The Law of Tort Incidents - Essay Example

In the incident involving Charles crashing his boat with that of Bob Jones causing their boats, as well as a nearby pleasure cruiser, to capsize, Ada, Freddie, Gilly and Ted, and Michael all suffered damages as a result of the incident. In their case, however, because the damages suffered were results of an accident in which Charles, despite being the instigator, undeniably did not intend to cause it; claims for damages must be made on the grounds of negligence. In this respect, as illustrated in Lochgelly Iron and Coal Co v McMullan [1934]1 "strict legal analysis" requires consideration for "the complex concept of duty, breach and damage thereby suffered by the person to whom the duty was owing". Thus, the claimants must illustrate a breach of duty by the defendant to illustrate liability, and consequently justify claims for damages. In the case of Ada, she must show that someone's negligence caused her son's death and the injury she suffered to claim damages under tort. With regard to Bob's death, two parties can be found liable - Charles and the organizers of the Senley Regatta. Charles has a duty of care to Bob at sea to exercise due diligence in driving his boat just as drivers on the road have a duty of care to other cars, which he breached when he crossed Bob's lane without giving appropriate signals - an act which any boat driver must be aware of. This is evident in applying the "neighbour test" in Donoghue v Stevenson [1932]2 and the three stage test in Caparo Industries v Dickman [1990]3. The event organisers, on the other hand, are also liable because they have a duty of care towards its participants and spectators. This duty of care is analogous to that in Michael Watson v British Boxing Board of Control Ltd. [2001]4, where the differences in the facts of the case are immaterial because it is evident that the organisers in both events both failed to put safety measures to ensure the protection of its participants and spectators. The same logic should apply. Hence, both Charles and the organisers are liable for Bob's death, such that Ada should be awarded damages for tort of negligence. With regard to Ada suffering from nervous shock, Bourhill v Young [1943]5 states that in cases of nervous shocks, duty of care requires that the claimant must be sufficiently proximate both with its relationship to the victim and with the incident itself, such that it was witnessed by the claimant in person. This view was furthered in McLoughlin v. O'Brian [1983]6, where it is stated that damages can be awarded if the plaintiff "comes upon its immediate aftermath." In this respect, Ada her sufficiently proximate relationship with Bob, was neither present during the incident nor was she able to arrive immediately at the scene and experience its immediate aftermath. To claim damages, she must therefore illustrate that unlike the case of Alcock v. Chief Constable of the South Yorkshire Police [1992]7, where there were no "depicted suffering of recognizable individuals", the satellite feed she watched on television allowed her to recognise Bob's boat, not only because she was aware he was participating in the event, but also because she recognised his distinctively coloured boat, allowing her to see the suffering of a recognisable individual. While this claim can be risky, because it departs from conventional interpretation, she has a good chance to claim damages for nervous shock, provided that she can illustrate the substantial differences of her case. With respect to Freddie, a fireman who suffered nervous shock after rescuing ten of the children in the pleasure cruiser two of whom died in the hospital, he cannot claim damages under tort of negligence for two reasons. First, even though the rescue doctrine in Wagner v International r.r. Co., (NY) [1921]8 , 9 and in Ogwo v Taylor [1987]10 makes Charles liable to the physical injuries that Freddie may suffer as a result of the rescue; Freddie was not rescuing Charles, but one of the students, who were victims of Charles' negligent act. Thus, this makes the rescue doctrine inapplicable in this case. Furthermore, even if the rescue doctrine is applied, it does not cover nervous shock injuries, but only physical injuries. In this case Bourhill v Young [1943] must be used, which if applied will invalidate Freddie's claim because he does not have a sufficiently proximate relationship with the victims. His claims would have been different if he suffered physical injuries; however this is not the case. Third, looking into the case of Gilly and Ted's son Ethan who was aboard the pleasure cruiser caught up in the collision between Charles and Bob's