Kerendeep Garcha
Law of Tort - Assignment 1.
Negligence is concerned with compensating people who have suffered damage as a result of the carelessness of others. However, the law does not provide a remedy for everyone who suffer in this way as access to compensation is restricted through the doctrine of duty of care. In the law of negligence in order for the claimant to succeed in his negligence action he must prove, firstly, that the defendant owed him a duty of care; secondly, the defendant breached that duty; and thirdly the claimant suffered damage as a result of the breach.
To determine whether a duty of care is owed we must examine the neighbour principle established by Lord Atkins in Donoghue v Stevenson1: "Who then, in law, is my neighbour? The answer seems to be... persons who are closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called in question2". This principal allowed courts to determine whether a type of loss was actionable or not. It gave courts a starting point for the question of whether a duty of care existed, based on the reasonable foreseeability of damage.
A more detailed test was put forward by Lord Wilberforce in Anns v Merton LBC3. This case established the two-stage test. The first stage was to determine whether the parties satisfied the requirements of the neighbour test. If the answer to this stage was yes, then the duty would exist. The second stage involved establishing whether there was any policy considerations that stated that no duty should exist, if there were no policy reasons then the duty existed.
This two-stage test was overruled and a three-stage test arose in Caparo Industries v Dickman4. It was held that claimants had to prove that damage was foreseeable, there was a sufficiently proximate relationship between the parties, and that it is just and reasonable to impose the duty.
Taking into consideration the neighbour principal Baljit, as a driver of a vehicle, owes a legal duty of care to other road users, i.e. his neighbours.
A risk of damage to Chris, Judith was foreseeable as Baljit was driving his car very fast in such poor conditions. This demonstrates that he was not taking reasonable care, and therefore was putting other road users in danger. It was stated in Donogue v Stevenson that "you must take reasonable care to avoid acts or omissions which you can foresee would be likely to injure your neighbour5".
It can be argued that a close proximate relationship is not needed as Chris, Judith were injured. The courts do not have to investigate whether a 'proximate' relationship exists when a personal injury is involved as the injury, itself, forms a relationship between the parties.
If the duty of care was imposed on Baljit it would be just and reasonable, otherwise the issue of public policy would surface.
As all three criteria's are satisfied, when concerning Chris and Judith, it can be established that Baljit did owe them a duty of care.
However, in Brain's circumstances, Baljit was not performing any positive acts, i.e. misfeasance's that would have caused further harm, either was he allowing a harm to take place. It can therefore be decided that Baljit did not owe Brian a duty of care.
In deciding whether Baljit ...
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If the duty of care was imposed on Baljit it would be just and reasonable, otherwise the issue of public policy would surface.
As all three criteria's are satisfied, when concerning Chris and Judith, it can be established that Baljit did owe them a duty of care.
However, in Brain's circumstances, Baljit was not performing any positive acts, i.e. misfeasance's that would have caused further harm, either was he allowing a harm to take place. It can therefore be decided that Baljit did not owe Brian a duty of care.
In deciding whether Baljit had fallen below the standard of care required, we must consider whether there was a breach of the duty. A Breach of duty is when the defendant has fallen below the standard of behaviour excepted by someone undertaking the activity concerned. The standard of care required is an objective test and is based upon the reasonable man and whether or not the defendants acted within the restrictions of the reasonable man. In Glasgow Corporation v Muir6 it was stated that "the reasonable man is presumed to be free from both over-apprehension and from over confidence7".
The application of the reasonable man test can be seen in a number of cases. In Nettleship v Weston8 the defendant was taking driving lessons. On her third lesson, she drove into a lamppost and the claimant, her driving instructor, was injured. The court held that she would by judged to the standard of the average competent driver and anything less would amount to negligence. In Roberts v Ramsbottom9 the defendant claimed a stroke affected his ability to drive. The court held the driver still owed a duty of care as a reasonable competent driver. In both cases it was established that the defendants fell below the standard of care required and applying this to Baljits circumstances it can be established that Baljit fell below the standard of care required by him and therefore was in breach of his duty.
