The type of damage has to be foreseeable, in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (wagon mound) it was held that this meant that the general type of harm done must have been foreseeable. (This is a Privy Council case but the domestic courts have followed this ratio many times, an example being Heaven v Mortimore so it can still be considered as binding English law) Clearly a broken arm is a foreseeable event of a car accident. The fact that she suffered a much more severe injury is not relevant because although a person without her condition would have suffered a lesser break and bruises it is the type of harm that must be foreseen and not the degree, and even if this wasn’t the case the courts have held the thin skull rule to apply in tort of negligence in the case of Smith v Leech Brain. This means the claimants own vulnerability cannot be used to reduce liability.
Caroline also lost her eye, Although this happened several events down the line this type of remoteness has never been an issue in determining causation so the but for test was still passed. It is not unforeseeable that an eye could be lost in a car accident, the means by which it happened was unforeseeable to any reasonable man but this is irrelevant as shown in the case of Huges v Lord advocate. All that matters is that the outcome was reasonably foreseeable and the fact that it happened by an unlikely means is irrelevant.
The liability disclaimer is void under section 149(2) Road Traffic Act 1988 which has the effect of voiding any agreement to limit a driver’s liability to any passengers.
Peter may try to argue that Caroline consented to the risk of an accident. Consent requires knowledge of and acceptance of a risk as was the ratio in Morris v Murray. Peters argument may be that Caroline saw the disclaimer and accepted the risk of the insurance company refusing to be liable for her if there was an accident by getting in the car anyway. This can be distinguished from the rule under s.149 of the road traffic act because the act is all about agreements to limit liability you don’t need to know of any specific risk, consent on the other hand requires knowledge of a risk and is all about personal acceptance, not agreeing with someone else. In Morris v Murray the respondent was drunk and this is what created the knowledge of the risk, Caroline didn’t know Peter was likely to drive negligently due to being in a rush and so lacked the knowledge that was required in this case. However in Murray v Harringay Arena and Wooldridge v Sumner spectators at a sporting event were held to have consented to any harm that they suffer as a result of being close to the action during the normal nature of play (that is to say any harm that is caused by the game proceeding according to the rules). This means it may be possible for peter to argue that the same principal applies to passengers during the normal course of driving if they know the driver is not fully insured. This argument is unlikely to succeed because not having full 3rd party insurance is illegal and in the absence of insurance the driver becomes liable anyway.
Caroline was not wearing a seat belt. Section 1(1) Law Reform (Contributory Negligence) act 1945 states that
“Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, 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”
In the case of Froom v Butcher it was held (ratio) that where a passenger fails to wear a seat belt and doing so would have prevented injury the contributory negligence reduces the damages by 25% and obiter statements were made to suggest that if wearing a seatbelt would have substantially reduced the injury damages will be reduced by 15%, this obiter statement was the ratio of the case of Palmer v Kitley. It is not clear from the facts given if Caroline’s injury’s would have been reduced or prevented had she worn a seatbelt but it is clear from the case law that the appropriate reduction of damages is 15-25%. In conclusion Peter is definitely liable for Caroline’s injury; His liability is guaranteed to be reduced by 15-25% for contributory negligence. There is a very remote chance that the court will fully negate liability on the grounds of consent.
Nisha was a pedestrian and Peter had to swerve in order to ovoid hitting her. Swerving is normally and instinctual reaction, this means the proximity of Nisha to the car and the foreseability that she would be harmed must have been great enough to satisfy Lord Bridges test in Caparo. Furthermore the ratio of Lord Stewart-Smith in Langly v Dray Cleary identifies Nisha, as a pedestrian, as being owed a duty of care by drivers.
The same difficulty in determining if a duty of care had been breached in Caroline’s case applies here. It is likely that a court would find that there has been a breach because 40mph is usually over the speed limit in built in areas and the fact he had to swerve implies that this was too fast to stop.
There is a 40% chance that the ambulance services delay in arriving caused harm so it needs to be discussed if or not the ambulance service also has some liability. `In Capital and Counties plc v Hampshire CC Lord Stewart-Smith held that
“The fire brigade are not under a common law duty to answer the call for help and are not under a duty to take care to do so. If therefore they fail to turn up or fail to turn up in time because they have carelessly misunderstood the message, got lost on the way or run into a tree, they are not liable.'”
