Action for negligence

In regards to Tim actions, I will be advising Tim on whether he is liable for the damage caused to Peter and Sanjev.

To succeed in an action for negligence, a plaintiff must show that a duty of care was owed by the defendant, this is what both Peter needs to prove in order to be compensated for their loss. Duty, breach, causation and damages are the elements which together make up any successful negligence claim.The general principle of duty of care came from the case of Donoghue v Stevenson (1932) where it was held that the manufacturer owed a duty of care to the claimant. In this case, the 'neighbour principle' was derived, otherwise known as the reasonable foreseeability test. However, in the present day, to establish whether duty of care is owed, there is a three-stage test by Lord Keith from the case of Peobody Donation Fund v Sir Lindsay Parkinson & Co Ltd (1985). This test involved the question on whether the damage is reasonably foreseeable. If so, is there sufficient proximity between the two parties. If the first two test is satisfied, then the last test is whether it is 'just and reasonable' to impose such as duty.

However, 'it is far from clear that either proximity or the 'fair, just and reasonable' head is a requirement of the duty of care in cases of physical damage involving positive acts.' The better view is that 'a defendant who, by his own positive act, has carelessly caused physical damage to the claimant or his property is always held to owe a duty of care to the victim.' Applying this to Tim in regards to Peter, Tim owes a duty of care to Peter because Tim has caused damage to Peter's property by losing control of his car, which 'crashed through a fence, and hit Peter's garage.' It is reasonably foreseeable that damage would occur by Tim 'driving his car fast along a quiet suburban street...' It is also foreseeable that because it is a suburban areas, children are likely to be 'riding their bicycles in the middle of the road' therefore Tim should have been driving within the speed limit or better yet slow down because he should have been aware that children will be around.

The next element that needs to be established is whether Tim breached that duty of care by being negligent. In the case of Blyth v Birmingham Waterworks Co. (1856), negligence is defined as:

"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 reasonable man test is an objective test. In the case of Nettleship v Weston (1971) where it was held that a learner driver must show that standard of driving skill of a reasonably competent qualified driver. Another case which involves the reasonable man test is the case of Wells v Cooper (1958) where the defendant fitted a door handle but not to the standard of a reasonable carpenter as the door handle came off and injured the claimant. Jenkins LJ stated:

"…the degree and skill required of him must be measured not by reference to the degree of competence in such matters which he personally happened to possess, but by reference to the degree of care and skill which a reasonable competent carpenter might be expected to apply to the work in question"

Applying this to Tim in regards to Peter, it can be argued that a reasonable man would not have been speeding in 'a quiet suburban street', instead the reasonable man, who is of Tim's age and sex, and a qualified driver, would have driven within the speed limit which can be assumed to be 30 miles per hour. The reasonable man would not have then had to swerve past the children but instead break harshly and the aftermath of the damage that occurred need not have to have happened.

Another factor that is taken into account in regards to breach of duty is whether reasonable care was taken into account by the defendant within the circumstances. This requires the balancing exercise to determine whether the risk of harm to others which the defendant's conduct created was justified. Here the court will look at the factor of if the danger was great, then the defendant should take greater care in order to ensure that the danger does not occur. A case which illustrates this point is the case of Paris v Stepney Borough Council (1951) where the claimant was already blind in one eye, and whilst under a vehicle, rust flew off and fell into the claimant's good eye and which to him being blind completely. The House of Lords held that the defendant was liable for the claimant's blindness because he had not issued safety goggles which would not have cost much to invest in.

Applying the reasonable care factor to Tim, it can be said that Tim did not take reasonable care. Because he was speeding there was a great danger than an accident would occur hence Tim should have taken greater care by slowing down but he didn't which resulted in Tim having to swerve and lose control of the car and the damage of Peter's property and the explosion.

The next element the court will look at is the causation of damage. This is where the claimant must prove that the defendant's negligence caused the loss or damage in question. In this case, Peter must show that it was Tim's negligence that caused the damage to his property. Causation is broken in two parts. The first part is factual causation; this is where the breach of duty caused the damage factually. This is where the 'But For' test is involved. Here the court will ask 'but for the defendant's negligence, would the end result have occurred?' If the answer is 'no', then the defendant is the cause of the damage. This test can be seen in the case of Barnett v Chelsea and Kensington Hospital Management Committee (1969) where it was held that breach of duty did not cause the death because even if the patient was examined and treated for the poisoning, it still would have been too late to save him.

Applying this to Tim, the court will ask 'but for Tim speeding, would he have to have swerved past the children, losing control of the car and crashing into Peter's property?' The answer is 'no' hence Tim factually caused the damaged.

The second part to causation is legal causation where the chain of causation is used. If the defendant can prove that a new intervening act, otherwise known as novus actus interveniens, caused the damage then he is free from the responsibility. There are three types of acts where it will break the chain; the first one is where the claimant intervened. The second type is an act of nature, as illustrated in the case of Carslogie Steamship Co. v Royal Norwegian Government (1952). The third type is an act by a third party as shown in the case of Knightley v Johns (1982)

Applying this to Tim, it is clear that there is no new intervening act hence Tim caused the damage.

