accident must be such as ordinarily cannot occur without negligence.
• There must be absence of explanation of the cause of the accident by the defendant.
The effect of a plea of res ipsa loquitur is that if no evidence by the defendant that the accident could not be due to want of care then there must be a verdict for the plaintiff. In other words, a plea of the maxim casts a burden on the defendant to disprove negligence, for the plea of the maxim gives rise to a prima facie evidence of negligence on the part of the plaintiff.
c. OCCUPIERS’ LIABILITY
An occupier may be defined as anyone who owes sufficient degree of physical control and possession over property. This includes possession of construction site by a contractor and all those who exercise control over fixed or movable structures such as lifts, scaffolding etc
The general rule is that an occupier of premises owes no active duty to trespasser if he is known to be present, and occupier may not inflict damage on him recklessly or intentionally. An occupier may not create dangers intentionally to injure a trespasser. Thus, he may not set spring guns (Bird v Holbrook, 1828) though it is possible to take defensive measures, such as covering the tops of high walls with broken glass.
i. Duty to Visitor
In a case (Wheat v Lacon), a landlord and a tenant were held liable for the injury of a guest on a stair case.
At common law liability is owned to a visitor, i.e. an invitee or a contractual visitor, a licensee and a trespasser.
The highest degree of care is owe by the occupier to one who enters in pursuance of a contract with him (e.g. a guest in an hotel), in that case there is an implied warranty that the premises were reasonably safe in using the premises for the purpose for which the person is invited, contracted or permitted by the occupier to be there.
A lower duty was owed to an “invitee”, that is to say, a person who (without any
contract) entered on business of interest both to himself and the occupier (e.g. a customer coming into a shop in view to view the wares): he was entitled to expect that the
occupier’s express or implied permission suggest that the occupier’s duty towards him was to warn him of any concealed danger or trap of which he actually knew.
In the case of Cunningham v Reading Football Club [1992] PIQR 141 the plaintiff recovered from the defendant when loose concrete slab fell and injured him in a stadium. It was foreseeable that the slabs may fall when violent supporters rioted.
A licensee may be a person who is on the occupier’s premises either by an express or implied consent of the occupier.
It must however be noted that according to Street on Tort the distinction is not necessary in terms of duty of care owed to these people.
To a licensee, permission should not be implied only because the occupier had failed to take necessary steps to prevent his entry rather there should be evidence of an express permission or that the land-owner has so conducted himself in a manner that he cannot be heard to have said he didn’t give it. For example, where signage for vacancy is placed in an unfenced construction site, the contractor may be liable.
In the case of Edwards v Railway Executives [1952] 2 All ER 430 @ 437; House of Lords held that the duty of an occupier is to warn the licensee of any concealed danger known to him and which is not known to the licensee. Warning however does not discharge the defendant of his liability unless it can be proved that the warning was sufficient with regard to the danger.
ii. Duty of Common Humanity
At common law the occupier owes the trespasser no duty of care. There however exists the duty of common humanity.
This duty may arise when it can be shown that the occupier is aware of the danger or has reasonable grounds to believe that it exist, and he knows that or has reasonable grounds to believe that the trespasser is in the vicinity of the danger or that he is likely to come into the vicinity and that the danger is one against which he can reasonably offer the trespasser some protection.
Thus if a building materials are placed precariously on the site, in such a manner that they are likely to collapse, and injure a passer-by, and the occupier knows that members of the public use the site as a short cut when walking to the main road, according to Lewis, the fact that the person injured was a trespasser will not save the occupier from liability for the injuries caused by the collapsing materials.
Southern Portland Cement v Cooper [1974] 2 WLR 152
A child wandered onto the site and was injured by the cable within reach of the mound of waste material. The children were playing near the quarry and had been warned off several times. The defendant had inspected a dump of waste material and agreed with the local authority for removal of the cable.