Other factors that determine breach of duty are the foreseeability of harm; the likelihood of the risk happening, the extent of damage which is likely; the usefulness of the defendant's activity, practicality of precautions and finally common practice.
For foreseeability, the standard of care is based upon what the reasonable man would have foreseen in the circumstances. Taking this into consideration it can be stated that the reasonable man would be able to foresee a risk of injury to another road user when driving at such a fast speed and in such poor conditions.
It can also be stated that the likelihood of such injury's occurring is great. In Hilder v Associated Portland Cement Manufacturers Ltd10 the defendants allowed small boys to play football on their land. One of the boys kicked the ball on to the road and caused the claimant's husband to die in the accident. It was held that the defendant was negligent, as a reasonable man would have concluded that there was a risk of injury to road users and such risks were not so small. The same can be said in Baljit's situation.
As a doctor, Dr Khan, owes a duty of care to his patients and bad medical practice may be a breach of that duty. It was held that a person who claims to have a special skill, is judge, not according to the standard of the reasonable man in the streets, but according to the standards of the reasonable person in that profession. This was established in Bolam v Frien Hospital Management Committee11, where it was stated that "the test is the standard of the ordinary skilled man exercising and professing to have that special skill12".
In Wilsher v Essex Area Health Authority13 the Court rejected the argument that a junior, inexperienced doctor owes a lesser standard of than a more experienced doctor does. It was pointed out that an inexperienced doctor who was required to do a task requiring specialist skills could satisfy the standard of care required of him by seeking the help and advice of his superiors. It can therefore be determined that although, Dr Khan, was a junior doctor, he can not release himself from the standard of care required by him. The law expects Dr Khan to show the degree of competence usually expected by an ordinary member of that profession, and by incorrectly administering the injection, Dr had fallen below the level of competence required by him.
The concept of intervening cause is often encapsulated in the phrase 'nova actus interveniens'. Nous actus interveniens is the new intervening cause which breaks the chain of causation. The chain of causation may be broken by the claimant, an act of god or by a third party. Lord Wright stated that "to break the chain of causation it must be shown that there is something which I call ultroneous, something unwarrantable, a new cause...14". The law will regard any damages occurring after the intervening cause as being 'too remote' and the defendant will not be liable for this damage.
If the doctrine of nous actus interveniens is applied, Baljit will not be liable for Chris's brain damage if it can be established than the intervening act of the doctor broke the chain of causation.
In Rouse v Squires15 a defendant through his negligent driving collided with a another car. Defendant two then negligently collided with the vehicles involved in the first accident and killed the claimant. If was held that the first defendant's negligence was an operative cause and the second accident did not break the chain of causation. However, in Knightly v Jones16 the defendant's negligence caused an accident and a tunnel was blocked. A police inspector sent the claimant into the tunnel, having forgotten to close the tunnel beforehand. There was a second collision and the claimant was injured. It was held that the defendant, whose negligence caused the initial accident was not liable for the subsequent collision as the chain of causation had been broken by the police officer. Baljit can argue that Chris's brain damage was due to the carelessness of the doctor as he administered the injection incorrectly and by injecting Chris, the doctor had intervened in Baljit's careless act and therefore broke the chain of causation.
Judith's pre-existing injury has an important significance when establishing whether her death was a cause of the actual breach. The main test used in determining causation is the 'but for' test. In Cork v Kirby MacLean 17 Lord Denning said that "...if the damage would not have happened but for a particular fault, then that fault is the cause of the damage; if it would happen just the same, fault or no fault, the fault is not the cause of the damage18". The 'but for' test is straightforward, however it becomes difficult when there is a pre- existing condition which causes the damage. In such cases the defendant's liability will lessen. In Cutler v Vauxhall Motors19 the claimant suffered a graze due to the negligence of the defendant. It was discovered that the claimant had a pre-accident condition of varicosity. An ulcer had appeared on the graze and it was operated on in order to cure the condition. The claimant sued for damages. However, it was held that the claimant could not claim for the loss as the condition was not connected with the negligence of the defendant and it would have required treatment in the future. The defendant's negligence was therefore not a cause of the claimant's loss. Baljit can argue that as Judith, for a number of years, had already been receiving treatment for a heart defect, her heart attack was not caused by his negligence. Her hearts condition was already weak and she would have suffered such a loss sometime in the future.