Indeed in Alexandrou v Oxford it was observed that
“It is unthinkable that the police should be exposed to potential actions for negligence at the suit of every disappointed or dissatisfied maker of a 999 call. I can see no sufficient grounds for holding that the police owed a duty of care to this plaintiff on or after receipt of the 999 call ... if they would not have owed a duty of care to ordinary members of the public”
So it appears that the emergency service owe no common law duty to help somebody who calls them because their duty is owed to the public at large and furthermore to hold a public
service liable in the face of one individual would be “unthinkable” as it was put in the Alexadrou case, meaning the requirement of being fair just and reasonable as required under the Caparo ratio is not met. One could argue that the ambulance service owes a special duty to carry out their roll in society, indeed before 2006 the secretary of state had a power to provide and manage ambulance services under Section 3(1) National Health Service Act 1977 (although this has now been revoked by National Health Service (Consequential Provisions) Act 2006 Sch.4 para.1 I still think it is important to mention because the power almost certainly still exists but I cannot find the relevant statute) however In East Suffolk Rivers Catchment Board Appellants v Kent (1940) it was held that
“Where a statutory authority is entrusted with a mere power it cannot be made liable for any damage sustained by a member of the public by reason of a failure to exercise the power.
In spite of what the general principals appear to be I believe that the ambulance service did owe Nisha a duty of care and to support this I turn to the case of Kent v Griffiths which has distinguished this type of situation. Lord Woolf held that
“The Capital and Counties case was arguably distinguishable upon the grounds that the duty to fight fires remains throughout a duty owed to the public at large. By contrast once a call to an ambulance service has been accepted, the service is dealing with a named individual upon whom the duty becomes focused. Furthermore, if an ambulance service is called and agrees to attend the patient, those caring for the patient normally abandon any attempt to find an alternative means of transport”
In Nishas case the ambulance service had promised to aid a named individual (the term named individual here appears mean the individual can be identifiable in any way and not just limited to an actual name because ambulance crews don’t always know the casualties name but always have some form of identifying information, if only one person needs help) as a result Peter made no further attempts to help her when he could have done so easily therefore the distinction found in this case applies to this situation. Since an individual has become the focus it can no longer be held that liability would not be fair just and reasonable like it was in the Alexanria case. Furthermore it was also held that although the obligation under statute is only a mere power there was no reasonable ground not to exercise that power, therefore the ratio in Associated Provincial Picture Houses v. Wednesbury Corporation
applies meaning they can be held to have had a duty under statute in spite of the East Suffolk Rivers Catchment Board Appellants v Kent ruling because it they are a public body and had no reasonable grounds to act (or more to the point fail to act) in the way they did.
The case of Kent v Griffiths was so similar to that of Nishas that it will almost certainly convince a court that it ought to find that the ambulance service held and then breached a duty of care towards her.
In Nishas case determining causation is complicated by the fact that there are 2 successive torts and there are conflicting authorities on this issue. In Harwood v. Wyken Colliery Co a superseding illness which would have caused the same harm did not relieve the defendant of liability after that point because it was held that there were now multiple causes and so the original was still valid (in spite of no longer strictly passing the but for test). In Baker v Willohby it was held that the a tortfesor continues to be liable for all the harm caused by his tort even if a second tort would have caused the same harm, the first tortfessors only escapes liability for harm which is no longer occurring due to the second tort. However later in Jobling v Associated Dairies the tort would have reduced the plaintiffs working life by 12 years, however 3 years later the plaintiff suffered an incapacitating illness. The court held that the respondent was only liable for the first 3 years since because of the illness it could no longer be said that but for the tort the remaining 9 years of loss would not have been suffered. These authorities are extremely contradictory but the baker case can be distinguished by the fact that the second cause was a tort where as in the other two cases it was an illness (described as a “vicissitude of life” in jobling) due to this distinction jobling has not overruled baker on this point. So because both events in Nishas case were torts any liability Peter has will not be void by the ambulance services tort and the ambulance service can only be held liable for additional harm that only they caused. It is difficult to say if Peter will be held liable or not. Although his acts clearly satisfy the but for test in relation to all of Nishas injuries and the fact that the means by which the harm occurred was unusual is irrelevant under the Huges v Lord advocate doctrine suffering a form of paralyses as a result of an accident at 40mph may be
held to be too remote an outcome, this is very much a borderline issue one judge may think it’s a foreseeable outcome another would disagree.
