In this paper, the scenario given
is assessed using the torts of negligence. Negligence is briefly explained before
being applied to the situation in order to find the defendants that are liable
under the torts.
Rufus caused a fire in Mack’s Automobile
(MA), as he ran out of the building he collided with Brenda’s van because she
was distracted by her phone. This resulted in Rufus’ hip and leg breaking. At
Bradfax hospital they failed to diagnose, the former, the late diagnosis meant
that Rufus would have to live with a limp for the rest of his life. But, there
was a 60% chance that even if, the hip injury was diagnosed earlier, Rufus
would still have had a limp in his step. Karl, Rufus’ workmate was burnt in the
fire but at the hospital, he was given medicine he was allergic to and had to
be admitted. During the fire, all the employees of MA had to evacuate the
building, as a result, the wage packets were stolen. These issues raised will be
discussed in relation to the tort of negligence, on a claimant by claimant
basis, in order to find which defendants are liable and what defences are
available to them.
Lord Wright in Lochgelly v Iron Co. v McMullan (1934), stated that “in strict
legal analysis, negligence…connotes the complex concept of duty, breach and
damage thereby suffered by the person to whom that duty was owing.”1
In his definition of negligence, the three core elements of the tort of
negligence were expressed. Thus, to make a successful claim in the tort of
negligence, there needs to be; a legal duty to take care owed by the defendant,
a breach of this duty by the defendant and damage suffered by the claimant at
the result of the breach, which the courts do not believe to be remote. However,
the defendant may still avoid liability if he can raise a defence or the
claimant may receive less compensation.
The first claimant is Rufus, his claims
are being brought in relation to a potential tort of negligence by Brenda and his
attending doctor in Bradfax hospital. The first criterion is to establish that
these defendants owed Rufus a duty of care. In common law, where the damage is physical
injury, such as in Rufus’ claims, there are established categories of
relationships under which a duty of care is automatically owed. Road users, as
well as Doctor to patient relationships, fall within these established
categories that give rise to a duty of care. Thus, both Brenda and the Doctor
owe Rufus, a duty of care.
Next, the courts may analyse whether
this duty of care has been breached. This means that the defendant’s action has
fallen below, the standard of care the law requires. In order to determine the standard
of care the courts would establish and if the defendant has reached this
standard, it will consider how the defendant should have behaved in the
circumstance and how the defendant actually did behave in the situation. The
determination of a breach usually turns with the particularities of a case.
Following Lord Atkin in Donoghue v Stevenson, the courts expect that the defendant should act “reasonably”
given the situation at hand. Thus, the question is, what would a reasonable man
in the defendant’s position have done? In Hazell
v British Transport Commission (1958)2,
the courts held that if the defendant’s action or failure to act is contrary to
what the reasonable man would have done in the same position as the defendant
then, there is a breach.
In Nettleship v Weston (1971)3,
the Court of Appeal held that the standard of care for all drivers is that, “to
be expected of an experienced, skilled and careful driver”4.
Thus, this standard was expected of Brenda. However, it is evident that she has
fallen below this standard of care, as she was on her phone while driving.
Notably, the burden of proof is on Brenda to prove that she was not negligent, as
is expected in road traffic accidents, following S.11 of the Civil Evidence Act
Brenda’s action was not one that a reasonable man would have done and therefore
she is in breach of her duty to care for Rufus.
The courts sometimes modify the
reasonable man test to take into account certain characteristics of defendants
such as professionals like Rufus’ doctor. The law requires that these
professionals, deal with people with a level competence expected of an ordinary
person in that profession. Baroness Hale in Arthur
JS Hall & Co v Simons (2002) held
that the onus is on the claimant to prove that the mistake is one that no
reasonably competent member of the profession would have made6.
