Law of Tort - Lionels Negligence - Case Study Example

The issue that is involved in this case is Lionel’s negligence in pulling out of a side road without paying attention to the traffic on the main road. Negligence has been defined as “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.”1 This would apply in Lionel’s case, because he did not have the right of way on the main road and was negligent in doing something which a prudent and reasonable person would not have done. Lionel had a duty of care to drive his car carefully, to avoid causing harm to others on the basis of the neighbor principle established by Lord Atkinson in Donoghue v Stevenson.2 A neighbor was said to be any person in reasonable proximity who is harmed by an act of negligence. In determining the parameters for establishing negligence Tindal C.J in Vaughn v Menlove had earlier stated: ‘Instead, therefore, of saying that the liability for negligence should be co-extensive with the judgment of each individual, which would be as variable as the length of the foot of each individual, we ought rather to adhere to the rule which requires in all cases a regard to caution such as a man of ordinary prudence would observe”3. Applying this in Lionel’s case, any man of ordinary prudence would have proceeded cautiously out of a side road rather than exiting it while his attention was engaged elsewhere. The duty of care that was set out by Lord Atkinson4 was further refined in the case of Caparo v Dickman5. In this case, the Court set out a three part test to determine whether a defendant in guilty of negligence in tort. The first aspect to be considered is whether the consequences of defendant’s actions are reasonably foreseeable; in Jolley v Sutton6 the damage or harm was held to be reasonably foreseeable. Where Tony, Bill and Maria are concerned, Lionel may be held to be guilty of negligence on the grounds that the damage was reasonably foreseeable. In the case of Maria in particular, Lionel will be responsible, because Maria had a predisposition to illness, i.e, a weak heart and will therefore be responsible for the harm caused to her7. Tony and Bill are the primary victims of the accident, Tony has suffered physical injury and Bill psychiatric injury, i.e, shock. The courts have held that even if injury has not occurred, the reasonable foreseeability that damage could be caused by a negligent act is enough to establish liability8. But in the case of Jill, the question of foreseeability may not be applicable because she is not a primary victim and because her nervous shock was suffered at a location remote from the accident and was caused by her viewing photos rather than the actual event. But liability may be established on other grounds. In the case of Bourhill v Young9there was a similar question of remoteness of damage but the Court held that liability had to be considered in establishing whether any duty of care existed. It was held in this case that no duty of care to the appellant existed since the defendant could not have foreseen the likelihood that the appellant, placed as she was, could be affected by his negligent act. This may also be the case with Jill, because Lionel could not have anticipated that his negligent act would affect her, hence the foreseeability of damage may not be applicable. As a result Lionel may not be liable to Jill in tort on the basis of forseeability of damage, but could be liable under other grounds as detailed further below. Forseeability alone may not however be sufficient to create a duty of care10. Secondly, if liability in tort must be established, there must be a relationship of proximity between the parties which could either be a legal relationship or physical closeness. Such a proximity was established in the case of Home Office v Dorset Yacht Club.11 In this instance Bill, Tony and Maria can establish that such proximity existed, because they were in the car that collided with Lionel’s and the damage is not remote. In a similar way, proximity can also be established in Carla’s case since she arrived at the scene of the accident not five minutes later. Carla has suffered nervous shock and she is a secondary victim, but liability for psychiatric harm and shock can be imputed on the defendant if (a) a close tie of love and affection exists between the claimant and the victim12 and (b) a proximity exists in time and place to the accident13. Both of these exist in Carla’s case because she is Tony’s fiancé and was about to be married to him. Jill is also a secondary victim and has suffered nervous shock. It must also be noted tat there is a very close tie of love and affection between Jill and both the victims, i.e, she is Tony’s aunt and Maria’s sister. In this instance, Lionel’s negligent act has caused Maria’s death, therefore this may be a strong basis to establish liability, despite the lack of foreseeability and proximity. Lastly, it must be fair and reasonable to impose such a duty; for instance the duty was imposed on the fire brigade in Capital v Hampshire County Council14. Where Tony and Maria are concerned, it is likely that the Courts may deem it fair and responsible to impose such a duty, since Lionel was obliged to drive carefully without deliberately causing harm to others, especially a death, through his negligence. In a similar manner, due to the strong ties of love and affection where Carla and Jill are concerned, the Courts may apply the principle in Vernon and Bosley, i.e examining the case on the basis of liability rather than the foreseeability of damage, which would result in Lionel being held liable in tort. But if the local newsagent Brents is to successfully make a claim against Lionel in tort, he must establish (a) foreseeability b) proximity or close ties of love and because he is a secondary victim, he must also establish close ties of love and affection. None of these factors will apply, because Lionel could not have reasonably foreseen that Brents’ business would be affected, moreover Brents has not suffered any psychiatric damage. Moreover, Brents would have to prove that Lionel’s negligent act was the material cause of his losses.15 In this case, it must be noted that unlike Bill, Maria and Tony who are primary victims and Jill and Carla who are secondary victims, the nature of Brents’ losses is not physical or psychiatric but purely economic. As a general principle the Courts have held that where purely economic losses occur without concurrent physical or psychiatric injuries, the duty of care will not be established, irrespective of however readily foreseeable such a loss may have been and whether or not any unfairness was caused to the Plaintiff16. On this basis, Brents may not be able to claim for his losses. It could be argued that Ilovelimos has also suffered losses of 5000 pounds mainly due to the accident, but this may not be adequate to make Lionel liable in tort. As held in the case of Williams v Natural Life health Foods17, unless it can be proved that defendant Lionel in this case) had undertaken responsibility for the plaintiff (ilovelimos) in respect of the loss that is being complained of, liability will not be established. On the basis of the above, Lionel will be liable in tort for the damages and injuries suffered by Bill, Tony, Mria and Carla. Liability may also be established in the case of Jill, due to the close relationship she shared with the victims. But where Brents and Ilovelimos are concerned, it appears unlikely that the Courts would find Lionel liable in tort. Bibliography Blyth v Birmingham Waterworks Co, (1856) 11 Ex 781 Bourhill v Young (1942) 2 All ER 396 HL Caparo v Dickman (1990) 2 AC 605 Capital v Hampshire County Council (1997) QB 104 Donoghue v Stevenson (1932) AC 562 (HL) Home Office v Dorset Yacht Club (1970) AC 1004 Jolley v Sutton LBC (2000) 1 WLR 1082 Marc Rich and Co AG v British Marine Co Ltd (1995) 3 All ER 307 HL Page v Smith (1995) 2 All ER 736 HL Smith v Leech Brain and Co(1962) 2 QB 405 Vaughan v Menlove (1837) 3 Bing. N.C. 467 Vernon v Bosley (1997) 1 All ER 577 White v Chief Constable of Yorkshire Police [1999] 2 AC 455 Williams v Natural Life health Foods Ltd (1988) 2 All ER 577 Wilsher v Essex AHA (1988) 1 All ER 871 Read More