Held; it was an easy task for the defendant to have taken steps to prevent the danger arising and also owed a duty to the plaintiff to take those steps. The defendant was liable to the plaintiff.
In such cases the occupier owes a duty of care towards trespassers, to take such steps as are dictated by common sense and humanity, to reduce or avert the danger.
iii. Children
The general rules as to trespassers apply to children. There are, however some special points which should be noted;
• An occupier must be prepared for the fact that children are less careful than adults.
• what may be a warning to an adult may not be so to a child
- If with the knowledge of child trespassers on his land, and the occupier makes no attempt to prevent recurrence of the trespass, e.g by repairing his fences, his inactivity might be evidence of implied permission, in which case the child may qualify as a ‘visitor’. Eg construction of septic tank
- Where a child is unlawfully on land and there is something on the land which acts as an ‘allurement’ to a child, e.g machinery or attractive poisonous fruits, the occupier may be liable even though the child is a trespasser so far as the allurement itself is concerned.
- As (iv) above, an occupier of land is entitled to assume that young children will be in the charge of competent adults. In Phipps v Rochester Corporation [1955]
1 All ER 129, where a boy aged five, who was accompanied by his sister aged
eleven, fell into a hole and broke his leg, it was held that the responsibility for the safety of young children rests primary with their parents.
There may however arise special consideration for children. Permission may be implied on the basis of an allurement that would present no temptation to an adult.
British Railway Board v Herrington [1972]1 All ER 757,
H, aged 6, trespassed through a defective fence adjoining an electrified railway line and was badly injured. H sued the Board in negligence for permitting the fence to be in a dilapidated condition. The Board knew previous trespassers had occurred. Held: (House of Lords): The Board was liable. An occupier’s liability to a child trespasser depends on what a conscientious, human man (with his knowledge, skill, and resources) could reasonably have avoided the accident. A poor person would often be excused where a large organization would not. (per Lord Reid)
Cook v. Midland Great Western Railway, Ireland [1909] AC 229,
Defendants kept a turntable on their land near a public road. To the knowledge of defendant children habitually came on to the land and played with the turntable. Defendants took effective steps to prevent them doing so, a child aged four, injured himself on the turntable. Held: that there was sufficient evidence to find the defendants liable. As they had acquiesced in the trespasses by the children, the particular child was in the position of a visitor, and to him the turntable was an allurement.
Glasgow Corporation v Talor [1922] 1 AC 44.
A child, seven years of age pick some attractive, but poisonous, berries growing on a shrub in a public park controlled by Glasgow Corporation. The child died after eating the berries. Defendants (the corporation) knew the berries were poisonous and that children went to the park, but they had done nothing to give effective warning, intelligible to children, of their danger. Held: that the corporation was liable in an action by the child’s parent; the berries constituted an allurement.
iv. Independent Contractors
Where a danger is caused to a visitor as a result of danger due to the faulty execution of a work of construction or of maintenance by an independent contractor employed by the occupier, the occupier shall not be answerable for the danger if in all circumstances he acted reasonably in entrusting the work to an independent contractor and took such steps as are necessary to satisfy himself that the contractor was competent and the work was properly done.
The court therefore has to look at these areas i.e. whether it was reasonable for the occupier to engage the independent contractor (the work involved is specialized or involves the use of special skill or equipment) and whether the occupier checked the competence of the independent contractor.
Haseldine v Daw & Son Ltd [1941] 2KB 343
The occupier had neither the skill nor the equipment to repair the lift so he delegated th task to a properly skilled independent contractor.
Held; the occupier was not liable for defects in the lift having delegated the duty to the independent contractor and having behaved reasonably in so doing.
v. Limitation of Occupier’s of Liability
• Assumption of Risk
The common duty of care does not impose on an occupier an obligation to a visitor in respect of risk that was willingly accepted by the visitor. The defendant therefore brings no duty of care owed to the plaintiff upon the assumption of risk. Volenti non fit injuria.
