Negligence may be defined as ‘the breach of a legal duty to take care that results in damage undesired by the defendant to the claimant’. Negligence is an independent tort, which was established by Donoghue v Stevenson. Following Donoghue v Stevenson there was little development of the duty concept until it was suggested in Dorset Yacht v Home Office that a duty should exist whenever damage was foreseeable. The test for duty of care is described by Lord Bridge in Caparo Industries plc v Dickman as (a) Some damage was foreseeable to a foreseeable claimant; (b) there is a sufficiently close relationship between the parties to establish a duty in that class of case (proximity); and (c) that it is just and reasonable to impose a duty.
It must be shown that not only was the defendant under a duty towards the claimant to be careful, but also that he failed to achieve the required standard of care and that failure caused the damage, and finally that the damage was not too remote a consequence of the act. It must be shown that a defendant stood in the required relationship to the claimant such that he came under an obligation to use care towards him. This relationship is sometimes referred to as ‘proximity’.
In deciding whether there has been a breach, the reasonable man test, can be applied as seen in the Blyth v Birmingham waterworks co (1856).
Contributory negligence is when an injured plaintiff may have contributed to his or her injury by being negligent of the obvious and known conditions. The attempt to recover damages may reduce the amount of the award. Rahim owed a duty of care to himself and everyone on the circuit. He breached the duty of care to himself when he decided by wearing an old, slightly damaged and improperly fitting helmet from another driver. If he had worn his own helmet then maybe he would have afforded to protect his head injuries. He should have foreseen that he is putting his safety at risk. Under Law Reform Contributory Negligence Act 1945, s 1 he has contributed towards his own injuries and due to this his damages will be reduced Jones v Livox Quarries, the plaintiff was riding on the back of the defendants’ vehicle when another vehicle of the defendants was negligently driven into the back of the first vehicle. As a result, the plaintiff was injured. By so riding, the plaintiff exposed himself not only to the risk of falling off the vehicle but also to the risk of being injured in the particular way in which he was injured. The court therefore found that he was contributory negligent.
Vicarious liability is when one person is liable for the negligent actions of another person, even though the first person was not directly responsible for the injury. An employer sometimes can be vicariously liable for the acts of a worker. Conway Racing also owed a duty of care to Rahim and other car users on the track as demonstrated in Wheat v Lacon 1 All ER 582, the Occupiers Liability Act 1957 s.2(1). MSA and FIA recommended improvements. If Conway Racing have taken the reasonable steps and implemented the necessary improvements recommended then they are not liable. In Elisabeth Ruth Wattleworth(widow & administrarix of the Estate of Simon Wattleworth, Deceased) v (1) Goodwood Road Racing Company LTD (2) Royal Automobile Club Motor Sports Association LTD (3) federation Internationale De L’ Automobile an experience amateur racing driver was owed a duty of care both by the motor racing venue where he crashed and died, and by the sport’s national licensing body, but neither had been in breach of that duty as they had taken the reasonable steps.
In Bolton v Stone, a cricket ball, which had been hit out of the ground, hit plaintiff; the defendants were members of the club committee. The claimant’s appeal failed to establish that the defendants had not taken due and reasonable care so was not negligence.
However if they have not implemented the improvements recommended and not taken the reasonable steps then they have breached their duty of care to all track users. Andrew Guy Glenie v (1) Reginald Slack (2) Ian Barclay (1998) The fence was a complete obstruction, sidecars in this sort of event were not fitted with brakes and the fence gave rise to a clearly foreseeable risk of injury. The racetrack ought not to have been constructed.
David Smith owed a duty of care to Rahim. He fitted old and reused tyres. David Smith should have done the reasonable checks before allowing the car to go onto the track, Phillips v Whiteley. David as a chief mechanic must have foreseen that reused tyres could place Rahim and other drivers at risk. He failed to do his best therefore he breached his duty, in contrast Nettleship v Weston where a driving instructor took action for damages against a inexperienced leaner driver. The claim was dismissed.
Rahim consented to a risk of injury each time he took part in a racing event. There is a potential danger his driving or worn tyres could have caused the accident.
It could be debatable that the “but-for” test is most accepted test of factual causation leaving Rahim’s incident would not of happened. As Lord Denning said: “If the damage would not have happened but for the particular fault then that fault is the cause of the damage and if it would have happened just the same fault or no fault, the fault is not the cause of the damage. In multiple factorial situations it’s not very helpful to use the test. Barnett v Chelsea and Kensington Hospital Management Committee  1 QB 4282. Therefore, if the tyres were new the accident still may have occurred due to his driving error hence either way he is at risk. In Malcolm William Green v Sunset & Vine Productions LTD (2) British Automobile Racing Club LTD Goodwood Road Racing Co LTD claimant stated he had been racing in a perfectly proper manner. Goodwood Racing stated that the accident did not occur due to them placing a kerb camera but was caused due to fast racing around the corner and losing control. His own negligence contributed towards the accident. Rahim contributes to a risk each time he drives; there is always a high risk as in McGhee v National Coal Board claimants used to cycle home after working in their brick kilns and were exposed to brick dust. The defendants provided no washing facilities. After a short time claimant started suffering from dermatitis. The court held that there was a breach of duty. The case was significant as it meant that a plaintiff need not demonstrate that the defendant’s actions were the but for cause of the injury, but instead that the defendant’s actions materially increased the risk of injury, and thus damage, to the plaintiff.
