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Maura Blake, a single mother, claims that her dismissal from employment is the fault of a daycare centre called Totspace. Eighteen months ago, Maura enrolled Harold (then nine) and Linus (then six) in a Totspace daycare program that included day trips on PA days to local attractions. Linus has severe behavioural problems that still have not been fully diagnosed. When confronted with new situations and new people, he often has violent tantrums. The Totspace staff had mentioned on four separate occasions that caring for Linus on day trips was a challenge for staff and raised safety concerns. Maura’s response was that Totspace needed to be prepared to deal with all children, not just easy children. She also suggested that if Linus began to act out, he be allowed to join his brother’s group, although he did not meet the age requirements. On August 11, Totspace took the children, including Harold and Linus, on a day trip to the Toronto Zoo. Near the end of the outing, Linus was getting tired and began acting out. His counsellor, Ken Andrews, tried to get him under control. Linus went into a tantrum, throwing himself down on the grass, screaming, and beating the ground with his fists and feet. Ken, who had eight other children in his group to care for, thought he saw Lynn Gordon with her group of children, which included Harold, standing under some trees nearby. Ken picked up Linus, held him still and pointed the group under the trees out to him. He said, “Look, there’s your brother! Go over to his group and talk to him. Tell Lynn I said it was OK.” Linus took off towards the group under the trees at a run. On the ferry back to the Toronto docks, Ken asked Lynn if Linus was OK. Lynn told him that she had not seen Linus, nor had she been anywhere near the location where Linus had thrown the tantrum. Ken and some other Totspace staff searched all decks of the ferry, and did a roll call upon disembarking at the docks. It seemed that Linus had been left behind on the island. A counsellor immediately took the next ferry back over to the island, and located Linus. He had been alone for over two hours and was hysterical. His mother, who had phoned the daycare before he was discovered, was also hysterical. Maura withdrew Harold and Linus from Totspace immediately after this incident. Her then employer was understanding of her situation and allowed her to stay home from work on PA days. At around this time, Maura began have nightmares about losing Linus and not being able to find him. She also began having panic attacks. In October of the following year, Maura’s boss was transferred to another office. Her new boss would not allow her to take PA days off if she was needed in the office. This put Maura under even more stress. She began leaving work early without permission and taking extra sick days. Her productivity dropped. She received several warnings, and in February she was dismissed for cause. Maura has commenced a civil action in negligence against Totspace and Ken Andrews. She is claiming damages for mental illness (anxiety disorder) and for lost income due to her job loss. She has a physician’s report supporting her claim. Totspace has contacted another physician, who will be its witness at trial and will give evidence that it is common for parents of children with severe behavioural problems to suffer from depression, anxiety, and panic attacks. It is especially common if they are single parents. a) Applying the relevant and correct principle(s) of law discuss the following questions: Did Totspace owe Linus a duty of care? Did Ken Andrews owe Linus a duty of care? Did either or both of them owe Maura a duty of care? b) If yes to (a), applying the relevant principles of law explain and advice Maura what she must establish for a successful action in court. |
✅ Answers (2)
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Private answer
Section 1 Solution Introduction Professional liability is determined based on contract, the tort of negligence, and fiduciary duty. A professional must provide standard service per their professional expertise. Under the tort of negligence, the duty of care is extended to third parties if they are injured under foreseeable circumstances. Compliance with the statutory standard is used to determine whether a professional acted with reasonable care or not. To prove negligence, one must establish that there existed a duty of care, breach of the duty of care, causation, and damage. Duty of care implies that the harm that results from action was a reasonably foreseeable consequence of the dependent’s action.
Did Totspace owe Linus a duty of care? Yes, Totspace owed Linus a duty of care. According to Lord Bridge, in Caparo Industries plc v Dickman (1990), "It is never sufficient to ask whether A owes B a duty of care". Bridge argued that to determine whether someone owes another a duty of care, it is necessary to consider the scope of the duty of reference to the kind of damage party A should save party B from and harmless Miller & Jentz (P. 123). Totspace was aware of the risk of letting Linus and Halord join the others on a trip. Tospace was supposed to offer reasonable care to the vulnerable Linus and Halord during the trip. The standard of care was breached by acting less carefully towards Linus. A reasonable person would consider the service accorded to Linus as less careful, and not considerate of his condition. Did Ken Andrews owe Linus a duty of care? Yes, Ken Andrews owes Linus a duty of care. The law requires every person to take reasonable care for the safety of those that may be harmed by another person’s actions. Ken ought to have reasonably foreseen the risk of injury to Linus by sending him along to another group while unstable. In that scenario, it would be apparent to a prudent person that the conduct of Ken Andrews during the trip was likely to cause injury or harm to either Linus or other children Miller & Jentz (P. 123). Did either or both of them owe Maura a duty of care? Totspace owes Maura a duty of care, but Ken Andrews does not owe her a dutiy of care. After the incident, it was apparent that Maura would experience a hard time psychologically dealing with the incident and affect her role in the daycare. Totspace continued to pressure her with warnings that caused further mental pressure. On the other hand, Ken Andrews did not owe Maura a duty of care because he could not possibly foresee any possible damage or harm to her in his action during the trip.
