Law of Tort Assignment - Case Study Example

TORT LAW ASSIGNMENT PART JENNY’S LIABILITY. With regard to Rahim’s injuries, the principle requirements that Rahim would have to establish in order to bring a claim against Jenny under the tort of negligence is that Jenny owed Rahim a duty of care; breached this duty of care and the breach caused Rahim actionable damage, which is not too remote. DUTY OF CARE The first hurdle for Rahim is to establish that Jenny owed him a duty of care. The test for whether or not there is a legal duty of care was established in the case of Donoghue v Stevenson ([1932] AC 562). In discussing duty of care as a legal concept, Lord Atkin established the “neighbour” principle, which were defined as “persons who are so closely and directly affected by my act that I ought to reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question.” (1932, op.cit) In Caparo v Dickman ([1990]1 ALL ER 568), the House of Lords confirmed the following three stage test to determine whether a duty of care exists: 1) Whether the consequence of the defendant’s actions were reasonably foreseeable; 2) Whether there was sufficient proximity to impose a duty of care; and 3) Whether it is fair, just and reasonable to impose a duty of care. The latter stage of the test is only applicable when the issue of whether a duty of care exists has to be determined by the courts (Hodgson & Lewthwaite, 2007). Accordingly, for the present purposes the first two questions of the test are relevant in determining whether Jenny owed Rahim a duty of care. In applying the test to Rahim’s position, it must firstly be established that it would be reasonable for Jenny to have foreseen that the damage was foreseeable and that she should have taken precautions against this. However, the main obstacle to a direct claim against Jenny in the current scenario is the fact that there is no explanation for why the oil was on the deck. If Jenny had become aware of the oil being on the deck prior to the accident or alternatively been responsible for the oil spillage, then it is clear that she would have known that in negligently doing so, there was a significant risk of her crew being affected in a hazardous accident for the purposes of establishing duty of care. Although the possibility of harm was clearly foreseeable, Rahim will have difficulty in establishing duty of care and causation if Jenny was not negligent in causing the oil spillage. Moreover, whilst we are not aware of the exact circumstances, there is nothing to indicate that Jenny became aware of the oil spillage and was negligent in failing to clear it up knowing that it could cause an accident. The initial hurdle is to establish that Jenny was negligent. Alternatively, if another crewman was responsible for the spillage, then Jenny may nevertheless be liable to Rahim in negligence under the principle of vicarious liability. If Jenny had been negligent, the nature of the circumstances and Rahim’s position as one of her crewman would clearly point to the reasonably foreseeable test being satisfied and the next question is whether or not there was sufficient proximity for Jenny to owe a legal duty of care. The case of Anns v Merton London Borough ([1978] A.C. 728) asserted that the proximity test relies on a consideration of the nature of the relationship between the parties. The courts will therefore consider whether Rahim was a member of a group to which a duty of care was owed. If we apply this by analogy to the current scenario, it is evident that the nature of Jenny and Rahim’s relationship is sufficient to establish proximity via the employment realtionship (Hodgson & Lewthwaite, 2007). The next step will be to prove that Jenny breached her duty. The standard of care imposed by law in order to determine a breach of duty is objective and that of “the reasonable and prudent man” (Donoghue v Stevenson, 1932). The degree of care to be expected is founded on considering what a reasonable man, careful for the safety of his neighbour would do and requires a consideration of the degree of the likelihood of harm occurring, the cost and practicability of measures needed to avoid it and the seriousness of the consequences (Donoghue v Stevenson, 1932, op.cit). This was confirmed in Nettleship v Weston (1971] 2 QB 691). If we apply this by analogy to the current scenario, notwithstanding duty of care and clear proximity of relationship, the facts appear to indicate that Jenny was not responsible for any negligent conduct as a direct result of any positive action or omission on her part. However, if the oil spillage was caused by another crewman or employee of Jenny in the course of employment, she could be in vicariously liable to Rahim. Causation As a result of Jenny’s breach, Rahim must then prove that on the balance of probabilities the damage was caused in fact and in law by the negligence. The preliminary test for determining causation is the “but-for” test and whether Rahim would not have suffered the damage “but-for” Jenny’s negligence (Cork v Kirby MacLean [1952] 2 ALL ER 402). On the basis of the facts, it is evident that damage to Rahim was caused by the oil spillage however