• Contributing Negligence
Contributory negligence is to the effect that a plaintiff cannot enlarge to an extent the duty of care owed to him by the defendant by negligent acts on his part. Damages are therefore reduced when it is proved that the plaintiff failed to take reasonable care of himself.
• Exclusion of Liability
The occupier may exclude liability by way of contract to the other party in so far as he is free to do so. He however cannot exclude liability for death or personal injury or injury to property arising through his own negligence.
d.
EMPLOYERS' LIABILITY
The employer's common law duties to his employees are commonly dealt with in four headings, the provision of: (a) competent staff; (b) a safe place of work; (c) proper plant and equipment; and (d) a safe system of work. These are simply aspects of the broader
duty to see that reasonable care for the safety of employees is taken.
Wilsons and Clyde Coal Ltd v English [1937] 3 All ER 628
It was held by the House of Lords that (1) the employers were not absolved from their duty to take due care in the provision of a reasonably safe system of working by the appointment of a competent person to perform that duty. Although the employers might, and in some events were bound to, appoint someone as their agent in the discharge of their duty, the employers remained responsible. (2) the doctrine of common employment does not apply where it is proved that a defective system of working has been provided. To provide a proper system of working is a paramount duty, and, if it is delegated by a master to another, the master still remains liable.
i. Competent Staff
The employer has an obligation to select competent fellow employees, and a correlative duty to give them proper instruction in the use of equipment.
If an employer knows or can foresee that acts being done by employees might cause physical or psychiatric harm to a fellow employee, it is arguable that the employer could be in breach of duty to that employee if he did nothing to prevent those acts when it was in his power to do so.
ii. Safe Place of Work
An employer must take such steps as are reasonable to see that the premises are safe.
Latimer v AEC Ltd [1953] 2 All ER 449
Owing to an exceptionally heavy storm of rain, a factory was flooded with surface water which became mixed with an oily liquid used as a cooling agent for the machines which was normally collected in channels in the floor. When the water drained away from the floor, which was level and structurally perfect, it left an oily film on the surface which was slippery. The defendants spread sawdust on the floor, but owing to the unprecedented force of the storm and the consequently large area to be covered, there was insufficient sawdust to cover the whole floor. In the course of his duty the plaintiff slipped on a portion of the floor not covered with sawdust, fell, and was injured.
It was held by the House of Lords, inter alia, that on the facts the defendants had taken every step which an ordinarily prudent employer would have taken in the circumstances to secure the safety of the plaintiff, and so they were not liable to the plaintiff for negligence at common law.
The employer is also under a duty with respect to the premises of a third party even though he has no control over the premises, but the steps required to discharge this duty will vary with the circumstances.
A master's duty to his servant to take reasonable care so to carry out his operations as not to subject his servant unnecessary is one single duty applicable in all circumstances. The question whether the master was in control of the premises, or whether the premises were
those of a stranger, becomes merely one of the ingredients, albeit an important one, in considering the question of fact whether, in all the circumstances, the master took reasonable care.
Wilson v Tyneside Window Cleaning Co [1958] 2 All ER 265
A skilled and experienced window cleaner, who knew that he should not trust the handles on windows without first testing them, was frequently sent by his employers to clean the windows of a particular customer. The employers did not inspect the customer's premises each time when they sent the window cleaners there, nor did they specifically warn the window cleaner of particular dangers; but they did instruct him to leave uncleaned any window which presented unusual difficulty and which he was in doubt whether he could clean safely, to report the fact to them and to ask for further instructions. There was no evidence of any practice in the trade either of inspecting premises for safety before work or of repeatedly warning workmen of the dangers. While cleaning the outside of a kitchen window, the woodwork of which appeared to the window cleaner to be rotten, of which he knew the sash to be stiff and of which one of the two handles was missing, the window cleaner attempted to pull the window down by the remaining handle. The handle came away in his hand, causing him to lose his balance, fall and sustain severe injuries.
