The Issues as to Potential Civil Claims under the Torts of Negligence, Assault, and Battery - Case Study Example

The factual scenario raises issues as to potential civil claims under the torts of negligence, assault and battery. In order to evaluate the potential liability in tort of both Freddy and Bertie, it will be necessary to consider the following central issues: 1) Freddie’s liability for Bertie being sick and vomiting. 2) Freddie’s liability for locking Bertie in his room; and 3) Bertie’s liability for pushing Freddie in the queue; I shall deal with each separately and consider the realistic prospect of success in bringing a claim. 1. Freddie’s liability for Bertie being sick and vomiting The principle requirement that Bertie must establish to bring a claim against Freddie under the tort of negligence is that Freddie owed Bertie a duty of care, Freddie breached this duty of care and the breach caused Bertie actionable damage, which is not too remote. DUTY OF CARE The first hurdle for Bertie is to establish that Freddie owed Bertie 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 Stevenson1. Lord Atkin asserted that a manufacturer owed a legal duty of care to the ultimate consumer of his product. In discussing duty of care as a legal concept in the tort of negligence, Lord Atkin established the “neighbour” principle. Lord Atkins continued to define the term “neighbour” in the legal sense as being “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.2” The test for establishing a legal duty of care in tort has developed over the years in order to clarify its parameters and provide guidance on when it will arise. In the leading case of Caparo v Dickman3, 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 care4. Accordingly, for the present purposes the first two questions of the test are relevant in determining whether Freddie owed Bertie a duty of care. In applying the test to Bertie’s position, it must firstly be established that it would be reasonable for Freddie to have foreseen that the damage was foreseeable and that Freddie should have taken precautions against this. It is clear that Freddie would have known that by negligently putting salt in Bertie’s tea that this would have caused discomfort and distaste and that the mixture of salt with hot tea may cause injury due to the shock of the taste upon drinking the tea. Freddie may try to rebut this argument by claiming that Bertie becoming unwell and vomiting is an unusual reaction and therefore not foreseeable. However, the general rule as established in the case of The Wagon Mound (No 1)5is that a defendant must take the victim as they find them. Additionally, this principle (often referred to as the “eggshell skull” rule) was further developed in Smith v Leech Brain & Co Limited6where Lord Parker CJ stated that: “it has always been the law of this country that a tortfeasor takes his victim as he finds him”7. In applying the Smith principles to the current scenario by analogy, the relevant question in determining duty of care is not whether it was reasonable that Bertie would vomit, but whether the type of injury caused in Bertie being unwell was foreseeable. Therefore, as the combination of tea and salt renders it foreseeable that Bertie would potentially be unwell on drinking this, then this will point to the duty of care. Accordingly, it would appear on the balance of probabilities that the reasonably foreseeable test has been satisfied and the next question is whether or not there was sufficient proximity for Freddie to owe Bertie a legal duty of care. The facts given indicate that Freddie and Bertie had a minor altercation the day before when Bertie pushed in front of Freddie in the hotel queue. At this point Freddie threatened Bertie and had been attempting to get revenge on Bertie since the incident in the queue. The case of Anns v Merton London Borough8 asserted that the proximity test relies on a consideration of the nature of the relationship between the parties. The courts will consider whether Bertie was a member of a group to which a duty of care was owed. For example, the case of Hill v Chief Constable of West Yorkshire9 considered the police’s failure to arrest the “Yorkshire Ripper”. Despite strong evidence pointing to his guilt (which satisfied the test of foreseeability), the case failed on the issue of proximity. It was asserted that although the police owed a duty of care to the public generally to catch criminals efficiently, it was not possible to define a particular group of potential victims to which a duty was owed, so it was not possible to establish proximity. If we apply this by analogy to Bertie’s position, both Freddie and Bertie had had a previous altercation and Freddie had been attempting to exact revenge on Bertie for the hotel queue incident. Additionally, Freddie and Bertie were in the same hotel and Freddie had been watching Bertie and waited for the right opportunity to put the salt in Bertie’s tea cup as part of his revenge plan. In addition to criminal liability for assault (and the torts of battery and assault, which will be discussed further below)10, Freddie’s actions clearly point to proximity between the two for the purpose of tortious liability in negligence. If Bertie can establish sufficient proximity, the next step will be to prove that Freddie breached his 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 man11”. 