Law in Practice: Law in Tort - Essay Example

?Introduction In the case presented, Jackie is in an accident which injures both Heather and John. Since the fact pattern presents a ic negligence case, the case must be analysed by using the elements of negligence with regards to Jackie and Heather and John. Jackie was clearly negligent. However, it does not necessarily mean that she would be liable for all the damages done to Heather and John, as both Heather and John can be said to be at least partially at fault. Moreover, John had a pre-existing condition which was made worse by Heather’s actions. This would ostensibly come under the aegis of the “eggshell skull rule,” which will be explained below. Another issue is whether Heather, being a 10 year old girl, can be held contributorily negligent. This paper will analyse all of these issues. Negligence First of all, Jackie’s actions must be analysed for negligence. The basic elements of negligence are duty, breach, causation and damages, each of which must be explained. First of all, there must be established that there is a duty of care towards Heather and John. Whereas, previously, in English law, there must be some kind of privity between the tortfeasor and the victim, in that the victim and the tortfeasor must have had some kind of prior relationship, the landmark case of Donoghue v. Stevenson [1932] AC 532 altered this. In Donoghue v. Stevenson, the plaintiff, Donoghue, became ill after drinking ginger beer which had a slug in it. The justice in Donoghue proclaimed that individuals owed a duty to anybody who might be affected by their actions. Another case, Caparo v. Dickman [1990] UKHL 2 states that the duty of care can be explained threefold - that the harm was reasonably foreseeable, that there was a relationship of proximity between the tortfeasor and the victim, and that it would be fair, reasonable and just to impose liability. So, as in the case of Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] UKPC 1, the defendants were not held negligent for a fire which broke out on the water, even though they knew that there was oil slipping below the dock onto the water and the defendants could not reasonably foresee that water would ignite. Moreover, proximity is also an issue, because the harm caused must be proximate to the tortfeasor - Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928) is a case where there was not proximate cause between negligence on one end and an unforseeable victim on the other. In that case, the defendant was helping a woman onto a train and this woman had fireworks which exploded. This caused scales to fall on a distant bystander, and the court decided that the distant bystander’s injuries were not proximately caused by the defendant’s actions. In this case, Jackie would owe a duty to both Heather and John. As noted by Donoghue, there does not have to be privity between the parties for there to be a duty. It is foreseeable that a distracted driver, especially a brand-new, distracted driver, would hit bystanders. Moreover, there was nothing that would break the chain of causation – Heather and John’s injuries were proximately caused by Heather, and there was nothing which might break the chain of causation, like a supervening or intervening event. Therefore, there was a duty towards both Heather and John. The next element of negligence is a breach of the duty. According to Bolton v. Stone [1951] A.C. 850, there cannot be a breach of duty if the injury was not foreseeable. In the case at bar, as stated above, Heather and John were foreseeable and it was foreseeable that Jackie’s actions might cause their injuries. Therefore, there was a breach of Jackie’s duties to both of the plaintiffs. That said, there is the possibility that Jackie did not breach a duty of care to John – she narrowly missed him because she was swerving to avoid hitting Heather, which is a reasonable thing to do. It can be argued, therefore, that she was not negligent with respect to John, but was negligent with respect to Heather, as she did not notice Heather as she dashed into the street. Causation is the next element, and, on this element, there is some doubt as to whether Jackie was the cause of John’s injuries, but no doubt as to whether she is the cause of Heather’s injuries. She was factually the cause of Heather’s injuries – her negligence caused her to hit Heather and seriously injure her. Less clear is whether Jackie is factually or legally the cause of John’s injuries. The fact pattern states that Jackie did not actually hit John – rather, it specifically says that Jackie narrowly missed John. Therefore, there was not a physical injury of John. This is not to say that John cannot recover and that Jackie is not the cause of any type of injury to John. There is the possibility that John may recover from some type of nervous shock claim. In fact, there happens to be a case which is exactly on point for this type of situation. The case is Page v. Smith [1995] UKHL 7. In this case, the plaintiff, Mr. Page, was involved in a traffic accident in which he was physically unhurt. Although Mr. Page was not hurt, he suffered a recurrence of his myalgic encephalomyelitis, which was previously in remission. The Page court found that Mr. Page was a primary victim, as opposed to secondary victim, which would a case where an accident is merely witnessed by somebody who was not him or herself in danger. Such is the case of Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310, which a case where 96 Liverpool fans died in a football disaster, but these plaintiffs, themselves, were not in danger. Secondary victims must have a higher hurdle to cross than do primary victims, but, if an individual is a primary victim, it means that he or she actually was in danger, then the defendant may be liable. Primary victims, according to Lord Lloyd of Berwick, need not show that nervous shock or psychiatric injury was a foreseeable consequence of the action, only that personal injury is a foreseeable consequence. The court partially came to this conclusion by citing the eggshell skull rule, which means that a tortfeasor takes a victim as he finds him. This eggshell skull rule is illustrated by the case of Smith v Leech Brain & Co [1962] 2 QB 405, in which the plaintiff was burned on the lip by molten metal, which aggravated pre-cancerous cells and turned these pre-cancerous cells into active cancer, from which the plaintiff died three years after this accident, and the defendant