The Factual Scenario on Various Issues Regarding Potential Claims under the Tort of Negligence - Case Study Example

The factual scenario raises various issues regarding potential claims under the Tort of negligence and I shall deal with each in turn Brian’s Rights in respect of the fractured wrist and lost holiday With regard to Brian’s claim, he would have to establish a duty of care and negligence and the issue in the current scenario is who the appropriate defendant is as potentially Brian has a claim against Fresco Supermarkets who will vicariously liable for his injuries if negligence can be established (Hodgson & Lewthwaite, 2007). 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 blameless (Steele, 2007). For example, in the case of Rose v Plenty ([1975] 1 WLR 141), an employee was acting in a manner expressly prohibited by the employer; however the Court of Appeal (COA) held the employer liable under the principle of vicarious liability. Moreover, the COA held that in order to establish vicarious liability, the claimant must establish the following: 1) The company workers were “servants” of the defendant; 2) The company workers were acting in the course of the defendant’s business. If we apply this to the current scenario, there does not appear to be any issue as to whether Alan was an employee of Fresco. The relevant issue therefore is whether Alan’s was negligent and that the negligence was in the course of employment and not “on a frolic of his own” (Per Parke B, in Joel v Morrison (1835) 6 C&P 501). 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 Ahmad ([1974] 1 WLR 1082) it was held that deliberate wrongdoing by the employee was unlikely to be attributable to an employer. If we apply this to the current scenario, it is evident that Alan’s conduct was not deliberate wrongdoing and on this basis, and due to the general policy reasons in favour of a presumption of vicarious liability; there is a strong likelihood that Fresco will be vicariously liable if negligence can be established (Wild & Weinstein, 2010). The principle requirements under the tort of negligence is that Fresco owed Brian 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 Stevenson ([1932] AC 562). 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.” Moreover, in the case of 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. Furthermore, the proximity text set out in the case of Anns v Merton London Borough ([1978] A.C. 728) is established in the current scenario as Brian would clearly be a member of a group to whom the company owed a duty of care as an employee of Fresco working on the Tobacco stall. Additionally, it is clearly just and reasonable to impose a duty of care. With regard to causation, the preliminary test for determining causation is the “but-for” test and whether Brian would not have suffered the damage “but-for” the negligence (Cork v Kirby MacLean [1952] 2 ALL ER 402). With regard to Brian’s potential claim, 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 remote (Hodgson & Lewthwaite, 2007). If we apply this to the current scenario, Alan inadvertently pressed the accelerate button on the handlebars, which then went into Brian’s stall. The main issue in contention will be the extent to which the damage to Brian was not too remote. The issue of causation and remoteness is contentious in negligence cases. On the hand there is the directness test where provided negligence and duty of care is established, a defendant will be liable for all direct damage (Hepple & Matthews, 2009). For example, in RePolemis ([1921] 3 KB 560) the House of Lords held that although the fire was not a reasonably foreseeable consequence, there had been a breach of duty of care and therefore all the damage represented a direct consequence of the negligence and therefore was recoverable. Nevertheless, in RePolemis and Glasgow Corp v Muir ([1943] AC 448) it was held that where the a re a significant number of interconnected events comprising the chain of events leading up to the cause of damage, then this reduces the likelihood of the damage being reasonably foreseeable. If we apply this by analogy to the current scenario, there were numerous interconnected events that led to Brian’s injury, which will impact satisfaction of the forseeability test. Additionally, in the Wagon Mound ([1961] AC 388) it was asserted that: “a man must be considered responsible for the probable consequences of his act. To demand more of him would be too harsh a rule.” The Wagon Mound decision further determined that the natural and probable consequence of the act should be determined objectively. Overall, the courts have taken a liberal view of foreseeability. For example, in Lamb v London Borough of Camden ([1981] QB 625) Lord Denning commented that the remoteness test determined the foreseeability requirement on grounds of what was “just”. Additionally, in Jolley v Sutton London Borough Council ([2000] 1 WLR 1082) reference was made to the decision in Hughes v Lord Advocate ([1963] AC 837) in highlighting that even if a claimant’s injuries were not foreseeable, liability could still be established if it could be demonstrated that the injury sustained fell within a “predictable range” of possible injuries that “ought to have been foreseen”. If we apply this to the current scenario, whilst Brian’s injury may not have been sustained in a foreseeable manner, it is clearly arguable that his injury was within the “predictable range” of injuries. Accordingly, it is likely on policy grounds and the court’s preference for the liberal approach that Brian will be able to determine foreseeability and satisfy the remoteness test in order to claim for negligence. With regard to compensation, Brian will be able to recover damages under two heads of recovery; namely general and special damages (Norris et al, 2010). Therefore there is a strong likelihood of Brian succeeding in a claim for special damages for any loss of earnings to the date of trial in any action against the company (Horsey & Rackley, 2010). With regard to general damages, the most likely heads of recovery applicable to Brian will be recovery for pain, suffering and loss of amenity, and potentially future loss of earnings (Brown & Katlow, 2008). 