Tort Problem Question Answer

From these statements, we can conclude that a child cannot be found guilty of the offence, if she is not of a reasonable age in which she would understand and be able to decipher the situation and act in a way that could be considered a understandable and logical. Even though the law does not give any guidance towards a specific age from which a child could be held liable, we know that whether or not a very young child is guilty of contributory negligence is a fact to be assessed in the circumstances of the individual case. Having said so, the circumstances in the scenario given, prove that the Defendant 1 had indeed acted the way in which any ordinary 5 year old may have done, and that she cannot be held responsible for her actions as similar to the case of Jonas v Lawrence, where the 7 year old infant had been injured by a motorcycle accident when he had tried to cross the road without looking.

        Claim Against Derek

Claim against Negligence

In this scenario, Derek (hereby referred as the Defendant 2) had been driving well above the speed limit on the road when he had tried to swerve to prevent hitting Defendant 1. Driving above the speed limit is an offence as concluded by Lord Hope,

…a duty is owed to other road users by the driver of a vehicle which causes an accident. If commonplace situations of that kind had to be analysed, the conclusion would be that the duty is owed not simply because loss, injury or damage is reasonably foreseeable. It is because there is a relationship of proximity between the employer and his employees and the driver and other road users. This is sufficient in law to give rise to a duty of care.

This concludes that Defendant 2 had a duty of care towards the other road users (the Claimant and Defendant 1 included) and hence, had breached this duty of care by exceeding the driving speed limit. Exceeding the speed limit, especially in a case where there is a school nearby, is considered an offence by the Highway Code. Speeding in turn had caused the Defendant 2 to hit the Claimant and cause him physical injury.  Now the question rises whether the Defendant 2 is to be held completely liable for the damages suffered by the Claimant and hence the value of his compensation.

Lord Pearce had said

The defenders are therefore liable for all the foreseeable consequences of their neglect… When an accident is of a different type and kind from anything that a defender could have foreseen he is not liable for it…

Taking this statement into reference, we must now decide whether Defendant 2 could have foreseen the events that had occurred due to his negligence. If we place a reasonable and prudent person in Defendant 2’s place, would he have foreseen an accident occurring due to his speeding? It should be natural to assume so. Even though he managed to swerve just in time to prevent hitting the Defendant 1, in doing so, he had caused an accident with the Claimant. If the ‘but for’ test was applied in this case, can we conclude that, but for the Defendant 2’s careless act, the Claimant would not have suffered any harm? I believe so.

So it could be said that, making a claim under negligence would allow the Claimant to receive compensation as it could be proved that Defendant 2 had been negligent and breached his duty of care towards the Claimant causing him physical damage.

Defence

Since Defendant 2’s swerving avoided an accident with Kylie (Defendant 1), he was justified in making the split-second decision to swerve. I think that under the duty of reasonable care analysis, Defendant 2 acted with the care of an ordinary and prudent person under the circumstances of an emergency.

Even so, the defence could take up the fact that the Claimant had crossed the road without looking and hence contributed to the events that led to his injuries. In this case, the Claimant’s conduct fell below standards of ordinary self-protection since he had gone against the Rules for Pedestrians in the Highway Code which shows the safe methods in crossing the road. That cooperated with the negligence of the defendant in causing the injury and hence liability cannot be completely imposed on Defendant 2.

However, the Defendant would still be partially liable and must compensate for his part as per the Law Reform (Contributory Negligence) Act 1945, which states that,

...a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage...

Hence, Defendant 2 will be liable to compensate for the injuries, but due to the contributory negligence by the Claimant, the compensation would be reduced, as so in the case of Froom and others v Butcher in which the claimant’s injuries taken to account were reduced by 25% due to his contributory negligence by not wearing a seatbelt when the accident had taken place.

        Claim Against Sunnyside Primary School

Claim Against Negligence

The Sunnyside Primary School had omitted to inform parents of the children studying at that school that the students were going to finish 10 minutes earlier than usual that day. The Defendant 2 was a student of the school and had left the school and crossed over to the main road leading to the accident. Can we conclude that the chain of causation is still present and unbroken?

Defence

For this we have to look again at the foreseeability test. Could the Defendant 3 have possibly foreseen the damages caused to the Claimant due to their omission? It is said by Lord Pearce in the case of Hughes v Lord Advocate,

... But to demand too great precision in the test of foreseeability would be unfair to the pursuer since the facets of misadventure are innumerable...

Meaning that even though an omission by the school can be considered a negligent act, as it had a duty towards the students and their parents, and they breached it, causing a loss to a third party, they cannot be held liable since a reasonable man could not have foreseen the circumstances that prevailed.

Also since the acts of the Claimant, Defendant 1 and Defendant 2 can be considered outright reckless and outlandish; it is very likely to break the chain of causation.

Conclusion

The Claimant could claim under negligence against Defendant 2 (Derek) and claim a reduced compensation for the injuries to his left leg. The injuries to his right leg were caused by the clumsiness of the Claimant and hence cannot be considered as damage caused due to the events in the scenario. This is substantiated by the fact that the hospital had discharged the Claimant, which brings us to believe that the Claimant should be capable of doing daily necessary tasks like using the stars. Proximity also plays a role in deciding here, as one whole day had passed between the accident and the falling from the stairs, which shows that there is reason to hold that there was a gap inbetween.

Bibliography

• Lexis Library <http://www.lexisnexis.com/uk/legal/>
• Blackstone’s Statutes; Contract, Tort & Restitution 2009 – 2010
• Opinions of the Lords of Appeal for Judgement in Cause [Mitchell (AP) and another v Glasgow City Council (Scotland)] <http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090218/mitche-1.htm>
• Charlesworth & Percy on Negligence by His Honor Judge Christopher Walton; His Honor Judge Simon E Wood; Roger Cooper; His Honor R A Percy
• Causation in Law by H.L.A Hart and Tony Honore
• Law Express : Tort Law by Emily Finch and Stefan Fafinski
• Children in tort law, Part 2, Volume 2 By Miquel Martín-Casals, Bertil Bengtsson, European Centre of Tort and Insurance Law

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