- June 25, 2012
- Posted by: essay
- Category: Sample essay papers
To consider the negligence liability of Quick Kitchens Ltd in the case of Mr. Johnson injury it is necessary to give the common idea of negligence, especially negligence in law, then to mark four basic elements of negligence claim and examine the case of Mr. Johnson for the presence of all these elements. Then it is needed to sum the results of examination and to draw the conclusion.
1. What is negligence in law. Negligence liability. Four elements.
First of all it is necessary to determine what the negligence is.
In law, as defined in Black’s Law Dictionary (5th Edition) “negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person of ordinary prudence would not have done under the circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances. Conduct which falls below the standard established by law for the protection of others is unreasonable risk of harm; it is a departure from the conduct expectable of a reasonably prudent person under like circumstances.”ť (Black’s, 1979, 119)
In other words, when someone who is duty to care breaches his or her duties and some object, another person or people suffer a financial loss or personal damage, the careless person is legally liable for any damage or loss and has to compensate it to the innocent party. The injured person (or its representative) is a plaintiff, the person supposedly guilty of error is defendant.
In a civil case, the plaintiff is the party alleging a legal wrong and the defendant is the party accused of committing the legal wrong.
There are four stages of every negligence claim that prove the defendant’s fault in consecutive order:
The legal duty. It is necessary to prove a legal duty of defendant to care of the plaintiff under the circumstances.
The breach of duty. Defendant supposedly failed to fulfill his or her duty through action, inaction or its conduct.
The cause of the accident. The actions of defender were the direct or indirect reason of the accident.
The cause of loss or damage. The loss and\or damage was the straight result of the accident.
To illustrate the interrelation of these four elements the hypothetical case of personal injury can be taken. Every driver has a duty to avoid collisions and to drive with reasonable caution.Â If a driver injures anyone he or she meets on the road as the result of his inability to use reasonable care, then this driver is liable to injured person. Let us suppose,Â that the first driver speeds through cross-over against a red light. Occasionally he hits the vehicle driven by the second driver. The last one had the right of way. If the second driver (plaintiff) blames the first one (defendant) in negligence, the plaintiff will need to prove the following:
Defendant owed a duty to drive with caution.
Running the red light, defendant breached that legal duty.
Careless drive of the defendant was the cause of collision.
The plaintiff was injured due to this collision.
If all the four elements are present – duty of care, breach of duty, causation and remoteness – defendant pays the compensation for
However damages have to reasonably foreseeable by the defendant. If a defendant could not foresaw that someone might be hurt by his or her actions, there may be no liability. Also it is rather difficult to prove the duty breach and its causation with the injury.
Thus, to make the conclusion regarding the case of Mr. Johnson and Quick Kitchens Ltd it is necessary to prove the legal proximity, the fact of duty breach and its cause-effect relationship with the injury.
2. SafetyÂ and traumatism in wood products manufacturing
Wood products manufacturing is rather hazardous because of the heavy weights, loud noise, dust and the dangerous of injury with moving parts of machinery. That is why the associations of wood products manufacturer, the Labor Departments and other influential organizations in many countries make high demands to the safety of the work.
Every year new guidelines appear in the countries with active forest and wood products manufacturing industry, new and revised safety standards are intended to guaranty the safe functioning of every wood enterprise. Besides, preventive measures are common as far on National level, as on the enterprise level. Among them are measures of fire and electrical safety, dust collection control, noise reduction control, control of lighting and heating and the control of correct behavior of employees.
Health and Safety Commission Annual Report shows that in spite of all the safety measures a fair amount of injuries happen in the woodworking industry every year.
“In 2003/4 there were 540 major injuries in the woodworking industry, of which 146 (27%) were caused by machinery.Â Plus there were other major injuries caused by kickbacks of timber and ejected cutters.Â For comparison, in the manufacturing industry, only around 10% of major injuries are caused by machinery.
Over two thirds of accidents occur at just 3 classes of machine: circular saws, vertical spindle moulders, and surface planers.
