Torts Law Discussion - Essay Example

Introduction Each of the possible claims arising out of the accident in Bradfax are tortuous and will depend on substantiating the existence of a duty of care in respect of each of the possible defendants. If it is established that a duty of care is owed by each of the defendants, the plaintiffs are also required to prove that there was a breach of that duty of care. A duty of care can exist at both common and statutory law.1 In Donoghue v Stevenson, the doctrine of the ‘duty of care’ was established. Lord Buckmaster stated that ‘the law applicable is the common law…’ 2 In Anns v Merton London Borough Council the test for the duty of care was held to contain three primary functions.3 The first was to determine the remoteness of damage. Secondly, the relationship between the parties must be of sufficient proximity to impose a duty of care. Thirdly, the imposition of a duty of care must be fair and just.4 This three-tier test has been articulated in Caparo Industries Plc. v Dickman.5 Charles/Daryl There is no question that both Daryl and Charles were negligent and as a result Section 1(1) of the Law Reform (Contributory Negligence) Act 1954 will arise. That section provides: ‘Where any person suffers damage as a result partly of his own fault and partly of the fault of any other person or persons ... the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable…’6 This section might operate to reduce the damages recoverable by Daryl from Charles.7 In South Australia Asset Management Corp. v York Montague Ltd (1997) AC 191 Lord Hoffman said, ‘the law limits liability to those consequences which are attributable to that which made the act wrongful.’8 Therefore both Daryl and Charles are responsible for the accident and liability will be shared. Charles/Edgar It is unlikely that Daryl will share responsibility for Edgar’s accident since Charles left Daryl in the street following the accident. Lord Asquith said ‘…For I am persuaded that it is still part of the law of this country that two causes may both be necessary preconditions of a particular result - damage to X - yet the one may, if the facts justify that conclusion, be treated as the real, substantial, direct or effective cause, and the other dismissed as at best a causa sine qua non and ignored for purposes of legal liability….’9 The ‘last clear chance rule’ introduced in Davies v. Mann may operate to implicate . In this case the court found that if proximate cause can be attributed to a lack of proper care and/or conduct by the defendant, he will be liable in damages to the plaintiff. This rule would operate notwithstanding the unlawful act of the plaintiff or any other defendant.10 W. Friedman counters that the ‘last opportunity doctrine’ has evolved to be synonymous with ‘responsibility’ for the injury itself.11 At the same time, the fact that the attending physician was junior will not lower the standard of care.12 The doctrine novus actus internieniens is not likely to permit responsibility to shift from Charles to Daryl. Lord Neil maintains that ‘…even if the defendant is shown to be careless…the liability will only ensue if there is a causal link between the carelessness and the damage’.13 Had Charles stopped and attended to Daryl Edgar might have avoided the accident. In Banett v Kensington Hospital Management Committee a ‘but for’ test was developed. It was held, that the appropriate test for ascertaining the defendant’s liability is a determination of whether or not the resulting harm would not have occurred had it not been for the defendant’s negligence.14 Lord Wilberforce expounded on the ‘but for’ test by saying ‘…first, it is sound principle that where a person has, by breach of duty of care, created a risk, and injury occurs within the area of that risk, the loss should be born by him unless he [the defendant] shows that it had some other cause.’ Secondly, ‘…it is the creator of the risk who, ex hypothesis, must be taken to have foreseen the possibility of damage, who should bear its consequences.’15 Claims against Charles for Nervous Shock For a claim in nervous shock to be successful each of the possible claimants will have to demonstrate that he or she suffered from a recognizable psychiatric condition as a direct result of what he saw in respect of the accident. Lord Ackner said that nervous shock necessarily involved a ‘sudden appreciation by sight or sound of an horrifying event.’16 In Alcock, 95 persons were crushed to death at a football match in Sheffield. Many of those involved as well as close family members suffered from Post Traumatic Stress Disorder and claimed damages for nervous shock. (These victims, bystanders, family and rescuers are generally secondary victims, whereas primary victims are persons directly involved in the accident)17 In McLaughlin v O’Brian it was held that in order for a claimant to succeed in an action for nervous shock he must prove the following: a) That any reasonable person would have suffered a psychiatry condition witnessing a similar tragedy. b) There is proximity in time and distance to the incident causing the nervous shock. c) That he or she saw or heard the incident complained of or witnessed the immediate aftermath directly.18 In a recent case a husband suffered nervous shock after seeing a scar sustained by his wife following an unnecessary mastectomy. The son also recovered damages for a psychiatric reaction to erroneous news that his mother had cancer. These results were held to be part of the aftermath and the victims were treated as secondary victims.19 Geraldine will be considered a rescuer. In McFarlene v EE Caledonia (1994) a man who helped move blankets at the scene of the Piper Alfa oil rig fire was found to be a bystander.20 The facts of this case can be