Law of Torts: An Action in Negligence - Essay Example

Law of Torts: An Action in Negligence The tort of negligence has been described thus: “Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.” per Alderson B, Blyth v Birmingham Waterworks Co (1856) Establishing whether there is an action in negligence requires firstly that a duty be owed by the defendant to the claimant, secondly that there has been a breach of that duty and finally that the alleged harm caused was a result of that breach of duty by the defendant: Caparo Industries v Dickman (1990) In order to prove breach the claimant must produce evidence which infers a lack of reasonable care on the part of the defendant. However, if no such evidence can be found, the necessary inference may be raised by using the maxim res ipsa loquitur, ie the thing speaks for itself. See: Scott v London & St Katherine Dock Co (1865) Mr Andy and Suzie One would very much like to argue that this is a case of the claimant being the author of his own misfortune (Philcox v Civil Aviation Authority, The Times, 8 June 1995) and therefore no duty was owed in the first place. Unfortunately, on the facts it would appear that a duty was owed (driver and passenger), that there may have been a breach of the duty and if so, that Mr Andy’s broken nose was a consequence of that breach. However, there are two points which may be argued in Suzie’s favour. Firstly she had been driving with the utmost care as she knew that they were near an accident black spot. The standard of care to be expected from a leaner-driver is the same as that required by a qualified driver: Nettleship v Weston [1971] 3 All ER 581. Secondly Mr Andy chose to break the law by not wearing his seat belt. The first point goes toward foreseeability and the second to the remedy of damages. Suzie might be able to successfully argue that she was not in breach of her duty as one could not foresee that Mr Andy would be injured when she did an emergency stop. However, this is a weak argument given that she knew Mr Andy was not wearing his seat belt and therefore the risk of injury to her passenger was increased. Can Suzie rely on the argument that she was avoiding a greater evil by performing an emergency stop to avoid harming the child? Yes, to a certain extent. It will not prevent Mr Andy successfully suing her. Yet it may go towards reducing the amount of compensation he would be awarded as Suzie may be able to show that if Mr Andy was wearing his seat belt he would have been able to mitigate the damage to his nose. It is submitted that a stronger argument would be for Suzie to argue that the damage to Mr Andy’s nose did not arise from any negligence on her part, but solely as a result of a criminal action on his part. Whilst there is no direct authority on this argument, the following matter may suggest the reasoning of the Court in such cases: Smith v Cribben [1994] PIQR 218, CA A driver D tried to overtake X on a dual carriageway, but the dual carriageway ended before D had completed the manoeuvre and D collided with two vehicles coming the other way, killing P. P's family sued for compensation and D joined X as a third party, bringing a further claim against him for her own injuries. Otton J found X 25% liable for the accident because he had not slowed to allow D to complete her manoeuvre safely, but the Court of Appeal allowed X's appeal: his duty was to drive normally at a proper speed (about 65 mph, on the facts), not to extricate D from the danger she herself had created. If Suzie does not have comprehensive insurance she will have to fund the ensuing action herself. Even if she is found in breach of her duty, it is unlikely that Mr Andy will receive full compensation due to his contributory negligence in failing to obey the law as well as to protect himself by wearing his seat-belt. Sam and the Garage Owner It is submitted that the harm which came to Sam is too remote from the original sale of the petrol. The Garage Owner could not objectively have foreseen an explosion caused by something in a pile of rubbish when he sold Sam the petrol. Novus causus interveniens - - a new cause has intervened. Any other conclusion would open the flood gates of litigation. Further it can not be fair, just and reasonable to hold a Garage Owner as having a duty to everyone he sells petrol to in respect of what they then go on to do with it. Had the harm to Sam been caused by a defect in the petrol itself, then one could see that there would be a duty and that it had been breached. On the facts as related here, we submit that Sam has no cause of action against the Garage Owner. Sam might have a better case under Occupier’s liability than negligence since trespassers are owed a common duty of care by the occupiers of premises, now by virtue of the Occupiers' Liability Act 1984. David’s estate, Suzie, Phil and Sam Clearly there is no cause of action between David’s estate and Suzie, as a defendant has no general duty to prevent injury or other harm being caused to the claimant by a third party, no matter how foreseeable such harm may be, unless either there is a special "protective" relationship between the defendant and the claimant, or there is a special "control" relationship between the defendant and the third party If walking down the street I see a blind person about to cross the road in front of a vehicle, said Saville LJ obiter in Marc Rich v Bishop Rock [1994] 3 All ER 692, it is foreseeable that he will be injured, but I am under no legal duty to take care to save him from danger. But if I am in charge of a child in the street and the child starts to run in front of the traffic, I am under a legal duty to save the child from danger, and indeed other road users from the danger the child may create. With regard to Phil there may be a cause of action if David’s estate can establish that a duty of care was owed and that his death was a direct result of a breach of that duty by Phil. Under certain circumstances, where the activity is one of social importance, it may be justifiable to take even a substantial risk. Here the courts have tended to distinguish errors of judgement from acts or omissions which are clearly negligent ie falling below the standard one would expect from a competent driver. For example in Griffin v Mersey Regional Ambulance [1998] PIQR P34, CA a driver C crossing a junction with the green light collided with an ambulance crossing on red. The Court of Appeal upheld the judge's finding that the ambulance driver had been negligent in crossing without checking that the way was clear, but that C himself should have heard and seen the ambulance and had been 60 per cent contributory negligent. However we must balance this against the court’s handling of motor accidents in general where they have clearly moved away from the ‘no liability without fault’ model to a ‘where shall the risk fall’ approach. In Webb v Darbon [2000 unreported] a 12-year-old boy ran from behind a van into the path of D's car, and suffered serious head injuries. Although D was driving within the 30 mph speed limit, his insurers accepted that he was liable for C's injuries and paid damages agreed at £3½ million. It is submitted that on the facts the Courts will be more likely to follow Webb as this case takes into account that boys will be boys, and one cannot expect David in his panic to assist his brother to be fully cognizant of the risks he was taking when crossing the road. It might be queried whether there is any liability under the head of negligence for Sam in David’s death. From a legal viewpoint the answer is no for two obvious reasons Firstly, as stated earlier a defendant is not responsible for the actions of a third party no matter how forseeable. And further the cause of David’s death is too remote for Sam to be held responsible for breach of his duty. No reasonable man would think it was foreseeable that David would be run over as a consequence of Sam’s injury. On the other hand, had David merely suffered nervous shock from seeing Sam’s injuries then Sam might well be liable in that instance. Read More