Causes of accidents can largely be attributed to inadequate guarding and poor systems of work, often resulting from insufficient training and supervision.”ť (Woodworking, 1)
In 2008-2009 the amount of injures in the woodworking industry was 762, and 106 in forest industry. Every fourth injure was caused by machinery.
The table on the web-site of Health and Safety Executive shows the number of injuries to employees by kind of accident, severity of injury and industry 2008/09. It can be easily counted, that total number of injures due to the contact with moving machinery in manufacturing industries is 2398 cases, 7 from them were fatal.Â 118 injures due to the contact with moving machinery happened in agriculture and forest industry. Approximately this is the firth part of all the injures in each industry. The number of injures due to the contact with moving machinery in manufacturing industries is the highest comparatively with other industries. (HSE Table 1)
Thus, it is obvious, that wood products manufacturing is very dangerous and the safety measures have to be respected.
Woodworking machines. Chain saw. Push-stick.
In this industry they use various types of tools and woodworking machines, such as saws for cutting wood, morticers and tenoners for cutting joints, planers and routers to smooth and to shape wood. Some machinery is operated manually and some machinery is controlled by computer. The chain saw is one of the most productive, efficient and dangerous power tools used in wood products manufacturing industry.
Circular saws present many hazards to operators.Â The term “circular saw”ť can be applied to any one of a number of sawing machines fitted with a circular blade. It includes circular saws mounted on a bench and used for ripping, deep cutting or crosscutting. It also includes swing saws and other types of saws used for crosscutting, in which the blade is moved toward the material. This is the most common circular sawing machine is bench-type circular saw it is used for cutting squared stock. The blade of the parallel plate type is mounted on a spindle below the table of the machine.
Wood machinist needs to be aware of three main hazards when using a circular saw:
”˘ Hands may come into contact with the blade teeth, either above or below the bench.
”˘ Timber may be kicked back by the revolving blade and hit somebody.
”˘ The blade may fracture or disintegrate.
Wood machinists work using written instructions and drawings.
The HSE information sheet prescribes workers to uses safety appliances.Â “Safety appliances such as well-designed push sticks and jigs are essential in keeping the hands in a safe position while maintaining full control of the workpiece during cutting. The use of a power feed will reduce the need for the operator’s hands to approach the cutters, and power feeds should be used whenever it is reasonably practicable.”ť (HSE sheet 3 15, p.1)
The pushstick is a hand tool used to prevent the hand coming into contact with the blade.Â Â It must be provided and be kept handy at every saw bench on which wood is being controlled by hand. It is strongly recommended to use a pushstick if the hand is likely to come dangerously close to the blade. For example, to remove the cut piece from between the blade, to remove off-cuts from the bench and to feed manually the ripping material less than 300 mm in length.
Thus, it is necessary to highlight that work with circular saw requires to follow the manuals and instructions. Particularly, every saw has to be equipped with the pushstick.
3. Personnel training and duties in wood manufacturing
HSE information sheet “Safe working at woodworking machines”ť declares that “No person should work at a woodworking machine unless they are competent. Competency can be achieved through successful completion of formal training courses and closely supervised in-house practical training. Ensure that people under the age of 18 have both the competence and maturity to operate.”ť (HSE sheet 3 15, p.2)
The duties and responsibilities of wood machines operators, supervisors and managers are described in the company documentation. However the common requirements do not differ a lot from company to company due to existing industry standards. Particularly the safety measures are the same in different workplaces because of standard tools and machinery usage.
Any person using woodworking machines must have the guidelines of its safe use and the responsibilities under the specific regulations.
Wood operators usually are able toÂ Â set up, operate and maintain woodworking machines, such as planers, moulders, drilling machines, routers, wood-turning lathes, chisels and saws, which they use to cut, plane, shape and sand wood to a required shape and size. To minimize the risk of injury, operators have to be cautious and to use proper safety measures.
High-skilled operator can become a supervisor.Â The duties of supervisor can be shortly described in three words: schedule, coordinate, control. Supervisor has not to limit his control on the good quality only, he or she has also to oversee the safety of operations.
