Advise the parties of any tortious liability arising from these events.

  The test is to ask what a reasonable man would do or would not do in the circumstances, Blyth v. Birmingham Waterworks Co.  The standard to apply is that of a reasonably competent qualified driver, Nettleship v. Weston, and Jim will have the standard of a reasonable competent driver applied to him.  In addition the standard embodies a socially acceptable level of knowledge, experience; skill and intelligence below which we cannot fall except at our peril, Holmes 2000. All these circumstances taken into consideration the courts are likely to hold that Jims’ conduct fell below the required duty of care in regards to reaching for his mobile telephone and speeding, that is driving without due care and attention.  Jim could have guarded against the risk of danger to Carol by driving slower and not reaching to retrieve his mobile telephone.  It was reasonably foreseeable that speeding coupled with carelessness would equate to a breach of a duty of care.

  Carol is a primary victim; a distinction of primary and secondary victims was made by Lord Oliver in Alcock v. Chief Constable of the South Yorkshire Police, a primary victim was a person directly involved in the accident, as Carol, as a participant and was actually exposed or reasonably believed himself to be exposed to the risk of physical injury, and a secondary victim would typically witness the accident, Cooke 2005.   The House of Lords decision in Page v. Smith clarified the distinction between primary and secondary victims, the House of Lords held, with Lords Keith and Jauncey dissenting, that in primary victim cases the duty of care was established by the reasonable foreseeability of physical damage to the plaintiff.

  A series of cases in the 1990s had held that none of the other emergency services was duty bound to go to the aid of persons in danger, although in 1968 it had been decided that a sick person who managed to present at an open hospital accident and emergency unit thereby effectively created a doctor-patient relationship, and so was entitled to reasonably careful treatment. In 2000, the Court of Appeal, in Kent v. Griffiths, held that an unreasonably delayed response by an ambulance service to an emergency call could be actionable negligence.  The ambulance service owes a duty of care to respond within a reasonable time once the 999 call has been made and acceptance of this call establishes proximity between the parties.  In distinction to the position of the fire service there is a relationship of sufficient proximity between the ambulance service and the maker of an emergency call so that the duty of care owed by an ambulance crew is firstly to arrive within a reasonable time of receipt of the call for assistance and secondly once at the scene to provide appropriate medical care and transport to hospital.

  There is no general duty of care for the public as a whole to assist anyone in distress under English law; however Ted has assumed the duty of care.  When professionals are being questioned the test for breach of duty of care is the Bolam v. Friern Hospital Management Committee test. Professionals are judged by the standard of the reasonable man who possesses the same skill as them. If Ted could be judged to have acted reasonably by a reasonable body of professional opinion then there will be no breach.

  Generally an attempt to rescue will not amount to a novus actus therefore the law will be generally be reluctant to release a negligent party, Jim, from his obligation.  A novus actus interviniens is an act which intervenes and can heave the effect of breaking the chain of causation. In this context the question is whether Ted and the ambulance should be held liable for the intervening conduct of Jim or for aggravating damage or injury which Jim has already caused, the intervening event has to be negligent or irresponsible. In essence in favour of the assertion that the brain damage was not caused by Jim is the novus actus interviniens of Ted and the delay by the ambulance. An assessment of causation has to be made as to whether Jims’ conduct actually caused the injury or damage to Carol, in other words was there a causal link between act and consequence in a factual sense or cause-in-fact.

The first test to determine factual causation is the "But for" test, Steele 2007  If the damage would not have occurred but for the Jim's breach of duty then the damage is a result of that breach, Barnett v Chelsea and Kensington Hospital Management Committee, there is no doubt that the brain damage would have not occurred had it not been for the actions of Jim.

  A causal link between Jim's conduct and the injury or damage to Carol has to be established even though the other requirements for liability are satisfied the facts may suggest that the chain of events is so out of the ordinary that, while there is cause-in-fact, it would be unjust to impose liability. This is known as remoteness of damage or legal cause. The test is reasonable foresight, qualified by considerations of ease of precaution; and seriousness of consequences. The negligent act shows that the damage suffered by Carol was as a result of the breach of duty which was not too remote a consequence.

A wrongful act can have a long chain of consequences, Jim will be liable for the consequences of his breach of duty which was reasonably foreseeable, The Wagon Mound,  were the court held that it was foreseeable that the spillage of fuel oil would cause fouling of slipways, however it was not foreseeable that the fuel oil would ignite and cause fire damage.

  The Egg shell rule refers to the fact that the wrongdoer must take his victim as he finds him, meaning that if Jim injured Carol he will be liable for whatever harm she suffers even if it is greater than expected, Smith v Leech Brain & Co. Ltd a pre malignant cancer triggered off by a splash of molten metal. In Robinson v Post Office the plaintiff cut his leg as he came down an oily ladder and was given an anti-tetanus injection which he was allergic to and as a result he suffered brain damage. The Post Office was held liable as it was foreseeable that the dangerous ladder would cause some injury. It was also foreseeable that such an injury would require medical treatment therefore the Post Office were liable for all the consequences of the treatment, thus it will not release Ted and the ambulance from liability because of Jims’ breach of duty.

