Tort Law Problem Case

The Plaintiff (widow of the deceased) namely Mrs Fogg is alleging, inter alia1 that the SimpleFlight. Com and Passepartout NHS Trust has caused the death of Mr Fogg and that the defendants are liable of negligence and trespass to the person. My legitimate concern is to acknowledge the involvement of the third party namely 80 Day Tour Travel which also plays a significant role in this case. In establishing negligence I shall examine all the elements of liability2 of SimpleFlight. Com and Passepartout NHS Trust to Mr Fogg.

Negligence involves duty of care3, Breach of the duty of care4, causation5, demage6 and remote7. To establish the breach of the duty of care I shall consider the factors and standard reasonableness as defined in the case of Blyth v Birmingham Waterworks (1856)8 "Negligence is the omission to do something, which a reasonable man, guided upon those considerations, which ordinarily regulate the conduct of human affairs, would do, or doing something, which a prudent and reasonable man would not do. The standard demanded is thus not of perfection but of reasonableness.

It is an objective standard taking no account of the defendant's incompetence - he may do the best he can and still be found negligent" 9 To ascertain if Mr Fogg was injured as the result of 80 Day Tour Travel I shall consider did they acted negligence in fulfilling their duty of care towards their passenger. Negligence is first defined in the case of Donoghue v Stevenson10 where Lord Atkins laid down famous neighbour principal ''that you owe a duty to whoever is your neighbour and your neighbour in law is someone closely and directly affected by your acts''11 the primary factor of negligence is the legal duty of care.

The case of Caparo v Dickman12 replaced the two stage test developed in Anns case13. Which was overruled in the case of Murphy v Brentwood District Council 14 so I shall use three stage test which was introduced in the case of Caparo v Dickman15 Mr Fogg had been on a numerous tours by 80 Day Tour Travel coaches which contemplate he knew that these coaches had minimal leg room; on average of 10cm less than other coach companies and his journey will be lengthy therefore he was able to anticipate the distress.

The affects are reasonable foreseeable by a reasonable person because the conditions of coaches, case in point is Palsgraf v Long Island Railway Co 16 and the case of Cummings17 the claimant took the risk of not wearing helmet at work and due to his dangerous behaviour he died after his fell and the question was on whom the burden of proof lies on, the answer was given in the case of McGhee18 where Lord Wilberforce stated who should go through to carry the consequences the employer or the employee, and is answered as follow one who creates the risk and who had seen the forcibility of the damage suffered by him therefore should be willing to face the consequences.

Mr Fogg had the choice to travel by a comfortable coach but he voluntarily chosen 80 day tour travel case in point is JAMES EVANS19 which says that there is no duty to protect obvious risks Mr. Phillies owed a duty of care to the passengers of carrying them from one destination to the other, and also provide seating to all passengers. Duty of care is stated as ''an individual may be owed a duty of care by another, to make sure that they do not suffer any unreasonable damage''20 in Bolton v Stone21 case. Lord Radcliffe stated "....

I cannot persuade myself the Appellants have been guilty of any culpable act or omission in this case .. " There are insufficient evidence showing the foreseebilty of the accident by Mr Phileas case in support is Mullin v Richards22 I believe that Mr Phielies took reasonable care by booking through a cheap flight from SimpleFlight. Com. As Mr Fogg is contracted with cheap travel there is no need of luxury airline. Although it was not foreseeable that the coach will breakdown it is still 'neither fair, or just and reasonable'' to oblige liability on Mr Phileas: Latimer v AEC Ltd23 where it Held that D had reasonably dealt with the circumstances; it is not possible to annihilate the risk without shutting the factory.

When the coach had mechanical trouble en route and broke down in Northumbria. Mr Phileas, contacted the simpleFlight. Com to arrange for his passengers to finish the final phase of their journey by flying from Newcastle to London and he booked seats on SimpleFlight. Com which is a known for providing cheap low budget flights and for providing least leg room for passengers, at least 5cm less than their competitors. Upon landing at London Airport Mr Fogg suffered a severe pain in his leg and complaint it to SimpleFlight. Com that he could not walk. SimpleFlight. Com Ltd: liability in negligence SimpleFlight. Com owed the duty of care to Mr Fogg to make sure he is safely embarked and disembarked and have safe flight.

As in the case of Griffiths v Brown and Lindsay24 D ( taxi driver) safely dropped his passenger close to a traffic lights for pedestrians, claimant was struck by a another car whilst crossing the road. It was held that the cab driver's duty is to drop the passenger safely and after that it is neither reasonable nor practicable to require a taxi driver to assume the passenger's state of drunkenness before dropping. Article 20 of Warsaw Convention treaty25 states "The carrier is not liable if he proves that he and his agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.

" SimpleFlight.com is known for providing cheap low budget flights and for providing minimal leg room for passengers, at least 5cm less than their competitors which means there can be harmful risk. But the flight travel from Newcastle to London approximately lasts for 30 minutes therefore it is way too short to cause a blood clot. in the objective test26 it make sense of reasonableness that SimpleFlight. com Ltd providing such services are appropriate air travel in terms of domestic and brief flights, Nettleship v Watson 197127. The vicarious factor for informing the victim in inter alia can be understood by Morris v West Hartlepool Steam 195128. Mr Fogg choice of travelling by low-budget coach does not amount to negligence by the airline.