People have to be properly supervised for the work and behave safety at all times. Every worker has to be aware of the hazards in his or her workplace.Â People have to use to safety appliances, e.g. pushsticks. Supervisor has to assure that all machinists are properly instructed for the work, sufficiently confident, reliable, experienced etc to do it safely.Â Supervisor has to assure that all the necessary safety devices are provided in the workshop and they are always used as necessary.Â Besides, supervisor regularly inspects the machinery to ensure that they are maintained properly.
Thus, the wood machinery operators have to work following the safety measures, meantime supervisors have to control their work and the work of machinery. Supervisor can stop machinery if its work becomes unsafe, as far as supervisor can remove the worker who does not follow safety measures.
4. Mr. Johnson and Quick Kitchens
“Mr Johnson is employed by Quick Kitchens Ltd as a wood machinist, operating a bench mounted circular saw.Â Six weeks ago, while operating the circular saw Mr Johnson caught his right (dominant) hand in the saw’s blade, severed 4 fingers and sliced the top off his thumb. On the day in question, he had worked a 12-hour shift and for the last six hours of his shift, his supervisor, Mr Bell, asked him to lend his push stick (which he had been told he should use for feeding small pieces of wood into the machine) to a colleague. At the time of the accident, he was working on an urgent job and was expected to turn out 100 pieces of cut timber per hour.Â Mr Johnson admitted that while working he had been distracted and had been chatting animatedly to another colleague.
Consider the negligence liability (if any) of Quick Kitchens Ltd.”ť
On the strength of foregoing facts it is possible to estimate the negligence liability of Quick Kitchens Ltd. Mr. Johnson get the injury because of his own security violation. He had worked without the pushstick, he had been distracted and had been chatting to colleague. However, there can be the case of negligence from the side of Mr. Bell, supervisor.
The legal duty.Â As supervisor, Mr. Bell had to monitor the work of Mr. Johnson, and provide the necessary safety tools, pushstick in particular.Â Mr. Bell had to make the reprimand to Mr. Johnson for his chatting with colleague and could even remove Mr. Johnson from the working place.
The breach of duty.
Mr. Bell did not remove Mr. Johnson from the workplace for his chatting. Which is more; Mr. Mell was the person who asked Mr. Johnson to lend his pushstick to a colleague. It is obvious that a colleague really needed the pushstick to feed the small pieces of wood into the machine. However it was Mr. Bell duty to provide the pushstick for every chainsaw.
The cause of the accident.
Mr. Johnson touched the saw’s blade by his own. However, Mr. Johnson have been worked hardly without the pushstick for a few hours before the accident, and Mr. Bell did not stop him.
The cause of loss or damage.
Mr. Johnson was injured with the saw’s blade, severed 4 fingers and sliced the top off his thumb.
Was the damage reasonably foreseeable by Mr. Bell? The answer is “yes”ť. As stated above, the wood machinery is very dangerous, especially chain saws.Â Statistics of injures in wood manufacturing industry clearly shows that the breach of safety measures is the main cause of injures. Besides it can be noticed that Mr. Johnson had the shift work.Â There are different opinions regarding the work in two and three shifts, though it was proved that 12-hours shift provoke the chronic fatigue syndrome. It is known that it was the second half of Mr. Johnson’s shift, so he could be tired. As well, the speed of work was rather high; Mr. Johnson had to turn out two timbers in a minute. These factors raised the risk of injury along with work without the pushstick, and Mr. Bell undoubtedly knew this.
Was the legal proximity between two parties present? The answer is “yes”ť again. Mr. Bell was the supervisor of Mr. Johnson.
Was the claim brought to the court within the relevant limitation period? I have no information if Mr. Johnson brought his claim to the court, but it has to be mentioned that relevant limitation period is usually either three or six years, meantime the accident with Mr. Johnson happened only six months ago.
Are the Quick Kitchens liable for the Mr. Bell’s actions? Yes. The employer usually is liable for its employee who acts negligently in performing his or her job duties, especially when it takes to safety measures.
Thus, the negligence liability of Quick Kitchens LTD. is proved. Supposedly Quick Kitchens will be forced to pay compensation to Mr. Johnson.