Thus, Rufus’ counsel has to prove that no reasonably competent doctor would
have failed to diagnose his broken hip, taking into account that the defendant
works in an environment where decisions and exercise of judgments have to be
made in difficult and constraining environments. As was particularly, the case
here, Rufus was in an emergency situation and it is clear why the doctor may
have failed to detect that Rufus’ hip was also broken. Rufus’ doctor’s failure
to diagnose one out of the two injuries, Rufus had suffered is an error that
any ordinary doctor could make. Thus, he has not fallen below the standard of
care expected of him. Therefore, there is no breach of the duty to care.
After establishing that there is a
breach of the duty of care owed to the claimant. Causation needs to be proved,
in order to allocate responsibility for the damage. Causation is divided into
factual and legal causation. Factual causation is worked out on a balance of probabilities
and legal causation asks whether any of the potential causes should be seen as
a cause in law.
The factual causation test is used to
prove that the defendant’s action caused the claimant harm. If it did not, then
there is no liability for negligence. In order to establish factual causation,
the claimant needs to prove, on a balance of probabilities, that the defendant’s
breach of their duty to care, not their general actions, resulted in the harm
suffered by the claimant. The question is; but for the defendant’s carelessness,
would the claimant have escaped harm? But for Brenda’s actions, Rufus would have
escaped harm, on the balance of probabilities, this is certain. Brenda’s
failure to act as an experienced, skilled and careful driver is why Rufus has a
broken arm and hip. Therefore, the factual causation criterion has been
satisfied in regard to Brenda.
Concerning, Rufus’ doctor, but for his
negligent inaction, Rufus would still have had to live with a limp, as there
was a 60% chance that the hip injury would have resulted in a permanent limp.
Following the court’s decision in Barnett
v Chelsea and Kensington Hospital Management
the defendant will not satisfy the factual causation criterion and would not be
liable for murder.
Thus, only Brenda may go on to satisfy
the legal causation aspect. This asks that the claimant to ascertain, the
operative cause of the harm in law. It has two distinct tests, the first asks
whether the harm was too remote a consequence of the defendant’s action and the
other whether any subsequent event broke the chain of causation.
The first test seeks to establish
whether the defendant’s action was far removed from the harm the claimant
suffered, was unforeseeable by the defendant. This is not the case, for Brenda,
her actions were foreseeable. Any reasonable man would have foreseen the possibility
of colliding with another road users, while they were driving negligently.
Therefore, the remoteness test fails.
The second aspect focuses on, whether
there are any later intervening acts. For Brenda, she performed the sole
negligent act and there is no novus actus intravenous to break the chain of causation.
Therefore, causation has been fully satisfied and Brenda is liable under the
tort of negligence, with none of the three defences open to her.
Moving to the next claimant, Karl who is
eligible to bring a case against MA. His counsel would start off by
establishing whether they owe him a duty of care. The duty of care can be
imposed on MA in respect of the actions of Rufus, although he is a third party.
Lord Goff suggested that these duties may arise in a number of circumstances
including a special relationship between, the defendant and the claimant and
where there was a special relationship between, the defendant and the third
MA is Karl’s employer thus it assumes
responsibility for his safety. Thus, it
incurs a duty of care to Karl regardless of whether the damage was caused by a
third party. This assumption of responsibility, increased the proximity between
the claimant and the defendant, creating a relationship between them in which, foreseeability
of harm became greater and justifies the creation of a duty of care owed by the
defendant to the claimant. Additionally, Rufus is MA’s employee, thus it assumes
responsibility for him and this close proximity between MA and Rufus, means
that MA can be liable for Rufus’ negligent actions.
Karl must establish whether this duty of
care has been breached. Rufus is a professional thus the question is whether,
the error that he made is one that an ordinary mechanic would have made?8
In order to set the standard of care, a number of factors will be considered.