If causation is to be established against the ambulance service by the traditional but for test Nishas claim will fail because on the balance of probabilities she only had a 40% chance of avoiding the harm. Some judges have shown support of awarding damages for a loss of the chance to ovoid harm. For example In Greeg v Scott Lord Nicholls stated that
“The way ahead must surely be to recognise that where a patient is suffering from illness or injury and his prospects of recovery are attended with a significant degree of medical uncertainty, and he suffers a significant diminution of his prospects of recovery by reason of medical negligence whether of diagnosis or treatment, that diminution constitutes actionable damage This is so whether the patient's prospects immediately before the negligence exceeded or fell short of 50%”
Lord Hope in the same case, Lord Donaldson in Hotson v E Berkshire AHA and Simon Brown J in Bagley v. North Herts Health Authority among other judges have all made similar comments, however such support has always come from dissenting judges or been disapplied by later cases, therefore loss of a chance to recover is not yet definitely part of English law.
It is not necessary to consider why other judges have not favoured this approach or to find argument in favour of applying the loss of chance approach to this case because the ratio in coote held that a loss of chance of less than 50% could never succeed because the claim will not have been proved on the balance of probabilities and this is legally binding, Nishas chance of avoiding the stroke was only 40%.
In conclusion the ambulance service will not be held liable, Peter may or may not be held fully liable, and if he is not them Nisha will have no remedy in tort.
Norman was safely inside a building and not on the road at the time so Langly v Drey cannot be used to show that the general principals of duty are satisfied because at the time not only was he not on the road he was safe inside a building, furthermore in Bourhill v Young a
motorcyclist was not held liable because the plaintiff was so far away from the accident that harm was not foreseeable, this shows us that the need for sufficient proximity can mean physical proximity and Norman was clearly too far away to be sufficiently proximate or in reasonable contemplation, how can someone who is in a building be held to be owed a duty of care when someone who is some distance away but still on the road is not?
However Norman came to the scene to rescue Peter because he predicted a reasonable danger of fire and if a reasonable person contemplates that there is a reasonably foreseeable chance of further danger he will come to aid. To support this view I turn to the case of Haynes v Harwood where a duty of care was held to be owed to a person who was in a similar situation in that he saw danger on the road outside a building but he himself was safely in the building. The plaintiff in this case was a policeman but I don’t think this is a relevant distinction because although a policeman has a strong moral duty to help the citizens are in danger a private citizen in Normans situation also does as I have explained above.
As with Caroline’s case the cause the breach (which caused the situation Norman wanted to help in) was Peters use of the mobile phone, so this needs no further discussion.
I believe that Normans claim will fail on the grounds of causation because the type of harm he received was not foreseeable as I have already discussed using the wagon mound case. Norman was rescuing Peter from the possibility of the petrol igniting; this would cause burns but not a broken bone. Although some judges may feel that someone tripping and breaking a bone while running to help on the scene is foreseeable, it was certainly foreseeable that a rescuer would move with haste but would most people really contemplate that he might trip up? Possibly but think of it this way would a school teacher refuse to let children run and play on a similar grass surface to that which Norman tripped up on because they might fall over and get badly hurt? No a school teacher would not!
If Normans claim is awarded the only defence that could apply to Norman is consent, the case of Haynes V Harwood shows that the courts do not accept that rescuers in emergencies
have voluntarily accepted a risk just by helping because they are under a moral obligation to help meaning it is not entirely free willed.
In conclusion Normans injury may or may not be held to be sufficiently foreseeable and so his case could go ether way.