Jenny does not appear to have done this. As such, any claim by Rahim against Jenny will be undermined by lack of causation. As stated above, it appears that the most likely claim Rahim will have against Jenny is for vicarious liability in negligence. DAMAGES It is a general principle of law that a tortfeasor is only liable for damage that is of a kind that is the natural and probable consequence of his wrongful act. It has been asserted “the principle of law is that compensation should as nearly as possible put the party who has suffered in the same position as he would have been if he had not sustained the wrong” (per Lord Scarman in Hodgson & Lewthwaite, 2007). With regard to the current scenario, potential physical injury was clearly a natural and probable consequence of the oil spillage therefore the damage was not too remote for the purpose of recovering compensation. However, overall, the difficulty here is that whilst there was a duty of care the contentious issue is the fact that there is no proof that Jenny was actually negligent, which in turn negates the causation limb of a claim in this tort. Accordingly, any claim that Rahim has against Jenny will be for vicarious liability and this will be subject to Rahim proving that a fellow employee caused the spillage and undertook the negligent act or omission in the course of employment as crewman. Alternatively, Jenny may potentially be strictly liable to Rahim under Health and Safety legislation regulating employee working conditions (Pitt, G, 2007). Additionally, it is possible that Jenny is strictly liable to Rahim under the Occupier’s Liability Act 1957 (OLA) as an occupier. With regard to Jenny’s liability to Ms. Stingray, there was clearly negligence and causation is not in dispute. However, Jenny may argue that there was no proximity of relationship. However, Jenny was clearly aware that there would be other small leisure boats and people in the seas, which will support a personal injury claim by Ms Stingray. Moreover, the damage caused is not too remote for recovery. However, the main issue in dispute will be whether Shazia can make a claim for the psychiatric injury caused by witnessing Ms. Stingray’s accident. Since the landmark decision in the case of Dulieu v White ([1901] 2 KB 669), it has been well established under UK law that claimants can recover damages in negligence actions for psychiatric injury. Whilst it is an established principle of law that damages are not recoverable for grief or sorrow caused by another person’s death per se, damages are recoverable for nervous shock, or for any recognisable psychiatric illness caused by negligence (Hinz v Berry [1970] 1 All ER 1074). Conversely, in the leading case of McLoughlin v O’Brian (1983] AC 410) Lord Wilberforce asserted that “while damages cannot be awarded for grief and sorrow, a claim for damages for “nervous shock”… can be made without the necessity of showing direct impact or fear of immediate personal injury for one’s self…” (at p.418). However, whilst legally recognising the right to recover damages for psychiatric injury in negligence claims, there is a distinction between primary and secondary victims as established in the case of Page v Smith ([1996] 2 All ER 736). With regard to liability for psychiatric injury, where the claimant falls within the category of being a primary victim, the decision in Page affirmed that the relevant test for liability was foreseeability of personal injury. Moreover, Lord Lloyd commented that “liability for physical injury depends on what was reasonable foreseeable by the defendants before the event. It could not be right that a negligent defendant should escape liability for psychiatric injury just because, though serious physical injury was foreseeable, it did not in fact transpire” (at p.759). In the current scenario, Shazia is a secondary victim. The general starting point is that recovery for psychiatric injury is limited for secondary victims on policy grounds. Moreover, it has been limited to claims for nervous shock (Page v Smith, 1996). The leading authority in relation to secondary victims is the case of McLoughlin v O’Brian (1983] 1 AC 410) where the plaintiff was able to recover for nervous shock as a result of witnessing the aftermath of an accident her family were involved with two hours after the event. In considering the plaintiff’s claim for psychiatric injury, the “aftermath” test was established. The aftermath test requires evidence of a close relationship with the victim in terms of proximity, time and space. The law relating to recovery for psychiatric injury in secondary victim cases was again reviewed in the Hillsborough disaster cases (White v Chief Constable of South Yorkshire Police [1998] 3 WLR 1509 and Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310). The Hillsborough decisions created a blueprint point of reference when determining psychiatric injury claims in secondary victim situations: 1) The plaintiff must have sustained a recognisable psychiatric illness; 2) The illness must be reasonably foreseeable; 3) There must be proximity of relationship between the plaintiff and the primary victim, which was