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Published: Fri, 02 Feb 2018
Principal requirements of the tort of negligence
The principle requirements of the tort of negligence are that the defendant should owe the claimant a duty of care, that there should be a breach of that duty and that breach of duty should cause actionable damage to the claimant which is not too remote. The general criteria for duty of care were established in Donnoghue v Stevenson  AC 562, Lord Atkins neighbourly principle included ‘persons who are so closely and directly affected by my act that I ought to have them in my contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question’. The facts in the question involve damages caused by a motor accident. It is established in law that a road user owes a duty of care to other road users and their passengers. The standard of care should be judged against the standard of a reasonable qualified driver, as in Nettleship v Weston  2 QB 691.
So the first problem facing Ben is that of identifying whom to sue in respect of the injuries sustained in the motorcycle crash. There are two possible causes; there is evidence of negligence on the part of Charlie who had failed in being fit to drive a lorry and had crashed and blocked the road, and also on the part of Alex who was travelling in excess of the speed limit. The relevant law that could be applied is found in Rouse v Squires  ALL ER 903 Cairns LJ said ‘If a driver so negligently manages his vehicle as to cause it to obstruct the highway and constitute a danger to other road users, including those who are driving too fast or not keeping a proper lookout, but not those who deliberately or recklessly drive into the obstruction, then the first driver’s negligence may be held to have contributed to the causation of an accident of which the immediate cause was the negligent driving of the vehicle which because of the presence of the obstruction collides with it or with some other vehicle or some other person.’ In applying that to the facts if it is decided that Alex’s speeding was merely negligent then both he and Charlie would be liable for the injuries suffered by Ben. If however, Tom’s driving was reckless and apparently he was riding well over the speed limit, and was unable to avoid crashing into the lorry then Alex’s act may constitute a novus actus interveniens rendering him solely liable for the injuries suffered to Ben, by breaking the chain of causation. However in Wright v Lodge 1993] 3 ALL ER 299 where a car driver had broken down on the dual carriageway was then hit by a speeding lorry injuring a passenger in the car, the car driver was held to be negligent in not pushing the car out of the way. He was considered a co-defendant and was ordered to pay 10% of the damages even though the driver of the lorry was found to be reckless (Lunney. M, pp266).
Failure to wear a helmet is a well-established example of contributory negligence, a defence that Alex may use against Ben in regards to the awarding of damages whether he is sole or co-defendant. It is seen as a failure by Ben not to take reasonable care for his own safety as per Frome v Butcher  QB 286 in which case the failure to wear a seatbelt is very likely to materially increase the risk of injury should there be a traffic accident in which case it will be regarded as causally relevant to the harm suffered by the claimant. In Capps v Miller  2 ALL ER 333 the Court of Appeal adopted the same tariff as in Frome v Butcher, which held that if wearing a seatbelt would have prevented altogether the damage suffered, a reduction of 25% would be appropriate . If the injury would have been less severe reduction should be 15%, but if the injury would have been the same whether a helmet was worn or not, there should be no reduction at all. Applying the tariff to the current facts it would appear that injuries suffered as a result of the crash were to Ben’s leg, not his head and so had he been wearing a helmet it would not have made any difference to his injuries. Therefore it is unlikely that Alex would succeed in his claim for contributory negligence.
The co-defendants may also try to argue that the subsequent deterioration of his injuries, after he was recovering in hospital were too remote and not as a natural direct consequence of their negligence. The key question for the courts becomes, which of the losses may be treated, in law, as having been caused by the original accident? In respect of Ben’s susceptibility to infection resulted from bacteria inherent in the environment and subsequent leg amputation, we are not sure it was caused by the accident, or by natural causes or of the two, but by the evidence it does not appear to be caused by negligence of the hospital. If it can be proved to be attributable to natural causes only then it will be regarded as a vicissitude of life which would take over from the first cause, for which the defendant(s) will not be held responsible as was the case in Jobling v Associated Dairies  AC 794. If on the other hand Ben can prove that the defendant(s) could reasonably foresee the type of injury as a consequence of the accident, the fact that this then caused greater injury to the claimant than might have been foreseeable is irrelevant. This is a similar case to Smith v Leech Brain & Co  2 QB 405 where the claimant suffered a burn on the lip because of the defendants negligence, which turned cancerous due to a pre-malignant condition, from which he died. It was held that the tortfeasor ‘takes his victim as he finds him’. Liability may even be allocated even if the accident made a ‘material contribution’ to the chance of infection on his leg so long as the loss he suffered thereafter was attributable to his knee condition (McGhee v NCB  1 WLR 1).
It would be expected that Ben would make a strong claim under general damages, to put him in the same position as he would have been in had he not sustained the tort. He is likely to receive one lump sum as he is fully recovered. In respect of pecuniary loss, there is no loss of earnings as Ben is retired, and the accident is unlikely to affect any pension, so would be based on the £10,000 that he has already spent adapting his home to accommodate his wheelchair.
In addition, an award of damages may also cover less easily quantifiable losses such as pain and suffering and loss of amenity. Provided it can be assumed that the claimant has endured pain, an award of damages for pain and suffering may be made unless the claimant is and will remain permanently unconscious, as per Wise v Kaye  1 QB 639. Here there is nothing to suggest that this was the case as he is fully recovered. Ben is unable to pursue his pastime of golf and hill-walking, which despite his 60 years puts him in a category of someone who was very active prior to the accident. This may be a factor which reflects in the award of damages. Thus if the claimant loses the joy of life and cannot hit a ball around or walk up a hill, he is entitled to damages representing his loss of enjoyment of life West v Shephard  AC 326.
Alex’s potential claim for his injuries, loss of earnings and damage to his motorcycle would need to rely on proving the negligence of Charlie, as discussed earlier. He would need to succeed in proving that as a road user Charlie owed a duty of care, and that Charlie was in breach, by blocking the road and as a result this materially contributed to the crash. Alex would hope to claim under pecuniary damages for a replacement motorcycle of same value as the one he was riding before it was damaged beyond repair. He would also be seeking to claim for the loss of two weeks unpaid leave off work. Like Ben, he would also make a claim for pain and suffering, for several broken ribs.
Charlie may use as his defence that the intervening act of the claimant was so unreasonable in all the circumstances that it broke the chain of causation McKew v Holland & Hannen & Cubbitts (Scotland) Ltd  3 ALL ER 1621. It is more likely that the courts would find that the damages stem from the blameworthiness of both parties as joint-tortfeasor under the head of contributory negligence. It is not necessary for Alex to have had a duty of care to Charlie, as per Lord Denning ‘contributory negligence requires the forseeability of harm to oneself’. S.1 of the Law Reform Contributory Negligence Act 1945 states ‘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.’ The other factor the courts will consider is the extent to which the Claimants carelessness has caused or contributed to the loss suffered. On this basis the courts calculate a percentage figure for which the claimant was responsible and deduct this from the total possible damages.
Based on the possibility that Alex may find Charlie negligent, with the defence of Contributory negligence against him, he may receive a percentage of the possible compensation that could have been awarded in the circumstances.
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