In an action by the window cleaner against the employers for alleged negligence exposing him to unnecessary risk, it was held by the Court of Appeal that the employers had taken reasonable care not to subject the plaintiff to unnecessary risk, because the danger was an apparent danger, the plaintiff was very experienced at the work, and they had instructed him not to clean windows which it might not be safe to clean; the employers, therefore, were not liable.
iii. Adequate Plant and Equipment
An employer has a 'duty of taking reasonable care to provide proper appliances, and to maintain them in a proper condition' (per Lord Herschell, Smith v Baker [1891] AC 325, 362). If necessary equipment is unavailable and this leads to an accident he will be liable, although he is not necessarily bound to adopt the latest improvements and equipment If the employee would not have used the safety equipment if it had been supplied the employer's breach of duty is not the cause of injury. An employer is liable if an employee suffers personal injury in the course of his employment in consequence of a defect in equipment provided by the employer, and the defect is attributable wholly or partly to the fault of a third party, whether identifiable or not.
An employer will not be liable if a worker fails to make proper use of the equipment supplied, nor where the employee acted foolishly in choosing the wrong tool for the job, assuming that, where necessary, the employee has been given adequate instruction in the use of the equipment.
iv. Safe System of Working
interests of safety, or whether it can reasonably be left to the employee charged with the task. It is usually applied to work of a regular type where the proper exercise of
managerial control would specify the method of working, give instruction on safety and encourage the use of safety devices.
In some cases a warning of the danger to a skilled employee will be sufficient to discharge the employer's duty, and in others it may be reasonable to expect experienced workers to guard against obvious dangers. See: Wilson v Tyneside Window Cleaning Co. [1958] 2
All ER 265 (above)
There are two aspects to the provision of a safe system of work: (i) the devising of a system; and (ii) its operation.
Even if the system itself is safe a negligent failure to operate the system, whether by another employee or an independent contractor, will render the employer liable.
General Cleaning Contractors v Christmas [1952] 2 All ER 1110
The plaintiff, a window cleaner, was employed by the defendants, a firm of contractors, to clean the windows of a club. While, following the practice usually adopted by employees of the defendants, he was standing on the sill of one of the windows to clean the outside of the window and was holding one sash of the window for support, the other sash came down on his fingers, causing him to let go and fall to the ground, suffering injury.
On a claim by him against the defendants for damages, it was held by the House of Lords that even assuming that other systems of carrying out the work, eg, by the use of safety belts or ladders, were impracticable, the defendants were still under an obligation to ensure that the system that was adopted was as reasonably safe as it could be made and that their employees were instructed as to the steps to be taken to avoid accidents; the defendants had not discharged their duty in this respect towards the plaintiff; and, therefore, they were liable to him in respect of his injury.
Per Lord Reid; Where a practice of ignoring an obvious danger has grown up it is not
reasonable to expect an individual workman to take the initiative in devising and using precautions. It is the duty of the employer to consider the situation, to devise a suitable system, to instruct his men what they must do, and to supply any implements that may be required.
e. VICARIOUS LIABILITY
This is liability which arises because of one person’s relationship to another. Thus a master or principal is generally liable for the acts of his servant or agent where he performs negligently in the course of his employment.
Harrison v Michelin Tyre Co [1985] 1 All ER 919
The plaintiff, a tool grinder employed by the defendants, was injured in the course of employment while standing on the duck-board of his machine talking to a fellow employee. The injury occurred when S, another employee, while pushing a truck along a
passageway (indicated by chalk lines) in front of the plaintiff, decided to indulge in some horseplay by suddenly turning the truck two inches outside the chalk lines and pushing the edge of it under the plaintiff's duck-board. The duck-board tipped up and the plaintiff fell off it and was injured. He brought an action for damages for personal injuries against the defendants, claiming that S had been acting in the course of his employment, and that therefore they were vicariously liable for his negligence. The defendants denied liability, contending that at the time of the incident S had embarked on a frolic of his own.
