Negligence Law Issues - Essay Example

Explain what a claimant needs to prove to establish liability in negligence, using case law to illustrate your answer (40 The basis for a negligence claim is that there must be a duty which was breached, and the breach of the duty causes damages – duty, breach, causation, damages.1 The plaintiff must prove each of these elements to prevail on a negligence claim. Therefore, each of these elements must be discussed.  The element of a negligence claim is duty – that is, that the person, the tortfeasor, must have some sort of duty towards the victim of the tort. 2 English law traditionally stated that there must be some sort of privity between the parties for there to be a duty not to harm, which means that the two parties must have had some sort of relationship with one another.3  This changed with the case of Donoghue v. Stevenson.4 This is the seminal case which changed the nature of duty. In this case, the plaintiff found a slug in her ginger beer and sued the proprietor of the store who sold this. The justice stated that duty would be broadly defined, in that anybody who might be harmed by the tortfeasor are people to whom the tortfeasor owes a duty. Therefore, privity is not required. Capraro v. Dickman5 expanded on the Donoghue analysis, stating that duty of care is required when there is foreseeable harm, proximity between the parties and that holding the tortfeasor liable would be reasonable and just. Breach is the next element that needs to be proved. Basically, negligence turns on whether or not the duty of care is breached. According to Bolton v. Stone6 states that the injury must be foreseeable for there to be a breach. In that case, the plaintiff was hit by a cricket ball. However, it was not foreseeable that a cricket ball would fly out of the arena and hit a remote person, therefore, the injury was not foreseeable and the defendants were held not be negligent and did not breach a duty of care. Overseas Tankship v. Morts Dock and Engineering Co Ltd7 also illustrates this point. In Overseas, the defendants were allowing oil to spill out on water, and they were also sending sparks into the oil on the water. The oil ignited. However, the Overseas court held that the it was not foreseeable for water to ignite, therefore the defendants were not held liable. Causation is the next element. There is direct causation, which means that the defendant directly caused injury, and proximate causation. In proximate causation, the tortfeasor may not have directly caused the injury, but the injury was related to the tortfeasor's actions. defendant’s actions. Courts will classically use the “but for” test for causation, which means that, but for the defendant's negligence, the injury would not have occurred. Several cases may illustrate how this is applied, or not applied, as the case may be. Courts will not apply hold a defendant negligent if the injury would have occurred anyway, even if there was no negligence. For instance, in the case of South Australia Asset Management Corp. v. York Montague Ltd., a classic example of this type of injury was stated – a mountaineer is about to go on a difficult climb, but is worried about his knee. His doctor negligently examines the mountain climber and tells him he is fit to climb. The climber goes on his climb and is injured. But for the negligent medical examination the climber would not have been on the mountain climb. However, the actual injury has nothing to do with the knee – perhaps the climber is struck by a falling rock on the climb. In this situation, the doctor isn't liable for negligence, even though the climber would never have been injured but for the doctor's negligence. Another example of injury or death which might be held to be result of negligence, but was deemed not to be the proximate cause of the death is the case of Barnett v Chelsea & Kensington Hospital Management Committee. 8 In this case, a man went to an emergency room but was told to go home and call his doctor. He died of arsenic poisoning. It was held, however, that the man would have died anyways, even if he was seen by the doctor, because arsenic poisoning is so unusual that the doctor probably would not have been able to detect it in time to save the man. Furthermore, there was little to no chance that the hospital would have been able to administer the antidote to him on time. Still another example of this is the case of The Empire Jamaica.9 In this case, a ship was sent out to sea without properly licensed officers. The ship got into a collision because the pilot fell asleep. The issue is that the ship never should have been sent to sea, because there was not properly licensed officers available. However, the lack of properly licensed officers was not the cause of the ship's collision, therefore there was not negligence on the part of the ship's owners. The final element is damages. Generally, there must be some sort of quantifiable physical or monetary damages which is a result of defendant's negligence. The possible exception to this is that the plaintiff suffers some sort of nervous shock which