As per the Caparo Industries plc v Dickman (1990) case, Mura needs to establish four things for successful court action. She must prove that Totspace owed her a duty of care as an employee and a vulnerable single mother. Totspace breached that duty by not allowing her to take PA days off and dismissing her. She suffered mental illness due to the breach of duty of care by the new manager. Maura’s mental condition was directly associated with the negligent actions of Totspace that led to her dismissal. Lastly, her mental illness was not remote but was foreseeable.
Bibliography Lecture 3 Negligence [PowerPoint presentation]. (Slide 13-15). Miller R. & Jentz G. Cengage Advantage Books: Business Law Today: The Essentials. (P. 123) Negligence: The Duty of Care – General Principles and Public Policy. (P. 23 & 24). Retrieved from: http://www.cilexlawschool.ac.uk/wp-content/uploads/2018/10/HQ13-Law-of-Tort-Sample-2018.pdf Marked as spam
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Private answer
SOLUTION Professional liability is determined based on contract, the tort of negligence, and fiduciary duty. A professional must provide standard service per their professional expertise. Under the tort of negligence, the duty of care is extended to third parties if they are injured under foreseeable circumstances. Compliance with the statutory standard is used to determine whether a professional acted with reasonable care or not. To prove negligence, one must establish that there existed a duty of care, breach of the duty of care, causation, and damage. Duty of care implies that the harm that results from action was a reasonably foreseeable consequence of the dependent’s action.
Did Totspace owe Linus a duty of care? Yes, Totspace owed Linus a duty of care. According to Lord Bridge, in Caparo Industries plc v Dickman (1990), "It is never sufficient to ask whether A owes B a duty of care". Bridge argued that to determine whether someone owes another a duty of care, it is necessary to consider the scope of the duty of reference to the kind of damage party A should save party B from and harmless Miller & Jentz (P. 123). Totspace was aware of the risk of letting Linus and Halord join the others on a trip. Tospace was supposed to offer reasonable care to the vulnerable Linus and Halord during the trip. The standard of care was breached by acting less carefully towards Linus. A reasonable person would consider the service accorded to Linus as less careful, and not considerate of his condition. Did Ken Andrews owe Linus a duty of care? Yes, Ken Andrews owes Linus a duty of care. The law requires every person to take reasonable care for the safety of those that may be harmed by another person’s actions. Ken ought to have reasonably foreseen the risk of injury to Linus by sending him along to another group while unstable. In that scenario, it would be apparent to a prudent person that the conduct of Ken Andrews during the trip was likely to cause injury or harm to either Linus or other children Miller & Jentz (P. 123). Did either or both of them owe Maura a duty of care? Totspace owes Maura a duty of care, but Ken Andrews does not owe her a dutiy of care. After the incident, it was apparent that Maura would experience a hard time psychologically dealing with the incident and affect her role in the daycare. Totspace continued to pressure her with warnings that caused further mental pressure. On the other hand, Ken Andrews did not owe Maura a duty of care because he could not possibly foresee any possible damage or harm to her in his action during the trip.
As per the Caparo Industries plc v Dickman (1990) case, Mura needs to establish four things for successful court action. She must prove that Totspace owed her a duty of care as an employee and a vulnerable single mother. Totspace breached that duty by not allowing her to take PA days off and dismissing her. She suffered mental illness due to the breach of duty of care by the new manager. Maura’s mental condition was directly associated with the negligent actions of Totspace that led to her dismissal. Lastly, her mental illness was not remote but was foreseeable.
Bibliography Lecture 3 Negligence [PowerPoint presentation]. (Slide 13-15). Miller R. & Jentz G. Cengage Advantage Books: Business Law Today: The Essentials. (P. 123) Negligence: The Duty of Care – General Principles and Public Policy. (P. 23 & 24). Retrieved from: http://www.cilexlawschool.ac.uk/wp-content/uploads/2018/10/HQ13-Law-of-Tort-Sample-2018.pdf Marked as spam
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