The first, is the probability that the injury will occur. Rufus was welding in
a garage with oil on the floor and flammable chemicals. This increased, the
likelihood that a fire would happen and its unlikely that a reasonable mechanic
would have continued welding in that situation. In Bolton v Stone (1951)9,
it is observed that increased likelihood of an injury occurring, meant
increased probability that the defendant is liable for failing to take the necessary
v Stepney Borough Council (1951)10,
the courts held that the greater the severity of the potential injury, the more
likely the defendant would be held liable if the damage materialised. Rufus
worked with highly flammable tools, a reasonable mechanic would have
understood, how grave an error could be and would have been more cautious than
he was. The car had been there for half an hour, which is enough time for a
reasonable mechanic, to notice the oil streak.
v AEC (1953)11,
the cost of taking precautions was another consideration. It would have taken, no
time to clean up the streak of oil that caused the fire. Rufus’ failure to take
this minute precautionary step demonstrates his failure to meet the standard of
care that a reasonable mechanic would have reached. In all of the
considerations evaluated Rufus continues to fall below the standard of care
expected, therefore it is apparent that he has breached his duty of care.
The next step is to, prove causation. Factual
causation is satisfied as but for Rufus’ negligent action, Karl would not have
suffered the burns. The first test for legal causation, remoteness, is also
satisfied because Rufus’ actions were one that any reasonable mechanic, could
have foreseen. However, the chain of causation is broken by a later negligent
act. Karl being injected with medicine he was allergic to, was not an act that
was likely to happen as a result of Rufus’ negligence and therefore, following Home Office
v Dorset Yacht co. (1970)12,
this qualified as novus actus intravenous, breaking the chain of causation and
freeing MA from its liability.
MA employees’ wage packet was stolen
during the fire. In establishing, whether they could recover their loss through
negligence. First, the loss needs to be a pure economic loss, this is the only
type of financial loss the tort of negligence covers. It is as a direct result
of the harm caused by the negligent act. Second, a duty of care needs to be
established in order to claim for economic loss. However, the courts normally
do not impose a duty of care for a loss that is purely economic and Spartan Steel & Alloys Ltd v Martin (1972)13,
showed that a duty of care is only in reference to property damage that led to pure
economic loss. Unfortunately, MA will also be unable to claim for losses as a result
of damage to the building, because these fall under consequential economic loss,
which is outside the ambits of the tort of negligence.
The scenario gave rise to a number of issues
which were assessed using the tort of negligence. Establishing liability for
each defendant on a claimant-by-claimant basis. Rufus claimed against Brenda
and his doctor, with the former being successful and the other failing as a
result of the standard of care being met and factual causation. Karl brought
claims against MA; standing in for Rufus, the third party. However, the claim
failed due to novus actus intravenous. MA could not claim for pure economic loss
because his loss did not meet the Steel14 standard and the other loss was
consequential, not pure.
Kirsty HorseyErika Rackley, Tort Law
Arthur JS Hall & Co v Simons (2002) 1
Barnett v Chelsea and Kensington Hospital Management Committee (1969) 1 QB
Bolton v Stone 1951 AC
Donoghue v Stevenson 1932 UKHL
Hazell v British Transport Commission (1958) 1
Home Office v Dorset Yacht co 1970 AC
Latimer v AEC 2018 AC
Lochegelly Iron and Coal Co V McMullan 1933
Nettleship v Weston 1971 CA
Nettleship v Weston (1971) 2 QB
Paris v Stepney Borough Council 1951 AC
Spartan Steel & Alloys Ltd v Martin (1972) 3 WLR
Civil Evidence Act 1968
1 Lochegelly Iron and Coal Co V McMullan 1933 UKHL.
2 Hazell v British Transport Commission (1958) 1 WLR.
3 Nettleship v Weston (1971) 2 QB.
4 Nettleship v Weston 1971 CA.
5 Civil Evidence Act 1968.
6 Arthur JS Hall & Co v Simons (2002) 1 AC.
7 Barnett v Chelsea and Kensington Hospital
Management Committee (1969) 1 QB.
8 Arthur JS Hall & Co v Simons (2002) 1 AC.
9 Bolton v Stone 1951 AC.
10 Paris v Stepney Borough Council 1951 AC.
11 Latimer v AEC 2018 AC.
12 Home Office v Dorset Yacht co 1970 AC.
13 Spartan Steel & Alloys Ltd v Martin (1972) 3 WLR.
14 Spartan Steel & Alloys Ltd v Martin (1972) 3 WLR.