The Damages to Bonita and Ben - Essay Example

?Introduction The relevant facts in this scenario are that Maria works for the New Horizon activity centre; that she knows the protocol regarding employees and trained staff, in that employees are never to work in isolation from trained staff; that she defied this protocol in picking up the children without a trained staff member, as her trained staff member, Katie, was sick that day; that, as the consequence of her defying the order, the children suffered damages from being trapped in the bus for 20 minutes; that the twins, Bonita and Ben, suffered mental damages, but no physical damages; and that Bonita and Ben now require therapy before they can return to the centre. Analysis First, the elements of negligence should be established. They are duty, breach, causation, damages. According to Caparo v. Dickman [1990] UKHL 2, if the harm that occurs is reasonably foreseeable, there is a degree of proximity between the tortfeasor and the victim, and if it would be just, reasonable and fair to impose liability, then the duty prong of the negligence analysis is satisfied. In this case the harm was reasonably foreseeable – Maria could foresee that something could go wrong if she defied orders, in that she might be incapacitated, which would leave the children essentially unattended. This is exactly the harm that happened, so this harm is reasonably foreseeable. Proximity is also established, in that the children were in Maria’s care. Because of this, the third prong is also satisfied, in that it would be just, reasonable and fair to impose liability. Therefore, the duty element is established. The next element of negligence is a breach of the duty. According to Bolton v. Stone [1951] A.C. 850, the injury must be foreseeable, and, if the injury is no foreseeable, there would not be a breach of duty. Also, breach of duty is established by examining whether the tortfeasor acts in the way that a reasonable person would act (Blyth v. Company Proprietors of the Birmingham Water Works (1856) 11 Ex. Ch 781). The injury was definitely foreseeable – there were icy roads that day, therefore the accident was foreseeable. Moreover, since there was only Maria on the bus, it would be foreseeable that she would be incapacitated in the event of an accident, and that the kids, who are disabled, would be traumatized by this. Maria did not act as a reasonable person, as a reasonable person would have obeyed the rules set forth by the New Horizons regarding employees acting only with trained support staff. Therefore, breach is established. Causation is the next element. The court’s typically use the “but-for” test – would the damages have occurred but-for the tortfeasor’s actions? (Barnett v. Kensington & Chelsea NHS Trust [1968] 1 All ER 1068). In this case, the actions of Maria were the cause, because but-for her choosing to drive without supervised help, the damages would not have occurred, because there would have been a trained person to help the children on the bus. Damages are next – do Bonita and Ben have compensable damages? After all, they were physically unhurt, but apparently suffered some type of emotional damage from the incident. In this case, the court would look to the case of Page v. Smith [1995] UKHL 7. In Page, the plaintiff was physically unhurt in a minor traffic accident. However, he suffered other damages, which was that he had myalgic encephalomyelitis, and this disease recurred, although it was previous in remission. The court found that Page was a primary victim, which means that the primary victim must only show that personal injury would have been a foreseeable consequence of the tortfeasor’s actions. If this is established, that the victim was unhurt would not preclude the victim from collecting from some kind of nervous shock or psychiatric injury. Further, another case that establishes that primary victims may recover for nervous shock, if they are in danger of being injured, is Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310. Therefore, even though the two children were not hurt physically, they may recover damages for their nervous shock. The basic elements of negligence thus established, the next part of the analysis will center upon the liability of the New Horizons, who would be vicariously liable if it is established that there is a master-servant relationship between Maria and them, and if it can be shown that Maria was carrying out her duties as a servant at the time of the negligence (Yewens v. Noakes (1880) 6 QBD 530). Maria was an employee of the Consortium, and she was carrying out her duties, which is driving the bus, at the time of the accident, so the master-servant relationship and vicarious liability are definitively established. However, Maria defied the rules of the New Horizons – New Horizons has a rule that employees must be accompanied by trained staff, and that every employee must sign a document outlining this. Plus, the New Horizons has disciplinary measures for the employees who defy this code of conduct. Might this be enough to defeat liability? Two English cases – Limpus v. London General Omnibus Co. (1862) 1 H&C 526, and Rose v. Plenty [1976] 1 WLR 141 – would indicate that the warning given to the employees would not be enough to defeat liability for the Consortium. In both of these cases, employees were warned about specific conduct, the employee did that conduct anyhow, and injury resulted. In Limpus, the employer warned the employee specifically not to pull in front of a rival omnibus, the employee went ahead and did it, and the employer was liable. In Rose, the employee was specifically warned not to have small children in in milk vans. The employee had a small child help him deliver milk and the child was injured. Therefore, even though the New Horizons have specifically warned employees against the very conduct that Maria engaged in, they would still be liable. Conclusion The Consortium would be liable for the damages to Bonita and Ben. The employee, Maria, was clearly negligent. She was on the job at the time of the accident. And, even though she was warned about her specific act prior to her committing the act, this would not defeat liability. The parents may bring an action for nervous shock, and, since the kids were the primary victims, as opposed to secondary victims, in that they were actually in the accident, the parents will probably be successful in their suit. Sources Used Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 Caparo v. Dickman [1990] UKHL 2 Bolton v. Stone [1951] A.C. 850 Blyth v. Company Proprietors of the Birmingham Water Works (1856) 11 Ex. Ch 781 Barnett v. Kensington & Chelsea NHS Trust [1968] 1 All ER 1068 Limpus v. London General Omnibus Co. (1862) 1 H&C 526 Rose v. Plenty [1976] 1 WLR 141 Page v. Smith [1995] UKHL 7 Yewens v. Noakes (1880) 6 QBD 530 Read More