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 serious. 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?” 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” (“the Guidelines”), which should be referred to in attempting to value the claim and considering the appropriate success fee. Therefore, when calculating damages for personal injury claims, ultimately it will be a question of fact (Lunney & Oliphant, 2008). Nevertheless, in the case of Lim Poh Choo v Camden & Islington HA ([1980] AC 326) it 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 amenities. 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. However, with regard to Brian being unable to go on holiday and losing the cancellation fee, this constitutes pure economic loss. The traditional objective of negligence is 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 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. The general presumption against a claim for pure economic loss was also illustrated in the case of Weller v Foot and Mouth Disease Research Institute ((1966) 1 QB 56) and Candlewood Navigation Corporation v Mitsui OSK Lined (1985) 2 ALL ER 935). Mrs Todd With regard to Mrs Todd’s injuries, similar to Brian’s legal position it is likely that Mrs Todd will also have a claim against Fresco for negligence. As highlighted in the previous section, with regard to causation, the preliminary test for determining causation is the “but-for” test and whether Mrs Todd would not have suffered the damage “but-for” the negligence (Cork v Kirby MacLean [1952] 2 ALL ER 402). With regard to the severity of Mrs Todd’s injury and her pre-existing conditions of osteoporosis and arthritis, this will not negate causation as in the case of Smith v Leech Brain & Co ([1962] QB 405) the egg shell skull rule was asserted whereby a defendant takes a victim as he finds him. As such, any pre-existing conditions which may predispose the victim to worse injuries or damage in the event of negligence will not impact causation for the purposes of a claim. Therefore, it is highly likely that Mrs Todd will succeed in a claim against Fresco for negligence and damages will be awarded for general and special damages in line with the principles discussed above. However, as Mrs Todd was driving the mobility scooter in the supermarket, it is possible that any damages awarded may be reduced on grounds of contributory negligence under the Law Reform (Contributory Negligence) Act 1945. As a result of witnessing the incident, Mrs Todd’s husband fainted and hit his head believing Mrs Todd to be dead. Unfortunately, Mrs Todd’s husband developed a blood cot and died and as a result, Mrs Todd may have a claim for wrongful act causing death under section 1 of the Fatal Accidents Act 1976 (the Act). Under Section 1 of the Act, Mrs Todd could make a claim for economic loss as a dependant (Section 1(1)). Additionally, under section 1A of the Act, Mrs Todd will be able to make a claim for damages for bereavement and any such award will limited to £10,000 (Section 1(3)). Additionally, under section 3(5) of the Act, Mrs Todd will be able to recover damages in respect of funeral expenses. However, Mrs Todd would have to establish negligence and the two main issues in contention are as follows: 1) Whether Mr Todd’s injury was foreseeable; and 2) Whether the events caused Mr Todd’s death. It is evident that Mr Todd was shocked at seeing the events and thought his wife was dead or injured and as a result fainted and hit his head. Whilst his injury was not foreseeable, due to the liberal interpretation applied by the courts, it may fall within the “predictable range of possible injuries”. However, it may be difficult to argue proximity as Mr Todd was arguably a secondary victim under the test in Page v Smith ([1995] UKHL 7). The next potential obstacle is establishing causation as the facts indicate that Mr Todd died of a blood clot. Under the legal causation test, it is acknowledged that the defendant’s conduct doesn’t have to be the sole cause of death however it must be the substantial cause and have made a significant contribution to the victim’s death (R v Cato [1976] 1 All ER 260). Therefore, if the blood clot is related to the original injury it may not constituted a novus actus interveniens to be so independent of the original injury (Steele, 2007). Therefore in summary, Brian will most likely have a claim for negligence against Fresco on grounds of vicarious liability and will be able to claim general and special damages. However, as his holiday and cancellation fee constitute pure economic loss, it is unlikely he will recover costs in respect of these. With regard to Mrs Todd, she also has a claim against Fresco for negligence and potentially a claim under the Act for wrongful death. BIBLIOGRAPHY Brown & Katlow (2008) Civil Litigation. College of Law Publishing B. Hepple & M.Matthews, (2009) Casebook on Tort. 6th Edition Butterworths John Hodgson & John Lewthwaite, “Tort Law” (2007). 2nd Edition, Oxford University Press. K. Horsey & Rackley, (2009) Tort Law, Oxford University Press. Judicial Studies Board’s Guidelines for the Assessment of General Damages in Personal Injury cases. Available at www.jsb.co.uk M. Lunney & K. Oliphant (2008) Tort Law, Text and Materials. 3rd Edition, Oxford University Press W. Norris, C. Cory-Wright & P. Andrews (2010) Kemp & Kemp: Quantum of Damages. 4th Edition, Sweet & Maxwell. Jenny Steele., (2007) Tort Law: Text, Cases and Materials. Oxford University Press. C. Wild & S. Weinstein, (2010) Smith and Keenan’s English Law.16th Edition, Pearson Ed Legislation Law Reform (Contributory Negligence Act) 1945 Fatal Accidents Act 1976 All available at www.opsi.gov.uk accessed October 2010. Read More