BIBLIOGRAPHY
Books
John Cooke, Law of tort (8th edition, Pearson Longman, 2007)
Legislation
Section 1(1) Law Reform (Contributory Negligence) act 1945
Section 3(1) National Health Service Act 1977
National Health Service (Consequential Provisions) Act 2006 c. 43 Sch.4 para.1
Section 26 Road Safety Act 2006
Section 149(2) Road Traffic Act 1988
Cases
Alexandrou v Oxford [1993] 4 All E.R. 328
Allied Maples Group Ltd. v Simmons & Simmons [1995] 1 W.L.R. 1602
Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223
Baker v Willohby [1970] 2 W.L.R. 50
Bagley v. North Herts Health Authority (1986) 136 N.L.J. 1014
Blyth V Birmingham waterworks (1856) 11 Exch. 781
Bolton and Others Appellants; v Stone Respondent. [1951] A.C. 850
Bourhill v Young [1943] A.C. 92
Bradford v Robinson Rentals Ltd. [1967] 1 W.L.R. 337
Caparo Industries Plc. Respondents v Dickman [1990] 2 A.C. 605
Capital and Counties plc v Hampshire CC [1997] Q.B. 1004
Chaplin v Hicks [1911] 2 K.B. 786
coote (1988) 62 ALJ
Cork v Kirby Maclean [1952] 2 All E.R. 402
Cutler v United Dairies (London), Limited. [1933] 2 K.B. 297
Davies V Taylor [1974] A.C. 207
Donohugh v Stevenson [1932] A.C. 562
East Suffolk Rivers Catchment Board Appellants v Kent [1941] A.C. 74
Froggatt v chesterfield 2002 WL 31676323
Froom v Butcher [1975] 3 W.L.R. 379
Glasgow Corporation v Muir [1943] A.C. 448
Greeg v Scott [2005] 2 A.C. 176
Hall v Brooklands Auto Racing Club. [1933] 1 K.B. 205
Haley Appellant; v London Electricity Board Respondents. [1965] A.C. 778
Harwood v. Wyken Colliery Co [1913] 2 K.B. 158
Haynes v Harwood [1935] 1 K.B. 146
Heaven v Mortimore (1967) 202 E.G. 615
Hill Appellant v Chief Constable of West Yorkshire Respondent [1989] A.C. 53
Hotson v E Berkshire AHA [1987] 3 W.L.R. 232
Huges v Lord advocate [1963] AC 837
Jobling v Associated Dairies [1982] A.C. 794
Kent v Griffiths [2000] 2 All ER 474
King v Sussex Ambulance Service Nhs Trust [2002] I.C.R. 1413
Kitchen v Royal Air Force Association and Others [1958] 1 W.L.R. 563
Langly v Dray [1998] P.I.Q.R. P314
Latimer Appellant; v A. E. C. LD. Respondent. [1953] 3 W.L.R. 259
Michael Victor Gawler v Paul Raettig [2007] EWCA Civ 1560
Miller and Another v Jackson and Others [1977] Q.B. 966
Morris v Murray [1991] QB 6
Murray v Harringay Arena [1951] 2 K.B. 529
Nettleship v Weston [1971] 2 Q.B. 691
Ogwo v Taylor [1988] A.C. 431
Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd Privy Council [1961] AC 388
Palmer v Kitley [2008] EWHC 2819 (QB)
Perrett v Collins and Others [1998] 2 Lloyd's Rep. 255
Paris Appellant; v Stepney Borough Council Respondents. [1951] A.C. 367
Read Appellant; v J. Lyons & Company, Limited Respondents. [1947] A.C. 156
Robinson v Post Office and Another [1974] 1 W.L.R. 1176
Smith v Leech Brain [1962] 2 QB 405
Spring Appellant v Guardian Assurance Plc. and Others Respondents [1994] 3 W.L.R. 354
Tremain v Pike [1969] 1 W.L.R. 1556
Watson v British Boxing Board of Control Ltd and Another [2001] Q.B. 1134
Wooldridge v Sumner [1963] 2 Q.B. 43
Other Written Sources
University of Hertfordshire tort module guide
Other Sources
http://en.wikipedia.org/wiki/Wednesbury_unreasonableness