might be the result of being in proximity to danger. In the case of Alcock v Chief Constable of South Yorkshire Police, 10 bystanders suffered nervous shock because they witnessed football fans being trampled to death. However, since these plaintiffs were not primary victims – they were not in danger themselves – there is a high threshold to cross for this. Another example is Page v. Smith,11 which is a case where the plaintiff actually was in danger of being hit by a car, although the car did not actually hit him. However, the near miss aggravated a prior condition, so this was compensable. Question 2 A) Fred – In the facts, Fred is a postman who is cycling along the road, swerves to avoid Jamie, and falls and breaks his arm. The chain of events which led to this are that Maya owns a nursery, and Ania is her employee, who failed to properly watch the children in her care, which resulted in Jamie, one of the children, running away and into the path of Fred. Therefore, in addition to analysing the possible negligence of Maya, one must also look at how Ania might also be held liable through the doctrine of vicarious liability, or respondeat superior. Verses Ania First of all, the question is whether Ania had a duty to Fred. Under Donoghue analysis, Ania did have a duty to Fred, because Fred was harmed by her actions, and a tortfeasor has a duty to anybody who might be harmed by one's actions. Moreover, in looking at the Capraro analysis, the results would be the same – first of all, the question is whether the harm was foreseeable. It is certainly foreseeable that a child might get out of the gate if the child is left unattended. It is also foreseeable that said child might cause an accident once she is out of the gate. Therefore, the harm was foreseeable. The next prong is the prong regarding proximity between the parties – that is to say, that the victim of the tort was not remote from the tortfeasor. If this were the case, as in the case of Palsgraf v. Long Island Railroad Co.12 which was a case where the victim was too far removed from the tortfeasor (a man helped a woman onto a train, the woman had fireworks on her person, they exploded which caused scales to fall on a distant bystander, who sued), then there would not be liability. Unfortunately, there was not enough distance between Ania's actions of not watching her children, which caused Jamie to run into the street, which directly caused the accident. Therefore, the second prong of the Capraro analysis is satisfied as well. The third is whether it would be fair and just to hold her responsible, and there is nothing that would preclude a verdict against Ania on a fair and just analysis. The fact is, Ania left small children unattended, so it would be just to hold her responsible. Breach is the next question, and this turns on foreseeability of the injury. Again, as with the analysis above, it is foreseeable that somebody might be injured if a child leaves the garden, and it is foreseeable that a child might leave the garden, therefore there is a breach of the duty of care on Ania's part. Causation is the next element, and Ania's actions are the but-for cause of Fred's injuries – but-for Ania's action of not watching Jamie, Jamie would not have gotten out of the gate and Jamie would not be in the position to cause an accident. Fred experienced damages, because he broke his arm, so this element is satisfied as well. Verses Maya Maya's liability for what occurred would turn on whether or not she can be held somehow vicariously liable for Ania's actions. Maya is Ania's employer, so respondeat superior is the proper method to analyse her possible liablity in this situation.13 There is not a doubt that Ania is an employee of Maya- the facts state not only that Maya owns the nursery, but that Ania is her assistant nursery nurse. Therefore, the first element of a respondeat superior analysis is satisfied.14 Therefore, the next question is whether or not the negligent action happened during the scope of Ania's employment. The test for this is if the wrongful act was authorised, or that the act was a wrongful or unauthorised mode of an act which was authorised.15 In this case, there was not a doubt that the negligence occurred during an authorised act, which was that Ania was to watch the children, and the negligence occurred during the course of Ania watching these children. Therefore, at first blush, it would seem that Maya would be held responsible for Ania's actions, as it occurred during the scope of Ania's employment. The only other question is whether Maya's admonitions against Ania leaving the children alone would suffice to defeat liability. The case of Limpus v. London General Omnibus Company16 would indicate that Maya's warnings would not defeat a claim of negligence. In that case, a driver pulled in front of a rival omnibus to obstruct it. The employer had expressly warned the driver not to do this, and the driver did it anyway. The employer was still held to be vicariously liable for the collision that resulted from this act. Rose v Plenty17 involved similar facts. In Rose v. Plenty, Mr. Plenty