A defence that Baljit may rely upon is 'Contributory Negligence'. This is where a claimant suffers damage partly through his/her own negligence as well as the defendant's negligence. A result of this may reduce the amount of damages recovered from the defendant. For a successful defence of contributory negligence a defendant must prove there was fault of the part of the claimant and it was the claimant's negligence that was a cause of the damage. In Froom v Butcher20 the claimant was injured when his car collided with the defendant's car. Although the accident was caused by the defendant's negligence, the claimant would not have suffered head and chest injuries had he been wearing a seat belt. Baljit can use this defence if Brian tried to argue that he lost his leg as a result of Baljit's negligence. Baljit can then argue that Brian would not have suffered such injuries had he been wearing a seat belt.
Statute's have imposed time limits within which an action in tort must be brought against a derfendant. A claimant, must therefore commence his/her proceedings with the period stated. S11(4) of the Limitation Act 1980 states that an personal injury action must be brought within three years from the date it occurred or from the date of knowledge of the injury.
(WORD COUNT: 1992).
TABLE OF CASES
Anns v Merton LBC [1978] AC 728
Bolam v Frien Hospital Management Committee [1957] 1 WLR 582
Caparo v Industries v Dickman [1990] 1 All ER 568 HL
Cork v Kirby MacLeann Ltd [1952] 2 All ER 402
Cutler v Vauxhall [1971] 1 QB 418
Donoghue v Stevenson [1932] AC 562
Froom v Butcher [1975] 3 All ER 520
Glasgow Corporation v Muir [1943] 2 AC 448
Hilder v Associated Portland Cement Manufacturers Ltd [1961] 1 WLR 1431
Knightly v Jones [1982} 1 WLR 349
Nettleship v Weston [1971] 2 QB 691
Roberts v Ramsbottom [1980] 1 All ER 7
Rouse v Squires [1973] QB 889
Wilsher v Essex Area Health Authority [1987] 2 WLR 425
BIBLOGRAPHY
Templeman & Pitchfork, Obligations: The Law of Tort (Old Bailey Press 1997),
Micheal A. Jones, Textbook on Torts, 5th Ed (Blackstone Press Ltd 1996)
Cooke, Law of Tort, 4th Ed (FT Pitman Publishing 1999),
Elliott and Quinn, Tort Law, 3rd Ed (Longman 2001),
Cracknell's Companion, Torts: Cases & Statutes, (Old Bailey Press)
[1932] AC 562
2 Templeman & Pitchfork, Obligations: The Law of Tort (Old Bailey Press 1997), Pg. 45
3 [1978] AC 728
4 [1990] 1 All ER 568 HL
5 Cooke, Law of Tort, 4th Ed (FT Pitman Publishing 1999), Pg.29
6 [1943] 2 AC 448
7 Templeman & Pitchfork, Obligations: The Law of Tort (Old Bailey Press 1997), Pg. 121
8 [1971] 2 QB 691
9 [1980] 1 All ER 7
0 [1961] 1 WLR 1434
1 [1957] 1 WLR 582
2 Micheal A. Jones, Textbook on Torts, 5th Ed (Blackstone Press Ltd 1996) Pg. 155
3 [1987] 2 WLR 425
4 Templeman & Pitchfork, Obligations: The Law of Tort (Old Bailey Press 1997), Pg. 155
5 [1973] QB 889
6 [1982] 1 WLR 349
7 [1952] 2 All ER 402
8 Templeman & Pitchfork, Obligations: The Law of Tort (Old Bailey Press 1997), Pg. 137
9 [1971] 1 QB 418
20 [1975] 3 All ER 520