paid for this damage. In the case at bar, the situation is virtually identical to the situation in Alcock. Just as in Alcock, John in this situation was involved in a minor traffic accident and was physically unhurt. Just as in Alcock, John had a pre-existing condition of M.E.. Just as in Alcock, John was in remission at the time of the accident. Just as in Alcock, John’s condition was no longer in remission after the accident, and the ME recurred. In Alcock, the defendant’s actions were held to be the proximate cause of the plaintiff’s M.E. recurrence, citing the eggshell skull rule, which means that the defendant in that case took the plaintiff as he found him, and that his pre-existing sensitivities would not preclude finding the defendant negligent and liable for the M.E. recurrence. Therefore, based upon Alcock, at least initially, Jackie would be liable for John’s recurrence of his M.E. Contributory Negligence On the facts, Jackie would be liable in negligence to both Heather and John. Heather, because she was physically injured, and the physical injury was a direct cause of Jackie’s negligent actions. John, because the case of Alcock can be used as precedent that John’s recurrence of M.E. can be directly attributable to Jackie, even though there was not a physical injury. That said, it does not necessarily mean that Jackie would be completely liable for both injuries. The doctrine of contributory negligence was first used in 1809 in the case of Butterfield v. Forrester, 11 East. 60, 103 Eng. Rep. 926 (K.B. 1809). In that case, a pole was put up negligently, and a rider did not see the pole and was injured when his horse and he struck the pole and he fell off his horse. Since a reasonable rider, using ordinary care, would have seen the pole, the rider was found at fault and was denied damages. While contributory negligence historically would deny damages to an individual who is at fault for his or her own injuries, this rule has since been modified by the Law Reform (Contributory Negligence) Act 1945. This act states that contributory negligence on the part of an individual is not going to defeat that person’s claim, as it did previously. Rather, the claim and the award would be reduced by the amount that the person is at fault for his or her own injuries. Therefore, if, say, John is awarded the amount of ?100,000, and the judge finds that he is 70% at fault, then his total award would be only ?30,000, because his total award would be reduced by 70%, which is the amount that he is at fault. In this case, there was evidently fault on the part of both John and Heather, although Heather, as a child, might have a different analysis. John was contributorily negligent because he was reading a newspaper as he crossed a road. While the case of Butterfield is no longer valid precedent, simply because contributory negligence no longer defeats any and all negligence claims, it is precedent for how a court might judge if somebody is, in fact, contributorily negligent. And that was that the victim in the Butterfield case needed to use reasonable care when riding his horse. The same can be true for walking across a street – one needs to use reasonable care in walking across a street. This would include not crossing against a light, not dashing out in front of speeding cars, and not reading a newspaper as you cross the street. If John is reading a newspaper while he is crossing the street, then he is not looking out for cars, and a pedestrian, using reasonable care, would, at the very minimum, look out for cars. Moreover, the fact pattern does not specify, but it is entirely possible that John was crossing against a light, which would be a further dereliction of duty for him to use reasonable care. Of course, John’s argument to refute this would be that, even if he were using reasonable care – looking before crossing, etc., he still might have been hit because Jackie’s car was out of control. Nevertheless, it would seem that John might be 50% at fault, so in that case, Jackie’s liability would be reduced by 50%, or whatever the judge decides is John’s percentage of culpability. With Heather - who is also contributorily negligent, as she not only dashed out in front of the car out of nowhere, but she apparently was responsible for the accident in the first place, as it was her ball that she was running after when she ran out into the street – the question is not that she is contributorily negligent (she clearly is), but, rather, as a small child, she can be held to be guilty of contributory negligence. This is a bit of a grey area in the law. According to Gough v. Thorns [1966] 1 WLR 1387, very young children cannot be contributorily negligent, but older children may be. The older child must be judged by what is reasonable for his or her age, and if the child is at an age where the child should be taking precautions to safeguard his or her own safety. The justice in Gough recognizes that children do not have the same experience of sense of an adult, therefore what is reasonable for children would not be the same as what is reasonable for adults. Therefore, the question is whether it is reasonable for a 10 year old to dash out in front of a car? Would most 10 year olds have the good sense not to do that? That is question for the judge, but, intuitively, it seems that most 10 year olds would do the same as Heather did. Also, if Heather is deemed to not be at an age where she is responsible for her own safety, then she cannot be contributorily negligent. Conclusion There is not a question that Jackie was negligent – she was distracted while she drove, and did not see Heather. She did not react quickly to Heather and she narrowly missed hitting John (although whether she was negligent as to John is a an open question). That said, John was clearly contributorily negligent and Heather probably is, as well. Therefore, any damages that either plaintiff suffered would be reduced by the percentage that they were at fault. References Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 Bolton v. Stone [1951] A.C. 850 Butterfield v. Forrester, 11 East. 60, 103 Eng. Rep. 926 (K.B. 1809) Caparo v. Dickman [1990] UKHL 2 Donoghue v. Stevenson [1932] AC 532 Gough v. Thorns [1966] 1 WLR 1387 Law Reform (Contributory Negligence) Act 1945 Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd [1961] UKPC 1 Page v. Smith [1995] UKHL 7 Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928) Smith v Leech Brain & Co [1962] 2 QB 405 Read More