In this paper, the scenario givenis assessed using the torts of negligence. Negligence is briefly explained beforebeing applied to the situation in order to find the defendants that are liableunder 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 shewas distracted by her phone. This resulted in Rufus’ hip and leg breaking. AtBradfax hospital they failed to diagnose, the former, the late diagnosis meantthat Rufus would have to live with a limp for the rest of his life. But, therewas a 60% chance that even if, the hip injury was diagnosed earlier, Rufuswould still have had a limp in his step. Karl, Rufus’ workmate was burnt in thefire but at the hospital, he was given medicine he was allergic to and had tobe admitted.
During the fire, all the employees of MA had to evacuate thebuilding, as a result, the wage packets were stolen. These issues raised will bediscussed in relation to the tort of negligence, on a claimant by claimantbasis, in order to find which defendants are liable and what defences areavailable to them. Lord Wright in Lochgelly v Iron Co. v McMullan (1934), stated that “in strictlegal analysis, negligence…connotes the complex concept of duty, breach anddamage thereby suffered by the person to whom that duty was owing.”1In his definition of negligence, the three core elements of the tort ofnegligence were expressed. Thus, to make a successful claim in the tort ofnegligence, 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 atthe 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 theclaimant may receive less compensation. The first claimant is Rufus, his claimsare being brought in relation to a potential tort of negligence by Brenda and hisattending doctor in Bradfax hospital. The first criterion is to establish thatthese defendants owed Rufus a duty of care. In common law, where the damage is physicalinjury, such as in Rufus’ claims, there are established categories ofrelationships under which a duty of care is automatically owed. Road users, aswell as Doctor to patient relationships, fall within these establishedcategories that give rise to a duty of care. Thus, both Brenda and the Doctorowe Rufus, a duty of care. Next, the courts may analyse whetherthis duty of care has been breached.
This means that the defendant’s action hasfallen below, the standard of care the law requires. In order to determine the standardof care the courts would establish and if the defendant has reached thisstandard, it will consider how the defendant should have behaved in thecircumstance and how the defendant actually did behave in the situation. Thedetermination 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 manin the defendant’s position have done? In Hazellv British Transport Commission (1958)2,the courts held that if the defendant’s action or failure to act is contrary towhat the reasonable man would have done in the same position as the defendantthen, 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, “tobe expected of an experienced, skilled and careful driver”4.Thus, this standard was expected of Brenda. However, it is evident that she hasfallen 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, asis expected in road traffic accidents, following S.11 of the Civil Evidence Act19685.
Brenda’s action was not one that a reasonable man would have done and thereforeshe is in breach of her duty to care for Rufus. The courts sometimes modify thereasonable man test to take into account certain characteristics of defendantssuch as professionals like Rufus’ doctor. The law requires that theseprofessionals, deal with people with a level competence expected of an ordinaryperson in that profession.
Baroness Hale in ArthurJS Hall & Co v Simons (2002) heldthat the onus is on the claimant to prove that the mistake is one that noreasonably competent member of the profession would have made6.Thus, Rufus’ counsel has to prove that no reasonably competent doctor wouldhave failed to diagnose his broken hip, taking into account that the defendantworks in an environment where decisions and exercise of judgments have to bemade in difficult and constraining environments. As was particularly, the casehere, Rufus was in an emergency situation and it is clear why the doctor mayhave failed to detect that Rufus’ hip was also broken.
Rufus’ doctor’s failureto diagnose one out of the two injuries, Rufus had suffered is an error thatany ordinary doctor could make. Thus, he has not fallen below the standard ofcare expected of him. Therefore, there is no breach of the duty to care. After establishing that there is abreach 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 intofactual and legal causation. Factual causation is worked out on a balance of probabilitiesand legal causation asks whether any of the potential causes should be seen asa cause in law.
The factual causation test is used toprove that the defendant’s action caused the claimant harm. If it did not, thenthere is no liability for negligence. In order to establish factual causation,the claimant needs to prove, on a balance of probabilities, that the defendant’sbreach of their duty to care, not their general actions, resulted in the harmsuffered 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 haveescaped harm, on the balance of probabilities, this is certain. Brenda’sfailure to act as an experienced, skilled and careful driver is why Rufus has abroken arm and hip. Therefore, the factual causation criterion has beensatisfied in regard to Brenda. Concerning, Rufus’ doctor, but for hisnegligent inaction, Rufus would still have had to live with a limp, as therewas a 60% chance that the hip injury would have resulted in a permanent limp.Following the court’s decision in Barnettv Chelsea and Kensington Hospital ManagementCommittee (1969)7,the defendant will not satisfy the factual causation criterion and would not beliable for murder. Thus, only Brenda may go on to satisfythe legal causation aspect. This asks that the claimant to ascertain, theoperative cause of the harm in law. It has two distinct tests, the first askswhether the harm was too remote a consequence of the defendant’s action and theother whether any subsequent event broke the chain of causation.