It was held in the QBD that for the purposes of vicarious liability, the test whether an employee was acting in the course of his employment was whether a reasonable man would say either that the employee's act was part and parcel of his employment (in the sense of being incidental to it) even though it was unauthorised or prohibited by the employer, in which case the employer was liable, or that it was so divergent from his employment as to be plainly alien to his employment, and wholly distinguishable from it, in which case the employer was not liable. Applying that test, a reasonable man would say that, even though S's act was of a kind which would never have been countenanced by the defendants, it was none the less part and parcel of his employment. Accordingly the defendants were vicariously liable.
The principle, ‘frolic of his own’ is commonly the defence of the master or principal where the servant or the agent does not perform his negligent act in the course of his employment. Thus where a tipper truck driver of a construction company, has been tasked to win gravel from the gravel pit but he decides to pick the wife to the house which is situated in an opposite direction of the gravel pit first and negligently knock down a school girl on his way to the house, the Company will certainly plead frolic of his own as its defence against the vicarious liability..
f. LIABILTY FOR PRODUCTS
The normal liability for products was in respect of a contract between a seller and buyer. That is to say under a contract of sale of goods, the seller was liable for defects in goods for which the buyer was not aware. Subsequently, however a liability on the part of a producer who was not a contracting party at all to the plaintiff was recoginised in relation to things of which the defendant was aware was likely to cause danger.
The liability in the construction industry arises in relation to the materials used or tools supplied in the course of the works.
Donoghue v Stevenson [1932] A.C. 562
Where the defendant was not aware that the thing was dangerous in itself or was likely to cause harm, no liability was recognized on the part of a non-contracting third party. However, in Donoghue v Stevenson, such liability was recognized for the first time. In that case the plaintiff in 1928 entered a café with a friend who bought for her bottle of ginger beer manufactured by the defendant, Stevenson, from whom it was bought by the retailer. The beer was contained in an opaque bottle. It was alleged that the bottle contained the decomposed remains of a snail which could not be detected until the greater
part of the contents of the bottle were consumed. She alleged that as a result of the nauseating sight of the snail and the impurities in the ginger beer which she had already consumed, she had suffered shock and severe gastric complaints. A majority of the House of Lords held, when the plaintiff sued the manufacturer that, the plaintiff’s allegations disclosed a cause of action against the manufacturers. Lord Atkin observed:
“A manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty to the consumer to take that reasonable care”.
g. NEGLIGENT MISSTATEMENT
Negligent Misstatement arises where a statement of a professional which is being relied on by the plaintiff causes an injury to him as a result of negligence of the professional during the course of his work. Professionals such as Quantity Surveyors, Engineers, Architects etc can be held liable to persons other than their employers who suffer loss in the form of financial or physical through reliance on their statements. However where the professional provides a disclaimer of responsibility to the notice of the person who is relying on the statement or advise of the professional the professional can have a defence. Clay v A. J. Crump Ltd [1964] 1 QB 533 An Architect was sued because of his
negligent supervision on a site which was being developed. He was held to have a duty of care and he was held liable for injuries suffered by the party injured by the falling wall. Negligent Misstatement may include a wrong diversion sign that may cause accident to road users.
Brett M.R. in Heaven v Pender (1883), 11 QBD 503 held ‘whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense who did think would at once recognize that if he did not use ordinary care and skill would cause danger or injury to the person or property of another, a duty arises to use ordinary care and skill to avoid such danger.’
Self-Assessment 1 – 1
1. Explain the statement,”to constitute false imprisonment the restriction of the plaintiff must be complete”.
2. Trespass to land is committed in three forms; state one of such forms. 3. A Contractor at the construction of a pool site at KNUST carelessly
excavated his trench but could foresee that by abstracting percolating water from below, the adjoining mast which has been erected by the MTN Company on the adjoining property of a private developer would be caused to settle. The MTN Company has brought an action against the Contractor.