was a milkman who had a small child help him with his deliveries, despite the fact that having small children in the milk vans was strictly prohibited by the employer. The employer was still held liable. Therefore, even though Maya told Ania not to leave the children unattended, Maya would still be liable, because Ania was in the scope of her employment when the negligence occurred. Doreen The facts are that Doreen is Jamie's mother, and Doreen saw the entire accident as it was about to happen. Therefore, Doreen suffered psychological injury and has not been able to work. In this case, Doreen would be considered to be a secondary victim, as opposed to a primary victim – Doreen herself was never in any danger, and she only witnessed her daughter's accident. Therefore, the facts will be analysed under the seminal case of Alcock v. Chief Constable of South Yorkshire Police.18 The facts were presented briefly earlier, but this case concerned lawsuits which were brought by fans after the Hillsborough disaster of 1989, which involved 96 Liverpool fans who died in a massive crush during the FA Cup Semi Final at Hillsborough Stadium in Sheffield. The accident there occurred because the police had allowed too many fans to crowd into a certain part of the stadium. Many of the claimants had seen their friends and relatives crushed, so psychiatric harm or nervous shock resulted. As in the case at bar, the victims in Alcock were secondary – their actual safety was not threatened. That is the case in this fact pattern as well – Jamie's mother did not have her safety threatened, so she, too, would be considered to be a secondary victim. Therefore, the elements of a cause of action, as established by Alcock, would be relevant here as well. The first element is that the claimant must be an eyewitness to a shocking event, and must be in close proximity to this event. This element would be satisfied here, as Doreen saw the accident in person. The second element is that the shock must be sudden – this is also established, because the shock was sudden (this element would preclude, say, a cause of action for depression which is caused by living with a relative who was debilitated by an accident). The third element is that the claimant must have a “sufficiently proximate”19 relationship to the injured person, such as parents and children. Again, this element is satisfied, assuming that nearly hitting Jamie would qualify as an injury (in the case of Page v. Smith [1995] UKHL 7, listed above, nearly hitting the plaintiff was considered to be an injury). These preceding questions of fact being disposed of, the next element is a little trickier. This element is that it would be reasonably foreseeable for a person of “normal fortitude” to suffer psychiatric damage.20 This is a question of fact for the judge and jury to decide, but an analysis must be undertaken here as well. First of all, Jamie was not hurt. Fred was hurt. Jamie was almost hurt, but this is clearly different than if Jamie actually was hurt. Of course, it would be a different story if it were Jamie who broke her arm, but this is not the case. The question is whether a person of “normal fortitude” suffer such a psychiatric blow upon seeing one's child almost hit that the person would suffer a breakdown? The answer to this is probably not. Most people of “normal fortitude” would be momentarily panicked, then relieved, when seeing one's child almost it by a bicycle, then avoiding an accident. Most people would not suffer a breakdown because of this. The only question is whether Doreen had some kind of pre-existing psychiatric injury which was worsened by this incident. The “eggshell skull rule,” which was demonstrated in the Page case would perhaps apply here. However, Page still involved a primary victim – the plaintiff in Page was in actual danger of a collision, and this was what caused a flareup of his illness. There is not an on-point case where a secondary victim, who was related not to the injured party, but, rather, to the nearly injured party, suffered a breakdown to the extent where that person is unable to work at all. Therefore, even if Doreen had a pre-existing condition which was aggravated, it is not clear that she would be able to recover because of this. In fact, it is doubtful that Doreen would be able to recover – a reasonable person would not be so incapacitated upon seeing a near-miss, and there is not precedent to apply the eggshell skull rule to secondary victims. Conclusion Fred would be able to collect against both Maya and Ania. Both were negligent – Ania was negligent in that she left her children unattended, and this negligent act was the direct cause of Fred's injuries. Maya is negligent because of respondeat superior – Ania was carrying out her employment duties, therefore she is liable for Ania's injuries. Doreen would not be able to collect for her alleged injuries. She was a secondary victim, and her daughter was not injured, therefore it is not reasonable that she would be so upset that she could not work for months after the incident. 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