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. In Nettleship v Weston12 it was asserted that “A man need not possess the highest expert skill…. It is well established that it is sufficient if he exercises the skill of an ordinary competent man exercising that art13”. It is evident from the information provided that Freddie negligently put salt in Bertie’s tea and in the absence of any sufficient justification or valid defence by Freddie, the doctrine of res ipsa loquitur applies allowing the facts to speak for themselves. Therefore on the balance of probabilities, Freddie will be in breach of his duty of care to Bertie. CAUSATION As a result of Freddie’s breach, Bertie has the onus to 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 Bertie would not have suffered the damage “but-for” B’s negligence14. On the basis of the facts, it is evident that damage Bertie was a direct consequence of Freddie’s negligence and therefore the causation requirement has been satisfied. DAMAGES The main issue now is whether or not Bertie can claim for losses suffered as a result of Freddie’s negligence. 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 wrong15”. With regard to the current scenario, the physical injury caused to Bertie clearly falls within foreseeability principle for recovery of compensation and the damage must not be too remote. With regard to damages awarded for physical injuries in negligence, the courts will award damages under the heading of General Damages and Special Damages. Moreover, when calculating damages for personal injury claims, ultimately it will be a question of fact16. Nevertheless, in the case of Lim Poh Choo v Camden & Islington HA17it was asserted that the approach to non-pecuniary personal injury damages is to balance the subjective assessment of pain and suffering with the objective assessment of the loss of amenities18. The former involves a consideration of the degree of pain actually suffered by the claimant and the latter is awarded based on the degree of deprivation from the claimant’s lifestyle before the accident, taking into account loss of income, employment status and cost of care. Special damages are awarded for actual loss suffered by a claimant up until the date of trail such as loss of earnings. With regard to General Damages, the heads of recovery are for pain, suffering and loss of amenity and future loss of earnings. Moreover, 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 serious19. 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?20” There must be evidence for such an award to be made. However, whilst general damages are not easily calculated there are some guidelines provided by the Judicial Studies Board and Kemp and Kemp “The Quantum of Damages”21 (“the Guidelines”). Additionally, claimants can make a claim for interest in pain and suffering cases and the case of Wells v Wells22 established that damages for pain and suffering interest is calculated from the date of service of proceedings to the date of trial at 3 per cent per annum. As a final point, it is important to mention that Freddie’s putting salt in Bertie’s tea will not constitute the tort of battery as the tort of battery requires the direct application of force to a plaintiff’s person23. Nevertheless, Freddie may be liable for the tort of battery for grabbing Bertie by the elbow in the hotel queue. Freddie’s actions clearly constituted the application of direct force and intention. 2. Freddie’s Threat to Bertie and Locking Bertie in his room Alternatively, Bertie may be able to institute proceedings for the tort of assault, which requires a proof that a plaintiff was in fear of an imminent attack and a defendant will only “commit the tort of assault if he leads B to believe that he is about to commit a battery on B24”. Therefore, in the current scenario, Freddie threatened Bertie that “Touch me again and I will break your arm”, which will satisfy the requirements for assault in tort. With regard to locking Bertie in his room, whilst this may fall within the duty of care and foreseeability criteria for a negligence claim, no actual damage was caused to Bertie, which thereby negates any claim for damages in this respect. 3. Bertie’s Liability to Freddie Bertie could potentially be liable to Freddie for the tort of battery for touching him in the queue and pushing him to get ahead. The general definition of the tort of battery is intentionally touching someone else without permission25. In the current scenario, Bertie clearly touched Freddie without permission, however the requirement of intention or careless must be satisfied as determined in the case of Fowler v Lanning26. Bertie’s attempt to push in the queue is likely to fall within the careless ambit of the necessary intention requirement for the tort of battery, however McBride and Bagshaw assert that in cases of careless applied force, “while in theory B might be able to bring a claim in negligence against A for compensation for any harm that she suffered as a result of A’s actions”27. Therefore, whilst Bertie may potentially be liable for the tort of battery, the reality is that any potential claim of Freddie would be in negligence, with very little change of securing compensation as the facts do not indicate that Freddie actually suffered any physical harm. BIBLIOGRAPHY Horsey, K. & Rackley, (2009). Tort Law. Oxford University Press. John Hodgson & John Lewthwaite, “Tort Law” (2007). 2nd Edition, Oxford University Press Mcbride, N., & Bagshaw, R. (2008). Tort Law. Pearson Jenny Steele., (2007) Tort Law: Text, Cases and Materials. Oxford University Press. Cooke, J. (2007). Law of Tort. Pearson Judicial Studies Board Guidelines at www.jsb.co.uk Read More