boats, Charles can also be held liable for Ethan's death. Charles is in breach of his duty of care for the passengers of the pleasure cruiser just as he was in the case of Bob Jones. As parents, Gilly and Ted can therefore claim damages for their son's death. However, while the organisers of the event have a duty of care for Bob, they do not have duty of care for the pleasure cruiser and its passengers because they are neither spectators nor participants of the race and have no responsibility towards them. Lastly, with respect to Michael who is a storeowner in a nearby town whose business was affected by the investigation, his damages are purely economic. However, it will be difficult for him to claim damages for his economic loss. First, the only proximate relationship connecting his losses and the incident is that with the police force who cordoned the area and prevented traffic from reaching his shop in Westburton. Charles cannot be held liable because there is no proximate relationship between the two, hence no duty of care, such that it was impossible for Charles to foresee the damages that Michael incurred. The question is therefore whether the police was negligent, and if they were whether they owe a duty of care towards Michael making them liable and requiring compensation. In this respect, the police cannot be held liable for negligence because as illustrated in Hill v. Chief Constable of West Yorkshire [1988]11, the police chief can have at his disposal resources which he believes, as any reasonable police officer would do, to ensure a proper and speedy investigation. In this case, it was cordoning off the area. Hence, no possible cause of action exists because the police were not negligent, but were simply doing their duty. Even if the police were found to have been negligent in their decision to block traffic, damages based on pure economic loss, which is the only damage suffered by Michael is one that requires scrutiny and conservativeness. In the case of Candlewood Navigation Corporation Ltd v Mitsui O.S.K. Lines Ltd [1986]12, Lord Fraser of Tullybelton stated that "some limit or control mechanism has to be imposed upon the liability of a wrongdoer towards those who have suffered economic damage". In this respect, the concept of public policy is an imperative limit with respect to police activities. As Lord Keith in Hill v. Chief Constable of West Yorkshire states, "the general sense of public duty which motivates police forces is unlikely to be appreciably reinforced by the imposition of such liability so far as concerns their function". Hence, it is unlikely for Michael to receive damages for purely economic loss because doing so would lead to a diversion of police manpower deterring them from more important duties, which is detrimental to the general public. Thus, while Michael and Freddie cannot claim damages for their losses because no party in the incident was liable in breaching a duty of care owed to them; Ada, Ted and Gilly can claim damages for their losses. With respect to Ada, both Charles and the event organisers are liable to her for her son's death and the nervous shock injury she suffered. Her claims, however, are limited to the court's calculation on the loss of chance suffered by Bob, which are to be reduced because she only stands as a secondary claimant; and the damages she suffered as a result of the nervous shock. She may not claim the 50,000 of prize money, however, because although Bob was likely to win it, he did not. Gilly and Ted, on the other hand, can also claim damages from Charles based on the reduced calculation of their son Ethan's lost chances. In this respect, while it is possible to include the 3,000 modelling contract into the calculation, they may not make the calculations based on a probable career as a model, but only on what his future life may have been meant to him13. Both claims, in this respect, are to be awarded under tort of negligence. Cases Cited Alcock v. Chief Constable of the South Yorkshire Police [1992] 1 A.C. 310. Bourhill v Young [1943] AC 92. Candlewood Navigation Corporation Ltd v Mitsui O.S.K. Lines Ltd [1986] AC 1 Caparo Industries v Dickman [1990] 2 AC 605. Donoghue v Stevenson [1932] AC 532. Hill v. Chief Constable of West Yorkshire [1988] 2 All E.R. 238. Hotson v East Berkshire Area Health Authority [1987] AC 750. Lochgelly Iron and Coal Co v McMullan [1934] AC 1 at 25. McLoughlin v. O'Brian [1983] AC 410. Michael Watson v British Boxing Board of Control Ltd. [2001] QB 1134. Ogwo v Taylor [1987] 3 All E.R. 961. Wagner v International r.r. Co., (NY) [1921] 133 N.E. 438. References Weir, T 2004, A Casebook on Tort, 10th edn, Sweet and Maxwell, London. Read More