A secondary victim is someone whose personal safety is not threatened, but who suffers psychiatric injury as a result of either fear for the safety of others or the trauma of witnessing a harrowing event.
A secondary victim must satisfy three requirements. First, they must have close ties of love and affection with the individual who suffers injury or death in an accident attributable to negligence. In Alcock one claimant had witnessed the accident in which his two brothers were killed. His claim failed because he produced no evidence of a close tie of love and affection with his brothers. However, in a succeeding action, McCarthy v Chief Constable of South Yorkshire Police, a claimant whose half-brother had died at Hillsborough successfully claimed damages for the psychiatric illness, which he suffered. He provided evidence from relatives and friends that his family was very close, and the two half-brothers particularly so.
Second, they must have been present at the accident or on the scene in its immediate aftermath. The claimant must be close to the mishap both in terms of space and time. The accident includes not only the scene of the event which causes the death or injury, but also its “immediate aftermath”. This extension was established in McLoughlin v O’Brian. She was held to have established sufficient proximity to the events, which made up the accident. Thirdly, the psychiatric injury must have been caused by direct awareness of the accident or its immediate aftermath and not upon receiving it second-hand.
All three requirements must be met , to take examples from the Hillsborough incident, some claimants were close relatives of victims and had watched the disaster unfolding on television failed because, although they met condition one, they could not satisfy conditions two and three. Other claimants who were at the game, hence meeting conditions two and three, failed because they did not have a sufficiently close relationship with any of the victims and therefore failed to meet condition one.
In contrast, Leyla is a primary victim, case of Page v Smith Lord Lloyd referred primary victims as being those who were “directly involved in the accident and well within the range of foreseeable physical injury”.
Leyla did not have a close relationship with Rahim however she could foresee ably have been physically injured as a result of Rahim’s negligence as in Dulieu v White & Sons. The plaintiff was entitled to recover, as the shock was due to fear for her own personal safety. In McFarlane v EE Caledonia Ltd, (1994) Stuart-Smith LJ stated a plaintiff might recover damages for psychiatric illness in three situations (a) where plaintiff is in the actual area of danger created by the event, but escapes physical injury by chance or good fortune (b) where the plaintiff is not actually in danger, but because of the sudden or unexpected nature of events, reasonably believes that he or she is and (c) relates to rescuers. Leyla falls under category a. As Leyla is a primary victim she will be able to claim damages. She will need to establish expert medical evidence to show she has suffered from psychiatric illness.
Trespass to land takes place where an individual directly enters onto another person’s land without permission, or remains on the land, or places or projects any object upon the land. In Ellis v Loftus Iron Co, the court stated that ‘‘if the defendant places a part of his foot on the claimant’s land unlawfully, it is in law as much as trespass as if he had walked half a mile on it”. Conway Racing whose land is entered upon may sue even if no actual harm is done. This rule may also apply to entry upon public land having restricted access. A court may order payment of damages or an injunction.
Trespass to goods includes touching, moving or carrying them away, its intentional direct interference with personal property belonging to another person. Neave v Neave. Aisha and Julia took debris from the racetrack but actually they were not allowed to be there the day after the race and were not allowed to take anything from the track. The court may award damages to Conway Racing and also ask Aisha and Julia to return what they had intentionally picked from the track.
Carol Harlow, 2005,Understanding Tort Law, 3rd Edition, London, Thomson Sweet & Maxwell
Geoffrey Samuel, 2008, Tort Cases and Materials, 2nd Edition, London, Thomson Sweet & Maxwell
John Cooke, 2007, Law of Tort, 8th Edition, Great Britain, Pearson Education
Steve Hedley, 2008, Tort, 6th Edition, Oxford, Oxford University Press
Vera Bermingham, 2005, Tort in A Nutshell, 7th Edition, London, Thomson Sweet & Maxwell
Vivienne Harpwood, 2005, Modern Tort law, 6th Edition, United States, Cavendish Publishing
http://www.publications.parliament.uk/pa/ld199899/ldjudgmt/jd981203/white02.htm Saturday 5 December 2009
http://www.lawcom.gov.uk/docs/lc249(1).pdf, Saturday 5 December 2009
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