further defined as a relationship of closeness based on ties of love and affection; 4) The event must be shocking or traumatic; 5) There must be proximity in space and time of the secondary victim to the event (the immediate aftermath test); and 6) The psychiatric illness must have been directly caused by the traumatic events (Alcock case, 1992). Whilst a distinction between primary and secondary victims is seen as necessary to prevent the opening of the floodgates in the complex area of psychiatric illness claims, the application and development of law in this area has been piecemeal in practice (Steel, 2007). As such, there are no hard and fast rules and if we apply the guidelines to the current scenario, it is evident that Shazia suffered a recognisable psychiatric illness and there was clearly proximity in time and space to the event to satisfy the immediate aftermath test. However, On the other hand, Shazia’s claim arguably falls on the foreseeability tests and proximity as there is no evidence that there was sufficient proximity of relationship between Shazia and Ms Stingray. Accordingly, whilst the courts prefer to limit psychiatric injury claims particularly with secondary victims like Shazia, parts of the factual circumstances satisfy the Alcock blueprint and she may potentially succeed in bringing a claim against Jenny for psychiatric injury. PART 2: CHARLES PORPOISE AND DOLPHIN With regard to Charles’ injury and amputated leg, issues arise with regard to the potential liability if any of the lifeboat services’ for failure to respond to the 999 call and the subsequent flare signal. Firstly, the case of Donoghue v Stevenson (1932) clearly referred to omissions in negligence liability; however UK case law is complex and appears to treat omissions separately under UK law particularly in respect of the duty of public services (Steele, 2007). The leading case in this area is the decision in Capital & Counties plc v Hampshire CC (1997] 3 WLR 331), where Stuart-Smith LJ stated that if a passing doctor “volunteers his assistance, his only duty as a matter of law is not to make the victim’s condition worse” and that there is no positive duty to actually give treatment in the first instance. Moreover, a distinction was made in this case for the purpose of determining liability in negligence for omissions. It was held that if a call was made for help and help was not provided, there was no liability in tort for the failure to “rescue”. However, if a call for assistance was made, which was then taken up and the person assisting subsequently changed their mind and failed to execute; this would then give rise to negligence liability. Additionally, in the case of Gorringe v Calderdale MBC ([2004] UKHL 15) it was asserted by House of Lords that the mere fact that a public body is in a position to save individuals, will not give an automatic right that the body has to save individuals from harm. It was further held that in order for liability to arise in such circumstances, it had to be demonstrated that the public body gave an undertaking to help and there was reliance on the undertaking. As a result, there is clearly no tort in a public body failing to save from harm and if we apply this to Charles’ position, no undertaking appears to have been given by lifeboat services that they would assist Charles and therefore the services will not be liable to Charles. Charles’ case is further weakened by the medical evidence, which casts doubt on whether the failure of the lifeboat services to respond actually caused the need for amputation of the leg. With regard to Darren Saltwater’s claim for compensation, firstly there was no legal obligation on the lifeboat services to respond to the call. Moreover, Darren’s rescue was voluntary and it will be difficult to establish proximity and duty of care against the lifeboat services to bring a claim for compensation. Moreover, Darren did not suffer any personal injury and his claim would be for pure economic loss. The general principle of economic loss was established in the early case of Cattle v Stockton Waterworks ((1875) L R 10 QB 453), where the courts held that unless accompanying physical damage could be established, it was difficult for a claimant to recover damages for pure economic loss. BIBLIOGRAPHY John Hodgson & John Lewthwaite, “Tort Law” (2007). 2nd Edition, Oxford University Press W. Boom., H. Koziol. & C. Witting., (2004). Economic Loss (Tort and Insurance Law). First Edition, Springer. Conaghan, J., W., (1999). The Wrongs of Tort. 2nd Edition. London: Pluto Press. John Hodgson & John Lewthwaite, “Tort Law” (2007). 2nd Edition, Oxford University Press Mark Lunney & Ken Oliphant., (2007). Tort Law: Text and Materials. 3rd Edition Oxford University Press. Gwyneth, Pitt., (2007). Employment Law. 6th Edition Sweet & Maxwell. Jenny Steele., (2007) Tort Law: Text, Cases and Materials. Oxford University Press. Turner, C & Hodge, S. (2006) Unlocking Torts. Hodder and Stoughton. W. Boom., H. Koziol. & C. Witting., (2004). Economic Loss (Tort and Insurance Law). First Edition, Springer. Occupiers’ Liability Act 1957 Occupiers Liability Act 1984 www.opsi.gov.uk Read More