To establish proximity there must have been a sufficient relationship between the alleged wrongdoer and the injured person such that the former out to have reasonably had the later in contemplation as being so affected by that conduct, if done carelessly. Although the PEB may not have specifically applied its ‘mind’ to Angie and Bridget, as their examiners, a ‘sufficient relationship’ appears to be found.
The discussion of what is fair, just and reasonable involves the exercise of judicial pragmatism. It considers matters such as the relative risk of exposure of the parties and the extent to which they had the opportunity to manage their respective risk exposure by contractual mechanisms or whether the relationship was governed by well-established legal principles that should not be disrupted by the imposition of a duty. The PEB could easily have taken more care o determine the grade of their markers. The only real policy decision to be considered is whether the establishment of a duty situation would raise the spectre of a large number of, possibly unwarranted, claims. As the number is limited to students examined under the PEB, this would not open the ‘floodgates’ to an unspecified number.
The standard of care set by law, in order to determine whether a breach has occurred, is normally that of a reasonable and prudent man. The degree of care to be expected depends on a consideration of what a reasonable man, careful for the safety of his neighbour, would do. This requires consideration of the balance between the degree of the likelihood that harm will occur, and the cost and practicability of measures needed to avoid it, the seriousness of the consequences, the end to be achieved, including the importance and social utility of the activity in question.
Where D exercises a particular calling, he must exercise such care and skill as accords with the standards of a reasonably competent person in the same position. The PEB markers were supposed to be Grade 1 and so the standard relates to the position held and the expertise claimed by such a marker. In Nettleship v Weston, it was held that lack of skill or experience is no defence in a claim of negligence. ‘A man need not possess the highest expert skill…It is well established law that it is sufficient if he exercises the skill of an ordinary competent man exercising that art’.
It is for the plaintiff to prove D’s breach on the balance of probabilities but if no explanation can be given by D then the doctrine of res ipsa loquitur may be applied, allowing the facts to ‘speak for themselves’.
In order to succeed in a claim in negligence, the claimant must establish on the balance of probabilities that the damage was caused in fact and in law by the wrongful act. A preliminary test in deciding whether D’s breach has caused the plaintiffs damage is the ‘but-for’ test. In other words would the claimant not have suffered the damage ‘but-for’ the event. In cases where a duty is owed t avoid the risk of an occurrence, the but-for test may be modified to a test based on whether D’s wrong has materially increased the risk in respect of which the duty was owed.
Causation in law has no such conclusive principle although notions of proximity directness or dominance are sometimes used. It is arguable, however, that there is no causation in law where there is: voluntary and deliberate conduct by a third party, which was not foreseeable or intended by D, unless D was under a duty to prevent such a voluntary third party intervention; or where there was an abnormal conjunction of events at the same time or after the wrongful act not foreseen or intended.
It is a requirement of English law that the plaintiff should have suffered a legally recognisable psychiatric illness. If it is found that Angie and Bridget are suffering from some form of clinical depression then provided a reasonable man of ‘ordinary phlegm’ would have suffered in the same way, they would be recognised as persons having standing to sue.
Regarding the death of Bridget’s mother, the court may be hard pushed to find that it was a reasonably foreseeable consequence of wrongly marking a student. This would probably mean that Bridget’s father as representative of her estate may not sue on her behalf or receive bereavement damages and therefore may not make a claim with respect to his own mental state and loss of earnings because of her death. This is because the damage would be considered too remote. Where the person suffering psychiatric harm is a secondary victim, the foreseeability test imposes additional restrictions on liability. In law, it is only deemed foreseeable that persons will suffer harm if they have a relationship involving close ties of affection with the person that has suffered the injury. The existence of such a relationship is a question of fact although certain categories of relationship may be presumed e.g. between husband and wife or parent and child. This therefore could apply in this case.
The test of remoteness is that of reasonable foreseeability. This means that the tortfeasor is liable only for damage, which was intended by him, or which, although not intended, was of a kind, although not necessarily of an extent, that was the natural and probable consequence of his wrongful act.
When quantifying damages, consideration also has to be given general principles of causation and by the rule that D is liable for losses, which are unrelated to the kind of harm in respect of which the duty of care was owed. According to Lord Scarman, ‘the principle of the law is that compensation should as nearly as possible put the party who has suffered in the same position as he would have been in if he had not sustained the wrong’. Compensatory damages focus on the claimant’s loss rather than D’s gain and would be the type offered to Angie and Bridget and possibly Bridget’s father.
If the parties are not for any reason not able to bring an action against the PEB, they may find they can sue in contract or perhaps gain compensation by an existing route not via the courts. This was advised in Thorne v University of London [1966] where it was stated that a similar issue, which was brought before the courts was not justiciable as there was an existing appeal procedure to deal with the claim.
Bibliography
AEBERLI, P, The Law of Torts
LUNNEY, M, OLIPHANT, K, Tort Law Text and Materials, 2003, Oxford, OUP
MURPHY, J, Street on Torts, 2003, London, LexisNexis
OUGHTON, D, LOWRY, J, Law of Torts, 2003, London, Blackstone Press Ltd
[1990] 1 All ER 568. Based in part on the decision given by Brennan J in the High Court of Australia in Sutherland Shire Council v Heyman (1985) 60 ALR 1
Alderson, B in Blyth v Birmingham Waterworks Co (1856)
McNair, J in Bolam v Friern Hospital Management Committee (1957)
The test has no application where there are several successive causes of an injury
Overseas Tankship (No 2) (1967)