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How to answer problem questions in negligence
Learn how to answer any potentially difficult questions related to negligence with our question and answer examples.
Question and answer
Andy booked his car into Brian’s garage for a service. When he collected the car Brian told Andy that the work was complete, but, in fact, Brian had forgotten to fully tighten the handbrake cable. Andy lived on a hill and when he got home he applied the handbrake and got out. The handbrake failed to hold the car which rolled down the hill and crushed Cathy, who was loading shopping into the back of her car.
As a result of the collision, Andy’s car was damaged and Cathy was injured. Discuss the rights and remedies of Andy and Cathy against Brian.
Duty of care
It firstly has to be shown whether Brian owed a duty of care to Andy and Cathy. The test used is the three stage test from Caparo v Dickman.
o Was there proximity of relationship between Brian on the one hand and Andy and Cathy? It was shown by Donoghue v Stevenson that a consumer is a neighbour-in-law of a manufacturer and so there is proximity between Brian and Andy. Although Cathy is not a consumer she is another road user affected by Brian’s work so there could be proximity for her.
o Was loss or damage foreseeable? For Andy it is foreseeable that if Brian does not do his job properly Andy’s car could be damaged and damage could be caused to another road user (Cathy).
o Is it fair just and reasonable to impose a duty of care on Brian? There are no public policy reasons to protect Brian and so he would owe a duty of care to both Andy and Cathy.
Breach of duty
Did Brian’s work fall below a certain standard? According to the Bolam test he would be judged according to the standard of work of other car mechanics. The evidence suggests that as he forgot to tighten the cable this is something the reasonable mechanic would not do and he fell below the standard of the reasonable mechanic.
Loss or damage
Did Brian cause the loss or damage to both Andy’s car and to Cathy?
From the Barnett case it has to be asked ‘but for Brian’s breach of duty would the damage to Andy’s car have occurred – was it a reasonably foreseeable outcome? The reasonable person would answer that if Brian failed to do his job properly a customer’s car could be damaged and so this test is satisfied.
For Cathy it has to be shown (using the Wagon Mound case) that her injury was not too remote a consequence of Brian’s failure. From Hughes v Lord Advocate it is the general type injury that has to be foreseeable – not the exact injury suffered. Again a reasonable person would say that Cathy’s injuries were not too remote a consequence of Brian failing to do his job and so she could claim too.
Andy could claim for the cost of repairs to his car and if it was a ‘write-off’ then for a replacement. He could also claim for the cost of hiring a car while his was off the road. These would be special damages.
Cathy could claim damages for personal injury as general damages including pain and suffering, loss of amenity, loss of earnings and future medical expenses. If Brian refused to pay she could take her case to court. Which court she would claim in and the amount she would claim would depend on the severity of her injuries.