Various issues of Tort law

Parties in litigation can only be held liable in negligence if it can be shown that they owed a duty of care to another party who suffered an injury caused by a breach of that duty of care and that the harm was reasonably foreseeable. Even if these criteria are met there are several defences available to the defendant. I will approach the situation regarding each injury in light of this model.

Caroline was a passenger in peters car. In Donohugh v Stevenson Lord Atkin stated that "You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. " This is the genesis of the modern law of tortuous negligence. Later in Caparo Industries Plc.

Respondents v Dickman Lord Bridge of Harwich sought to clarify what this means somewhat and stated that "in addition to the foreseability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of 'proximity' or 'neighbourhood' and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other. "

This appears to refine the principals laid down in Donohugh to show that a person is a neighbour if foreseability of harm and their proximity are great enough that there should be liability and that such liability is fair just and reasonable. However in the same case Lord Roskill observed that "such phrases are not precise definitions. At best they are but labels or phrases descriptive of the very different factual situations which can exist in particular cases and which must be carefully examined in each case before it can be pragmatically determined whether a duty of care exists"

So have the three requirements been met to establish a duty of care between Peter and Caroline? A case which clearly settles this matter is Langly v Dray where the ratio of lord stewart-smith held that "A driver of a motor-car owes a duty to other road users to drive with care and skill so as not to expose them to unnecessary risk of injury. The road users to whom this duty is owed are those whom a reasonable man in his position can reasonably foresee may be injured by the manner of his driving. In the ordinary way, this will include passengers in his car".

These cases show that there can be no doubt that peter did owe Caroline a duty of care as a passenger since she is expressly identified and was in close enough proximity that he should have had her In his contemplation while driving. A breach of duty is a failure to take precautions a reasonable man would take when balancing the amount of harm that could reasonably be foreseen with the practicality of taking those precautions. A good definition of what amounts to a breach of a duty can be found in Blyth V Birmingham waterworks where Lord Alderson B said

"Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. " What a reasonable man is and what ordinarily regulate the conduct of human affairs will vary in the opinion from one person to the next. In Glasgow Corporation v Muir Lord Macmillan observed that "In the circumstances of the particular case, the reasonable man would have had in contemplation….

What to one judge may seem far fetched may seem to another both natural and probable" In spite of this lack of a specific definition I am confident that any judge would hold their to have been a breach because use of a mobile while driving is an offence under Section 26 of the Road Safety Act 2006 for this very reason and although the call was made for a good reason stopping the car to make the call would have been a simple precaution. Causation is about actually causing the outcome and the outcome not being to unlikely a result of the breach, this is called remoteness.

The test for causation is the that the injury must not have been possible without the breach, otherwise known as the but for test a good example of this is Cork v Kirby Maclean. Clearly it can be said that but for Peters breach Caroline's injuries would not have occurred. The type of damage has to be foreseeable, in Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (wagon mound) it was held that this meant that the general type of harm done must have been foreseeable.

(This is a Privy Council case but the domestic courts have followed this ratio many times, an example being Heaven v Mortimore so it can still be considered as binding English law) Clearly a broken arm is a foreseeable event of a car accident. The fact that she suffered a much more severe injury is not relevant because although a person without her condition would have suffered a lesser break and bruises it is the type of harm that must be foreseen and not the degree, and even if this wasn't the case the courts have held the thin skull rule to apply in tort of negligence in the case of Smith v Leech Brain.

This means the claimants own vulnerability cannot be used to reduce liability. Caroline also lost her eye, Although this happened several events down the line this type of remoteness has never been an issue in determining causation so the but for test was still passed. It is not unforeseeable that an eye could be lost in a car accident, the means by which it happened was unforeseeable to any reasonable man but this is irrelevant as shown in the case of Huges v Lord advocate. All that matters is that the outcome was reasonably foreseeable and the fact that it happened by an unlikely means is irrelevant.

The liability disclaimer is void under section 149(2) Road Traffic Act 1988 which has the effect of voiding any agreement to limit a driver's liability to any passengers. Peter may try to argue that Caroline consented to the risk of an accident. Consent requires knowledge of and acceptance of a risk as was the ratio in Morris v Murray. Peters argument may be that Caroline saw the disclaimer and accepted the risk of the insurance company refusing to be liable for her if there was an accident by getting in the car anyway.

This can be distinguished from the rule under s. 149 of the road traffic act because the act is all about agreements to limit liability you don't need to know of any specific risk, consent on the other hand requires knowledge of a risk and is all about personal acceptance, not agreeing with someone else. In Morris v Murray the respondent was drunk and this is what created the knowledge of the risk, Caroline didn't know Peter was likely to drive negligently due to being in a rush and so lacked the knowledge that was required in this case.

However in Murray v Harringay Arena and Wooldridge v Sumner spectators at a sporting event were held to have consented to any harm that they suffer as a result of being close to the action during the normal nature of play (that is to say any harm that is caused by the game proceeding according to the rules). This means it may be possible for peter to argue that the same principal applies to passengers during the normal course of driving if they know the driver is not fully insured. This argument is unlikely to succeed because not having full 3rd party insurance is illegal and in the absence of insurance the driver becomes liable anyway.

Caroline was not wearing a seat belt. Section 1(1) Law Reform (Contributory Negligence) act 1945 states that "Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage"

In the case of Froom v Butcher it was held (ratio) that where a passenger fails to wear a seat belt and doing so would have prevented injury the contributory negligence reduces the damages by 25% and obiter statements were made to suggest that if wearing a seatbelt would have substantially reduced the injury damages will be reduced by 15%, this obiter statement was the ratio of the case of Palmer v Kitley. It is not clear from the facts given if Caroline's injury's would have been reduced or prevented had she worn a seatbelt but it is clear from the case law that the appropriate reduction of damages is 15-25%.

In conclusion Peter is definitely liable for Caroline's injury; His liability is guaranteed to be reduced by 15-25% for contributory negligence. There is a very remote chance that the court will fully negate liability on the grounds of consent. Nisha was a pedestrian and Peter had to swerve in order to ovoid hitting her. Swerving is normally and instinctual reaction, this means the proximity of Nisha to the car and the foreseability that she would be harmed must have been great enough to satisfy Lord Bridges test in Caparo.

Furthermore the ratio of Lord Stewart-Smith in Langly v Dray Cleary identifies Nisha, as a pedestrian, as being owed a duty of care by drivers. The same difficulty in determining if a duty of care had been breached in Caroline's case applies here. It is likely that a court would find that there has been a breach because 40mph is usually over the speed limit in built in areas and the fact he had to swerve implies that this was too fast to stop.

There is a 40% chance that the ambulance services delay in arriving caused harm so it needs to be discussed if or not the ambulance service also has some liability. `In Capital and Counties plc v Hampshire CC Lord Stewart-Smith held that "The fire brigade are not under a common law duty to answer the call for help and are not under a duty to take care to do so. If therefore they fail to turn up or fail to turn up in time because they have carelessly misunderstood the message, got lost on the way or run into a tree, they are not liable. '"