tort of negligence, the claimant must prove that they suffered harm because the
defendant did or failed to do something. To establish liability of the defendant,
it is required that the following components are sustainable before a
negligence claim; there was a duty of care that ought to have been provided by
the defendant to the claimant, there was a breach in this duty of care, and due
to the violation the claimant suffered damage as a foreseeable consequence1.
To establish whether BBC and Francine are liable for negligence and whether
they have a defense, the following is observed.
it should be established whether BBC and Francine owed Emma or Sarge a duty of
care. In Donoghue v Stevenson (1932),
it was determined that a person owed a duty of care to another if they could
foresee that their action might affect the other person. As a result, the
neighbour principle was established. To establish the existence of the duty of
care, it would be required that the test of reasonable foreseeability is
The question here is whether; BBC and Francine would foresee the damage that
would result from their action of letting Emma and Sarge on stage on that
It may be argued that following their
foreseeability on possible damages on stage, Francine had required that Emma
and Sarge meet her for a “safety briefing” which Emma had failed to
attend. However, in Chapman v Hearse
1961, it was established that the defendant was liable for negligence because
he failed to apply the necessary control while driving causing damages to the
plaintiff. Same applies to the case of Francine but not BBC because she was
aware that Emma had not attended the briefing but let her on stage anyway.
Therefore, while both BBC and Francine could foresee the damage due to the hole
on stage, Francine failed further, and as such, they were both liable for
Francine and BBC could be held liable for negligence if it was proved that the
care of duty had been breached. To determine the breach, the law requires proof
that a reasonable person would have foreseen the harm and that the defendant
could have taken necessary steps to prevent it3.
To substantiate a breach of a duty of care, a standard of care test is required
to determine a reasonable person4.
In the current case, the liable party is Francine and BBC, and on the question
of whether based on the standard of care test, they have the requirements to be
referred as reasonable, and the answer is yes. The reason is that BBC owns the
show and the stage while Francine is the stage director. This means that both
parties were aware of the hole and thus were responsible for informing Emma and
Sarge about the whole and also provided due guidance on how to navigate on
stage to avoid harm. In Overseas Tankship
(UK) Ltd v The Miller Steamship Co 1967, the case was concerned on the test
for breach of the duty of care of the defendant. It was held that a reasonable
person in the position of the welders working on the defendant’s ship would
ascertain the risk of fire. Accordingly, on the liability for negligence due to
a breach of the duty of care, BBC and Francine were liable.
to prove liability for negligence, the claim must prove the existence of a
proximate relationship between the claimant and the defendant to impose the
duty of care. This requirement considers the concept of closeness that may be
causal, circumstantial or physical5.
Regarding the current case, the question is whether the relationship between the
grieved parties and BBC and Francine has a sufficiently proximate to result in
a duty of care. In Nagle v Rottnest
Island Authority 1993, the court established that there was proximity
considering that it was the Board that had a responsibility to the people
attending the basis, and although the claimant was a member of the Board, it
was still the responsibility of the Board to ensure the safety of the claimant.
This applies to the duty of care due to proximity to Sarge despite the fact
that he is an employee of BBC and would probably have known about the hole.
the question of whether Francine and BBC would have any defenses, the answer is
yes, and this is based on contributory negligence. Contributory negligence is
said to have occurred if the behaviour of a claimant is below the necessary
standard for their safety and when cooperated with the negligence if the
defendant causes harm to the plaintiff6.
In two circumstances, contributory negligence can be proved in the current
case. First, Emma failed to attend the “safety briefing” which she was aware
that it was necessary for her safety while on stage and secondly, both Emma and
Sarge were drunk when they came to stage and as such they were not in the best
state of mind to judge situations in a way to avoid accidents. In Butter v Forrester 1809, it was ruled
that the damages suffered by the claimant were as a result of contributory
negligence. As a result, it was established that the claimant failed to employ
ordinary caution and, therefore, barred from compensation.
Against Certainty in Tort Law. Tort Law: Challenging Orthodoxy (Oxford, 2013).
The Emergence and Doctrinal Development of Tort Law, 1870-1930. (U. St. Thomas
LJ. 2013); 11:463.
Atiyah PS. Atiyah’s accidents, compensation, and the law (Cambridge University
Press; 2013 Feb 28).
Perry R. ‘The reasonable person.’ (NYUL Rev., 2012); 87:323.
CF. ‘The vulnerable subject of negligence law.’ (International Journal of Law
in Context, 2012 Sep); 8(3):337-53.
‘Palsgraf, Punitive Damages, and Preemption.’ (Harvard Law Review. 2012 May 1);