How to Obtain Compensation: An Introduction to the Law of Tort

Following an accident involving a driverless lorry with ill-maintained and insecure brakes (owned by Albright Brothers) careering down a hill into a group of people at a bus stop, a 14 year old school girl, Alison witnesses her twin brother being killed by the impact from the other side of the road. At the same time, Mrs. Mary Thompkinson witnesses fire-fighters trying to cut her badly injured 15 year old son Thomas from the wreckage, having driven back to the bus stop after seeing an ambulance speeding past her towards where she dropped him off.

Both Alison and Mrs.Thompkinson have been deeply traumatized by these events. I have been asked to consider how Alison and Mrs. Thomkinson might claim compensation through the law of tort from Albright Brothers, the Haulage company that owned the lorry. I will identify the legal points raised by this case apply the facts to the relevant principles and give an indication of what I think will be the likely outcome.

Negligence is a type of tort under which a person whose property has been damaged or who has suffered injury through someone else's careless action can claim damages (compensation) from him. To bring a claim, the injured person must show that:She therefore sued the manufacturer in tort. She had no difficulty in proving that he had been negligent in the preparation of the drink but the House of Lords had to decide how far his responsibility extended. It was held that he owed a duty of care to his 'neighbour', that is anyone he could reasonable foresee would be affected by his actions. As it could be reasonably foreseen that the consumer of the beer would be affected by what the manufacturer did when preparing the beer, Mrs.

Donoghue won her case. In negligence, duty of care is the legal responsibility owed by one person to someone else not to act carelessly. If this duty is broken and the other person is injured as a result, compensation (damages) must be paid by the person causing the injury. In deciding if the duty of care is owed by one person to another, the court will take into account: In this case I believe that a breach of the duty of care has occurred, due to the facts that an accident is likely to happen if the brakes of a lorry are poorly maintained and insecure.

Any accident caused is potentially likely to be very serious as a lorry is a large and heavy vehicle and there is a strong possibility that anybody hit by the vehicle whilst it was in uncontrolled motion (not least if there was a driver and he needed to brake to avoid an accident) would be killed or very seriously injured upon impact. Albright Brothers have failed to act reasonably in this case because they did not repair, replace or even maintain the brakes on one of their lorries adequately enough. A reasonable person would have made sure that their vehicle was in good working order before taking it out onto the road.

Causation in negligence means that the breach of the duty of care must directly cause the injury that the claimant suffered and must not just be one of the possible causes. (Wilsher v Essex (1983)). In deciding whether the defendants actions caused the claimants injuries, the court will decide whether the injury would have happened if the defendant had not breached the duty of care. (Barnett v Chelsea and Kensington HMC (1968)). In this case, it is assured that the accident is the only cause of emotional injury to Alison and Mrs.

Thompkinson as they are both traumatized as a result of it and its consequences. Nervous shock is psychiatric damage, rather than just emotional upset, caused by the sudden sight or sound of a horrifying event. (Alcock v Chief Constable of South Yorkshire (1991)). The right to claim depends on whether the victim was actively involved in the event or a passer by. Primary Victim – actively involved A claim can be made if it could be reasonably foreseen that someone in his position would suffer physical harm and he suffered nervous shock as a result Secondary Victim – passive observer who just sees the event

A claim can be made if the claimant saw a close relative injured with whom he has a relationship of 'love and affection' and he was physically close to the accident and he saw the accident happen or the results shortly afterwards and he suffered nervous shock as a result. In this case, both Alison and Mrs. Thompkinson are Secondary victims. They have both seen close relatives whom they have a relationship of 'love and affection' become seriously injured or killed, Alison has seen her twin killed and Mrs. Thompkinson has seen her son seriously injured. They were both physically close to the accident, though Mrs.

Thompkinson did not witness the actual accident, but she has seen the effects very shortly afterwards. Whether or not they have both suffered nervous shock will be up to the courts to decide, more than likely on doctors reports and psychiatric analysis. If it is decided that they have suffered nervous shock as opposed to just severe emotional distress, then they will both be able to claim. Strict liability offences are those which do not require proof of mens rea for at least one element of the actus reus. This means that a defendant can be guilty even though he does not have the intention to do the crime.

Usually, there must be intention to do part of the actus reus. This case is a strict liability offence, Albright Brothers are strictly liable if it is decided that they owe a duty of care to Alison and Mrs. Thompkinson and that they have breached this duty of care and nervous shock has been suffered as a result. Damages can only be claimed for injuries if they are directly caused by and closely connected with a breach of the duty of care. Injuries that are a result of the defendants actions but not too closely connected with the breach are said to be too remote.

In the Wagon Mound (1961), it was held that damages could only be claimed for injury or damage that is reasonably foreseeable. It is sufficient to show that damage is a possibility (reasonably foreseeable), not that it is likely to happen. A claim will be successful as long as the type of damage is foreseeable, even it is much more extensive than could have been foreseen (Bradford v Robinson Rentals (1967) or if it happens in a way that could not have been foreseen. The aim of damages in tort law is to put the claimant in the position he would have been in, if the tort had not happened.

Looking at the legal issues and facts of this case, I believe both Alison and Mrs. Thompkinson both are able to claim damages, provided that the court finds that Albright Brothers owed them both a duty of care, that Albright Brothers breached that duty of care and also that they both suffered nervous shock as a result of that breach. I would say that they have a strong chance of being successful as they are in a good position to show they were owed a duty of care and that it was breached by Albright Brothers failing to maintain, repair or replace the faulty brakes on their accident-causing lorry.

They are both related to victims of the accident and were there when the accident occurred or in the case of Mrs. Thompkinson, shortly after and witnessed their loved ones being injured and/or killed. The only thing that could possibly be in contention, is whether they actually suffered nervous shock, which is something I cannot comment on with any authority without sufficient medical evidence, the same for the court.

If it is found that they have both suffered from nervous shock, on top of the breach of duty of care, then they would be able to claim damages.

Bibliography

Books Martin J. , Gibbons M. , The Complete A-Z Law Handbook, Hodder and Stoughton (2002) 2nd ed. , passim Charman M. , Martin J, Turner C, AS &A2 Study Guide, Pearson Education (2000), pgs 90-112 Cases Donoghue v Stevenson (1932) AC 562 Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd, The Wagon Mound .