The last element of the negligence claim is remoteness of damage. The test for this is whether the damaged caused was reasonably foreseeable. This principle was created in the case of The Wagon Mound (No.1) (1961) where the House of Lords held that it was reasonably foreseeable the some damage would be caused to the wharf from the spillage of oil by the defendant, but it was unforeseeable that the wharf would be damaged by fire since oil needs to be raised to a high temperature before it will ignite on water.

Applying this to our scenario, it can be said that the damage to Peter's fence is reasonably foreseeable however the explosion of the materials were not foreseeable hence it can be possible to say that Tim may only be liable or the damage of the fence but not the damage caused by the explosion.

Taking in account what has been discussed, the advice for Tim is that he is more than likely to be liable for the damages done to Peter.

Now, Sanjev will be taken into account and whether Tim is liable for him.

Tim can argue that he does nit owe Sanjev a duty of care as Sanjev was not a foreseeable claimant as discussed in Bourhill v Young (1943). Tim can also argue on the basis of volenti non fit injuria, this is where a person engages in an event accepting and aware of the risk inherent in that event cannot later complain of or seek compensation for any injury suffered during the event. This Latin phrase is based on the notion of whether the defendant owes duty to the rescuer. However, Tim's defence may not work on the basis that if a rescuer is foreseeable, then duty is owed. in this case, a rescuer is foreseeable because where a car accident has occurred, it is more than likely that a 'passing pedestrian' is going to help. In Wagner v International Railway Co. (1921) Cardozo J stated that "danger invites rescue." Also, in the case of Baker v Hopkins (1959), it was stated by Wilmer LJ:

" Once it is determined that the act of the rescuer was the natural and probable consequence of the defendant's wrongdoing, there is no longer any room for the maxim volenti non fit injuria."

In regards to whether Tim has breached that duty, as mentioned before, the reasonable man test is taken into account and whether Tim took reasonable care. The application of this in regards to Peter is the same for Sanjev also.

Applying the causation of damage to Sanjev, the court will ask 'but for Tim's negligence, would Sanjev have suffered the injuries that he has done?' The answer is 'no'. In regards to legal causation, Tim can argue that there was a new intervening act which was the act by a third party. Tim can argue that the thirds party was Peter, that if the materials were placed in a safer place, then the explosion may not have occurred. However in remoteness of damage, the explosion was an unforeseeable risk.

Due to the explosion and fire, Sanjev 'suffered burns to his face and hands' which has left him 'very depressed and anxious about his appearance.' this can amount to psychiatric in jury in which Tim can be liable for. In the case of Chadwick v BRB (1967) the defendant was liable for the claimant's psychological injury even though the claimant was not related to ay of the victims of the crash. Applying this to Tim, it can be said that Tim may be liable for Sanjev's depression.

In conclusion, Tim may be liable for Sanjev's injuries however Tim does have defences against the liability unlike in Peter, where it is very hard to distinguish a defence.

Bibligraphy

Textbooks

Stapleton, J. Duty of Care Factors: A Selection from the Judicial Menus in Cane, P. and Stapleton, J. (eds.), The Law of Obligations: Essays in Honour of John Fleming (1998) Ch. 4
Lanser, M. and Vanstone, B. (1997) Letts Study Guide: A Level Law. The Bath Press
Deakin, S, Johnston, A. and Markesinis, B. (2008) Markesinis and Deakin's Tort Law. 6th Ed Oxford

Websites

UK Law. Available from:

http://www.leeds.ac.uk/law/hamlyn/donoghue.htm (accessed 16/12/08)

Ilex. Available from:

http://www.ilex.org.uk/pdf/pdf1Unit%205%20-%20Law%20of%20Tort.pdf (accessed 16/12/08)

Sixth Form Law. Available from:

http://sixthformlaw.info/03_dictionary/dict_uz.htm (accessed 16/12/08)

Table Of Cases

Baker v Hopkins (1959) 3 All ER 860

Barnett v Chelsea and Kensington Hospital Management Committee (1969) 1 QB 428

Blyth v Birmingham Waterworks Co. (1856) 11 Ex. 781, 784 (Alderson B)

Bourhill v Young (1943) AC 42

Carslogie Steamship Co. v Royal Norwegian Government (1952) AC 292

Chadwick v BRB (1967) 1 WLR 912

Knightley v Johns (1982) 1 WLR 349

Lochgelly Iron and Coal Co. v. McMullan (1934) AC1, 25

Nettleship v Weston (1971) 3 All ER 581

Paris v Stepney Borough Council (1951) AC 367

The Wagon Mound (No.1) (1961) AC 388

Wagner v International Railway Co. (1921) 133 NE 437

Wells v Cooper (1958) 2 QB 265