In conclusion it would seem that Jim is liable for the injuries that Carol has sustained from his breach of duty; however he has a defence on novus actus interviniens in respect to the delayed arrival of the ambulance and Ted who have contributed to the serious deterioration of Carol.

Bibliography

Cases:

1. Alcock v. Chief Constable of the South Yorkshire Police [1992] 1 AC 310
2. Alexandrou v. Oxford [1993] 4 All E.R. 328
3. Anns v. Merton London BC [1978] AC 728 at 751
4. Barnett v. Chelsea and Kensington Hospital Management Committee [1969] Q.B. 428
5. Blyth v. Birmingham Waterworks Co (1856) 11 Ex 781
6. Bolam v. Friern Hospital Management (1957) 2 All E.R. 118
7. Capital and Counties plc v. Hampshire County Council [1997] Q.B. 1004
8. Caparo Industries Plc v. Dickman (1990) 2 A.C. 605
9. Donoghue v. Stevenson [1932] AC 562 HL
10. Grealis v. Opuni [2003] EWCA Civ 177
11. Nettleship v. Weston [1971] 2 QB 691
12. OLL Ltd v. Secretary of State for Transport [1997] 3 All E.R. 897
13. Page v. Smith [1996] AC 155
14. Robinson v Post Office [1974] 2 All ER 737, CA
15. Smith v Leech Brain & Co. Ltd [1962] 2 QB 405
16. The Wagon Mound [1961] AC 388, PC
17. Kent v. Griffiths [2001] Q.B. 36 C.A

Journal articles:

1. Bamforth, N., ‘The Application of the Human Rights Act 1998 to Public Authorities and Private Bodies’ (1999) CLJ 159.
2. Buxton, R., ‘The Human Rights Act and Private Law’ (2000) 116 LQR 48.
3. Holyoak, J., ‘Contract and Tort after Junior Books’ (1983) 99 LQR 591.
4. Litigation against English NHS ambulance services and the rule in Kent v Griffiths, Kevin Williams, Med. L. Rev. 2007, 15(2), 153-175
5. Moreham, N., ‘Privacy in the Common Law: A Doctorinal and Theoretical Analysis’ (2005) 121 LQR 628.
6. Morgan, J., ‘Tort, Insurance and Incoherence’ (2004) 67 MLR 384.
7. Personal injury; Road traffic accidents; Speeding; Tortious liability P. & M.I.L.L. 2003, 19(5), 2
8. Road traffic accidents - standard of care J.P.I. Law 2003, 2, C87-88
9. The liability of the emergency and rescue services, Ralph Lewis: J.P.I. Law 2000, 4, 198-207
10. The liability of the emergency and rescue services, Citation: J.P.I. Law 2000, 4, 198-207
11. Whitaker, S., ‘The application of the board principle of Headly-Byrne as between parties to a contract’ (1997) 17 LS 169.
12. Williams, G., ‘The Aims of the Law of Tort’ (1951) CLP 137.

Websites:

Books:

1. Atiyah, P. S., and Stapleton J., ‘Tort, Insurance and Ideology’ (1995) 58 MLR 820.
2. Atiyah, P. S., the Damages Lottery (Oxford: Hart Publishing, 1997), ch. 8.
3. Burrows, A., ‘Dividing the Law of Obligations’, ch. 1 in Understanding the Law of Obligations (Oxford: Hart Publishing, 1998).
4. Cane, P., The Anatomy of Tort Law (Oxford: Hart Publishing, 1997), ch. 6, pp. 181–6 and 201–4
5. Cane, P., The Anatomy of Tort Law (Oxford: Hart Publishing, 1997), ch. 7 ‘Anatomy, Functions and Effect’
6. Cane, P., Atiyah’s Accidents: Compensation and the Law? Chs 16 and 19.
7. Cane, P., Tort Law and Economic Interests.  (Oxford: Clarendon Press, 1966) ch. 10, ‘The Province and Aims of Tort Law’.
8. Jenny Steele, Tort Law, Text, Cases and Materials, 1st ed, oxford 2007
9. John Cooke, Law of Tort, 7th Ed, (Pearson 2005) p 67
10. Lawson-Cruttenden, T., and Addison, N., Protection from Harassment Act 1997 (Oxford: OUP), ch. 3.
11. Nicholas J McBride and Roderick Bagshaw, Tort Law, 2nd ed, Pearson, 2005
12. Oliver Wendell Holmes, the Common Law,
13. Smith, S., Contract Theory (Clarendon Law Series), (Oxford: OUP 2004), pp. 43–6, 72–4 and 96–7.
14. W. V. H. Rogers, Winfield & Jolowicz on Tort (16th edn, Sweet and Maxwell, 2002)

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