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Gillian has been operating her business providing nannying and childcare services in the absence of parents at different places. Gillian was providing her service for three children Harriet, Jin and Isla. Gillian was in the garden while the children were playing football. But Gillian left the children unattended and went to take a phone call. While she was on the call, Harriet kicked the ball that got stuck at a fence and Gillian told him to get it on his own. While bringing the football, Harriet fell from the fence as the fence was old, rotten and rusted. Gillian immediately gave first aid service to Harriet and left Jin and Isla unattended and they moved to the property next door. Jin climbed on a framework and got severe cuts on his legs as there was a sharp metal in the frame. Jin also suffered blood poisoning. There was also a loss of £20,000 due to the left tool as it caught fire.
List Issues raised:
a. Whether Gillian shall be made liable towards Harriet for the breach of duty under the law of negligence as provided under the law of tort?
b. Is Gillian responsible for the blood poisoning of Jin who moved to the nearby property and sustained injuries?
c. Whether Gillian shall be made liable under negligence law and breach of duty towards Jin and Isla and she left them unattended and they sustained injuries in the nearby property?
d. Whether Gillian shall be held liable for compensation to the children for the damages they have sustained due to her negligence?
e. Whether Gillian shall be held liable for the medical expenses of the three children?
f. Whether the license of Gillian for providing nannying and childcare service should be suspended?
g. Whether the amount of £20,000 that is of the tool that caught fire recoverable from Gillian?
The law relating to the issues outlined above is the law of negligence under the law of tort. Under the law of negligence, there are three requirements to be proved before the court is first, the defendant had a duty of care towards the plaintiff. Secondly, the defendant has breached the duty and lastly, due to the breach of the defendant, the plaintiff has sustained injury and damage.
In this case, Gillian had a duty of care towards the three children she was looking after as delivery of her childcare service. She breached her duty as she took the phone call and left the children unattended. She also made Harriet removed the ball from the fences despite knowing the fact that the fences are rotten and old. Due to her negligence, Harriet suffered injuries. Further, she also left Jin and Isla unattended and they moved to the nearby property and suffered an injury.
Due to the negligence of Gillian, all three children have sustained injuries. Hence, in this case, the law of negligence under tort law is made applicable. Further, the law relating to compensation shall also apply in this case and the awarded compensation shall be unliquidated damages depending on the discretion of the court. moreover, as per the facts of the case, the type of negligence for which Gillian shall be held liable is nonfeasance negligence.
Nonfeasance negligence is the type of negligence where the defendant (Gillian in this case) does an act intentionally neglecting the duty he has towards the plaintiff and as a result of the negligence, the plaintiff suffers loss and injury. Nonfeasance negligence is thus, failure in performing the duty.
The only argument Gillian may present before the court is that all the occurring incidents were accidents and Gillian was attending Harriet and giving him first aid that made her distracted from the two other children Jin and Isla. Hence, Gillian was not under the act of gross negligence that made the children suffer injuries. Gillian has been attentive in her service and that there have been no instances of accidents in her service.
To sum up, it is advised that Gillian shall be held liable for the injuries of the three children Harriet, Jin and Isla. She shall be made to pay compensation to the three children along with the medical expenses of the three children. Further, it is advised that Gillian raise the point of previous conduct and sincerity in her service as this shall avoid the suspension of her license from previous services.
Duration of the interview: 2 hours
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Goudkamp J, ‘Book review: A Theory of Tort Liability, Allan Beever, Hart Publishing’ (2018) 32 Professional Negligence
Hershovitz S, ‘Treating Wrongs as Wrongs: An Expressive Argument for Tort Law’ (2017) 10 Journal of Tort Law
Pal M, ‘Economic Analysis of Tort Law: The Negligence Determination (2019) Taylor & Francis