The first test seeks to establishwhether the defendant’s action was far removed from the harm the claimantsuffered, was unforeseeable by the defendant. This is not the case, for Brenda,her actions were foreseeable. Any reasonable man would have foreseen the possibilityof colliding with another road users, while they were driving negligently.Therefore, the remoteness test fails. The second aspect focuses on, whetherthere are any later intervening acts. For Brenda, she performed the solenegligent 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 thetort of negligence, with none of the three defences open to her. Moving to the next claimant, Karl who iseligible to bring a case against MA. His counsel would start off byestablishing whether they owe him a duty of care. The duty of care can beimposed 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 circumstancesincluding a special relationship between, the defendant and the claimant andwhere there was a special relationship between, the defendant and the thirdparty. MA is Karl’s employer thus it assumesresponsibility for his safety.
Thus, itincurs a duty of care to Karl regardless of whether the damage was caused by athird party. This assumption of responsibility, increased the proximity betweenthe claimant and the defendant, creating a relationship between them in which, foreseeabilityof harm became greater and justifies the creation of a duty of care owed by thedefendant to the claimant. Additionally, Rufus is MA’s employee, thus it assumesresponsibility for him and this close proximity between MA and Rufus, meansthat MA can be liable for Rufus’ negligent actions. Karl must establish whether this duty ofcare 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?8In 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 ina garage with oil on the floor and flammable chemicals. This increased, thelikelihood that a fire would happen and its unlikely that a reasonable mechanicwould have continued welding in that situation. In Bolton v Stone (1951)9,it is observed that increased likelihood of an injury occurring, meantincreased probability that the defendant is liable for failing to take the necessarysteps. In Parisv Stepney Borough Council (1951)10,the courts held that the greater the severity of the potential injury, the morelikely the defendant would be held liable if the damage materialised.
Rufusworked with highly flammable tools, a reasonable mechanic would haveunderstood, how grave an error could be and would have been more cautious thanhe was. The car had been there for half an hour, which is enough time for areasonable mechanic, to notice the oil streak. In Latimerv AEC (1953)11,the cost of taking precautions was another consideration. It would have taken, notime to clean up the streak of oil that caused the fire.
Rufus’ failure to takethis minute precautionary step demonstrates his failure to meet the standard ofcare that a reasonable mechanic would have reached. In all of theconsiderations evaluated Rufus continues to fall below the standard of careexpected, therefore it is apparent that he has breached his duty of care. The next step is to, prove causation. Factualcausation is satisfied as but for Rufus’ negligent action, Karl would not havesuffered the burns. The first test for legal causation, remoteness, is alsosatisfied because Rufus’ actions were one that any reasonable mechanic, couldhave foreseen. However, the chain of causation is broken by a later negligentact. Karl being injected with medicine he was allergic to, was not an act thatwas likely to happen as a result of Rufus’ negligence and therefore, following Home Officev Dorset Yacht co.
(1970)12,this qualified as novus actus intravenous, breaking the chain of causation andfreeing MA from its liability. MA employees’ wage packet was stolenduring the fire. In establishing, whether they could recover their loss throughnegligence. First, the loss needs to be a pure economic loss, this is the onlytype of financial loss the tort of negligence covers. It is as a direct resultof the harm caused by the negligent act.
Second, a duty of care needs to beestablished in order to claim for economic loss. However, the courts normallydo 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 pureeconomic loss. Unfortunately, MA will also be unable to claim for losses as a resultof 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 issueswhich were assessed using the tort of negligence. Establishing liability foreach defendant on a claimant-by-claimant basis. Rufus claimed against Brendaand his doctor, with the former being successful and the other failing as aresult of the standard of care being met and factual causation. Karl broughtclaims against MA; standing in for Rufus, the third party.
However, the claimfailed due to novus actus intravenous. MA could not claim for pure economic lossbecause his loss did not meet the Steel14 standard and the other loss wasconsequential, not pure.ReferencesKirsty HorseyErika Rackley, Tort LawArthur JS Hall & Co v Simons (2002) 1ACBarnett v Chelsea and Kensington Hospital Management Committee (1969) 1 QBBolton v Stone 1951 ACDonoghue v Stevenson 1932 UKHLHazell v British Transport Commission (1958) 1WLRHome Office v Dorset Yacht co 1970 ACLatimer v AEC 2018 ACLochegelly Iron and Coal Co V McMullan 1933UKHLNettleship v Weston 1971 CANettleship v Weston (1971) 2 QBParis v Stepney Borough Council 1951 ACSpartan Steel & Alloys Ltd v Martin (1972) 3 WLRCivil 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 HospitalManagement 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.