distinguished from the facts in Janet’s case since Janet was directly involved in securing rescue operators and she herself attended to victims. Frank, Heather and Isobel’s cases for nervous shock are strong. They each have the requisite ‘immediate aftermath’ condition. Moreover, they each have the proximate relationship to the primary victims in their capacity as parents. Edgar as a primary victim has an undisputed case for nervous shock.21 Heather/Harassment Section 1 of the Protection From Harassment Act 1997 prohibits conduct that constitutes harassment of another.22 Section 3 of the 1997 makes provision for civil remedies inclusive of damages in respect of harassment as well as a non-harassment order.23 In order for harassment to be actionable the conduct must amount to more than one act and must put the plaintiff in fear of harm.24 The 1997 Act ‘does not define harassment but it includes causing anxiety or distress.’25 Heather’s conduct at the hospital is an isolated incident. However, if by a handwritten analysis Daryl can prove that Heather has written the threatening letters he will have a civil remedy against Heather for harassment as a continuing course of conduct. Moreover, in order for the claim to be successful Daryl will have to prove that the conduct caused him anxiety.26 The police officers may also share responsibility with Heather under Section 1(1) of the Law Reform (Contributory Negligence) Act 1954. The officer’s duty of care arises under the doctrine of negligent misstatement. In Hedley Byrne & Co Ltd v Heller & Partners, Easipower Ltd. asked Byrne to run an advertisement for the company, in response Byrne wanted to know the financial or credit standing of Easipower and made inquiries of Easipower’s bankers, Heller. The bankers replied that Easipower were in good credit standing. The statement was subsequently found to be negligent and Easipower went into liquidation. The court ruled that the relationship between Byrne and Heller was tantamount to a contract and Heller as a result owed Byrne a duty of care not to make statements that were negligent. Lord Devlin went on to say that the defendant was under a duty of care not to be negligent in cases where the plaintiff relied upon the defendant’s special skill and judgment. Lord Reid said that liability could even be founded if the plaintiff was only reasonably expected to rely on the defendant’s statement, provided the statement was not qualified.27 The police officers were negligent in making statements in a public arena and as such it was not unreasonable that persons hearing that conversation would rely on that information. Therefore the police officers are partially responsible to Daryl for Heather’s harassment. Tim/Dr. Dare and the blood transfusion Generally speaking Dr. Dare’s medical treatment in respect of the blood transfusion to Tim despite knowing that Tim’s religious belief prohibited that treatment will give rise to a claim for damages in trespass. However, there are exceptions and Dr. Dare will escape liability by virtue of the common law exceptions which provide good defences. In Re F (Mental Patient: Sterilisation) [1989] 2 All ER 545 it was held that in circumstances where a doctor engaged in a form of treatment when a patient lacked the capacity to give his consent, the doctor would be excused if the treatment was for the purpose of saving the patient’s life.28 Whether or not that treatment was necessary will be examined by reference to accepted medical practice.29 Certainly Tim as a minor was not in a position to give his consent, and the evidence suggests that the blood transfusion was necessary to save Tim’s life. In Re T [1992] 4 All ER 649 if was held that even if a patient signed a refusal to consent to a blood transfusion, the medical practitioner would not be liable in trespass if he or she administered the blood transfusion to save life or to prevent a greater tragedy.30 In Re T’s case the doctor administered a blood transfusion to a patient who expressly said that she did not want one. The House of Lords ruled that the doctor acted out of necessity and would not be liable.31 Therefore any action against Dr. Dare for trespass will fail on the facts of the case. Bibliography Alcock v Chief Constable of the South Yorkshire Police (1991) 4 ALL ER 907 (HL) Anns v Merton London Borough Council [1978] AC 728 (HL) Barnett v Kensington hospital management committee [1969} 1 QB 428 (HL) Caparo Industries Plc. v Dickman [1990] 1 All ER 568 (HL) Davies v. Mann (1842)152 Eng. Rep. 588 Donoghue v Stevenson [1932] AC 562 (HL) Fairchild v Glenhaven Funeral Services Ltd [2002] 1 WLR 1052 (HL) Friedman, W. Contributory Negligence. Last Opportunity. Modern Law Review, Vol. 1, No. 4 (Mar., 1938), pp. 318-321 Froggatt v Chesterfield and North Derbyshire Royal Hospital NHD Trust [2002] All ER 218 (CA) Froom v Butcher (1975) 3 ALL ER 520 (HL) Hedley Byrne & Co Ltd v Heller & Partners (1964) AC 465 (HL) Law Reform (Contributory Negligence) Act 1954 Majrowski v Guy’s & St. NHS Trusts [2006] UKHL 34 http://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd060712/majro-1.htm Viewed January 19, 2007 Markesinis, B.S./ Deakin, S.F. The Random Element of their Lordships Infallible Judgement: An Economic and Comparative Analysis of the Tort of Negligence from Anns to Murphy, (1992) 55 MLR 619 McFarlene v EE Caledonia [1994]1 ALL ER 1 (CA) McLaughlin v O’Brian (1983) AC 410 (HL) Nettleship v Weston [1971] 2 QB 691 (CA) Protection From Harassment Act 1997 Re F (Mental Patient: Sterilisation) [1989] 2 All ER 545 (HL) Re T [1992] 4 All ER 649 (HL) Rogers, W.V.H. Winfield & Jolowicz on Tort. (2002) Sweet and Maxwell South Australia Asset Management Corp. v York Montague Ltd (1997) AC 191 (HL) Stapley v Gypsum Mines [1953] 2 ALL ER 478 (HL) Read More