The Application of the Law of TORT - Assignment Example

1) With regard to Bill’s widow Gina and their son Jack, Gina may have a claim for wrongful act causing death under section of the Fatal Accidents Act 1976 (the Act). Under Section 1 of the Act, Gina could make a claim for economic loss as a dependant1. As Gina was married to Bill and they have a son Jack, both will fall within the definition of “dependant” under section 1(3) of the Act to make a claim. Additionally, under section 1A of the Act, Gina will be able to make a claim for damages for bereavement and any such award will limited to £10,0002. Additionally, under section 3(5) of the Act, Gina will be able to recover damages in respect of funeral expenses. In order to make a successful claim, Gina will need to establish that Bill’s death was caused by negligence and this further raises the issue as to the appropriate defendant. The most likely defendant will be the Big Yellow Bus Company, who will be vicariously liable if negligence can be established3. It is a general rule of tort law that the very fact of employment gives rise to vicarious liability irrespective of whether employer itself is blameless4. In Rose v Plenty5 the Court of Appeal established the following criteria for vicarious liability: 1) the company workers were “servants” of the defendant; 2) the company workers were acting in the course of the defendant’s business6. If we apply this to the current scenario, there does not appear to be any issue that Bobby was employed by the bus company and the issue will be whether Bobby was acting in the course of employment and not “on a frolic of his own”7. If the latter is found to be the case, the appropriate defendant will be Bobby. The case law demonstrates a strong presumption in favour of vicarious liability whenever the employee is at “work”, however in the case of Keppel Bus Company v Saad Bin Ahmad8 it was held that deliberate wrongdoing by the employee will negate vicarious liability. On the one hand it is arguable that Bobby was on a “frolic of his own” in taking a detour from his route, however he was doing so to avoid congestion as part of the performance of his duties and therefore it is most likely that Bobby’s conduct will be in the course of employment rendering the bus company the appropriate defendant. The principle requirements under the tort of negligence is that the bus company owed Bill a duty of care, it breached this duty of care and the breach caused damage which was not too remote. The test for whether or not there is a legal duty of care was established in the case of Donoghue v Stevenson9. Moreover, in the case of Caparo v Dickman10, 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 care11. If we apply this to the current scenario, the driver clearly owed a duty of care to his passengers and it is foreseeable that failure to take reasonable care could potentially risk damage to the passengers, thereby satisfying the duty of care. Furthermore, the proximity text set out in the case of Anns v Merton London Borough12 is established as Bill is clearly a member of a group to whom the company owed a duty of care. With regard to causation, the preliminary test for determining causation is whether Bill would not have suffered the damage “but-for” the negligence13, which is clearly satisfied in the current scenario. Accordingly, negligence has clearly been established and Gina will be able to bring a claim against the bus company under the Act. 2) With regard to David’s mother’s claim for nervous shock against the bus company under the principle of vicarious liability, the case of Dulieu v White14 establishes the general principle that claimants can recover damages in negligence actions for psychiatric injury. The law relating to the recovery of damages for psychiatric injury is complex and damages are not recoverable for grief or sorrow caused by another person’s death per se15. Conversely, in the leading case of McLoughlin v O’Brian16 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 ….personal injury.17” However, whilst legally recognising the right to recover damages for psychiatric injury in negligence claims, policy justifications have led to a distinction between primary and secondary victims, which was established in the landmark case of Page v Smith18 where the distinction between primary and secondary victims effectively created different tests for the recovery of damages for psychiatric claims. In the current scenario, David’s mum will constitute a secondary victim. The general starting point is that recovery for psychiatric injury is limited for secondary victims on policy grounds.19 The leading authority in relation to secondary victims is the case of McLoughlin v O’Brian20 