Will the Contractor be liable?
SESSION 2-1 STATUTORY DUTY, RYLAND V FLETCHER RULE
AND NUISANCE
2-1.1. Industrial Safety Legislations
Breach of statutory duty arises where a statute provides certain thing to be done and the default results in injury to another person, the person on whom the duty was imposed can be sued for damages by the injured person. It is a separate tort because there have been cases in which the defendant has been acquitted of negligence but held liable on the same facts for breach of statutory duty. There have also been cases in which the defendant fulfilled his statutory duty but was nevertheless held liable for negligence.
The principle is that Duty must be owed to the Plaintiff and the Defendant must in fact be guilty of his statutory duty or obligation.
Indeed, industrial safety legislations, which is penal in nature, is one area where the courts have consistently allowed such common law actions. Some Regulations which governed specific areas in construction are the Insurance Act, 2006 (Act 724), Factories, Offices and Shops Act, 1970, (Act 328), Workmen’s Compensation Law, 1987 (PNDCL 187), 1987, Labour Act, 2003, (Act 651), Environmental Protection Act, Building Regulations and Disability Act
The amount of protection given by an action for breach of statutory duty depends, not only on the wording of the statute, but more importantly on the interpretation of the courts.
a. The Insurance Act
The Insurance Act, 2006 Act 724 requires an owner of a commercial building under construction to insure the liability(ies) in respect of constructional risk arising out of negligence of servants, agents or supervisors which may result in the following;
1. (i) bodily injury to any workman on the site or any member of the public (ii) loss of life to any workman on the site or any member of the public
(iii) damage of property of any workman on the site or any member of the public
2. (i) the Insurance Act also requires the owner of a commercial building to insure the building against collapse, fire, earthquake, storm and flood.
(ii) The insurance policy obtained from the insurer shall cover the legal obligations of the owner or occupier of such building in respect of loss or damage to property, bodily injury or death suffered by any user of the building and third parties.
The Insurance Act defines commercial building as a privately owned building where members of the public enter and leave for the purpose of (a) obtaining educational or medical services or (b) engaging in commercial activity for the purposes of the recreation
or transaction of business.
b. The Factory, Offices and Shops Act,
The Factories, Offices and Shops Act, 1970 (Act 328) has the following provisions; (i) Every factory, office and shop shall be provided with such adequate means of escape in case of fire for the persons employed there as may be reasonable required (S.3).
(ii) Where any person has to work at a place from which he will be liable to fall a distance more than eight feet (2.5metres), means shall be provided, so far as is reasonable to ensure his safety (S. 34 (2)).
(iii) All floors, steps, stairs, passages, gangways shall be of strong construction and properly maintained and shall so far as is reasonably practicable be kept free form any obstruction and from any substance likely to cause any person to slip (S 35 (1).
(iv) For every staircase in a building or affording a means of exit from a building, a substantial handrail shall be provided and maintained (S35 (2))
Any employee injured as a result of a breach by the employer of any of the above provisions is entitled to recover damages for breach of statutory duty.
c. The workmen’s compensation law, PNDC Law 187, 1987
Another statute which has made the rights of employees against their employers under common law less significant is the workman’s compensation Act1963 (Act 174), now PNDC Law 187, 1987. The principle of compulsory payment of compensation by the employer is in respect of the death or disablement of a workman as a result of accident occurring in the course of his employment, independently of negligence not provided for by the Factory Act.
d. The Labour Act
The Act provides that in any contract of employment or collective agreement, the duties of the employer include to;
• Provide work and appropriate raw materials, machinery, equipment and tools;
• Take all practicable steps to ensure that the worker is free from risk of personal injury or damage to his or her health during and in the course of the worker’s employment or while lawfully on the employer’s premises.
The duty of the worker also include to;
• Work conscientiously in the lawfully chosen occupation,
• Exercise due care in the execution of assigned work
• Obey lawful instructions regarding the organization and execution of his or her work