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. Lord Wilberforce further clarified this test by stating that the aftermath test required 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.21 The White decision involved a test case by police officers on duty at the grounds and the Alcock decision pertained to the claims of victim’s relatives. Both decisions lent towards limitation of damages claims for psychiatric injury in order to protect against floodgate claims on policy grounds. Moreover, 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 events22. As such, there are no hard and fast rules and if we apply the guidelines to the current scenario, it is evident that David’s mum suffered a recognisable psychiatric illness and there was clearly proximity in time and space to the event to satisfy the immediate aftermath test as she received the text at the time of the event. Additionally, David’s mum has proximity of relationship with him as his mother. Accordingly, whilst the courts prefer to limit psychiatric injury claims particularly with secondary victims like David’s mum, the factual circumstances appear to satisfy the Alcock blueprint and she may potentially succeed in bringing a claim against the bus company for psychiatric injury. Similarly, in line with the decision in the Hillsborough disaster cases, Usman is likely to satisfy the proximity test to recover damages for nervous shock. 3) With regard to David, 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 and must not be too remote23. The injury in the current scenario clearly satisfies this test and David will be able to recover damages under two heads of recovery; namely general and special damages24. Therefore there is a strong likelihood David succeeding in a claim for special damages for any loss of earnings to the date of trial in any action against the company25. With regard to general damages, the most likely heads of recovery applicable to David will be recovery for pain, suffering and loss of amenity, and potentially future loss of earnings26. Whilst there is no specific mathematical calculation when calculating general damages; with regard to pain and suffering, the award of damages is designed to compensate a claimant for the pain and suffering attributable to the injury both immediately after the accident and in the future if the injury is serious27. It covers both physical injury and psychological injury and the award is made on a subjective basis in asking “what was the pain and suffering of this particular claimant?28” However, whilst general damages are not easily calculated there are guidelines provided by the Judicial Studies Board and Kemp and Kemp “The Quantum of Damages”29 (“the Guidelines”), which should be referred to in attempting to value the claim and considering the appropriate success fee. Any damages awarded to David will take account of any contributory negligence as he was sitting on the stairs on the top deck. At common law, if a plaintiff claiming negligence or breach of statutory duty is contributory negligent, the Law Reform (Contributory) Negligence Act 1945 mitigates liability. 5) With regard to Henry’s claim, it is unlikely to succeed as in negligence the traditional objective of negligence to protect and compensate for physical damage caused by negligence. The general principle of economic loss was established in the early case of Cattle v Stockton Waterworks30, 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. The general presumption against a claim for pure economic loss was also illustrated in the case of Weller v Foot and Mouth Disease Research Institute31 and Candlewood Navigation Corporation v Mitsui OSK Lined32. BIBLIOGRAPHY Book References Brown, K & Catlow, M (2008). Civil Litigation. College of Law Publishing. John Hodgson & John Lewthwaite, “Tort Law” (2007). 2nd Edition, Oxford University Press Kemp and Kemp (Yearly) Quantum of Damages. Sweet & Maxwell Jenny Steele., (2007) Tort Law: Text, Cases and Materials. 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. Case References (in order of appearance) Keppel Bus Company v Saad Bin Ahmad [1974] 1 WLR 1082. Rose v Plenty [1975] 1 WLR 141. Donoghue v Stevenson [1932] AC 562. Caparo v Dickman [1990]1 ALL ER 568 Cork v Kirby MacLean [1952] 2 ALL ER 402. Anns v Merton London Borough [1978] A.C. 728 Hinz v Berry [1970] 1 All ER 1074 Dulieu v White ([1901] 2 KB 669 McLoughlin v O’Brian [1983] AC 410 Page v Smith [1996] 2 All ER 736 White v Chief Constable of South Yorkshire Police [1998] 3 WLR 1509 Alcock v Chief Constable of South Yorkshire Police [1992] 1 AC 310 Cattle v Stockton Waterworks (1875) L R 10 QB 453 Weller v Foot and Mouth Disease Research Institute (1966) 1 QB 569. Candlewood Navigation Corporation v Mitsui OSK Lined (1985) 2 ALL ER 935 Read More