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Tort law negligence problem question

The matter at issue include: (i) negligence; and (ii) trespass to the person.

Negligence is a specific tort[1] and it is the failure to exercise that care which any given circumstances demand[2]. The burden of proof in an action for damages for negligence rests primarily on the plaintiff, who, to maintain the action, must show that he was injured by a negligent act or omission for which the defendant is in law responsible[3]. This involves the proof of some duty owed by the defendant to the plaintiff[4], some breach of that duty[5], and an injury to the plaintiff between which and the breach of duty a causal connection must be established[6].

Duty of Care Owed to a Defendant

The defendant must owe a duty of care in relation to the general class within which the plaintiff and the type of damage that has arisen fall before there can be any question of liability to that plaintiff. The existence of a notional duty of care in a particular situation depends on three criteria: (1) foreseeability; (2) proximity; and (3) fairness and reasonableness[7]. Where the loss to the plaintiff is caused by direct physical damage the three criteria will normally be satisfied[8], and in the absence of a general immunity from tortious liability, a duty will be owed. Once a notional duty of a given scope has been accepted, then the question of factual duty arises[9]. A factual duty of care is owed only to those persons who are in the area of objectively[10] foreseeable danger[11].

The Standard of Care Owed to a Defendant

The law lays down the general rules which determine the standard of care which has to be attained, and it is for the court to apply that legal standard of care to the facts of a particular case and decide whether the defendant has attained that standard[12]. The legal standard is objective: that which might be expected from a person of ordinary care and skill[13], engaged in the type of activity[14]6 in which the defendant was engaged. Where the defendant's conduct has occurred in the course of responding to an emergency and it was reasonable in the circumstances, there will be no negligence even though the choice turns out to have been the wrong one11. However, a professional is required to meet the standard of the ordinary skilled man exercising and professing to have the special skill in question[15]. An error of judgment will not amount to negligence unless it is one that would not have been made by a reasonably competent professional with the standard and type of skill of the defendant, acting with ordinary care[16]. Furthermore, the Occupiers' Liability Act 1957 imposes a duty on occupiers to take such care as is reasonable in all the circumstances of the case to see that a visitor, whom the occupier invited or permitted to enter or use his premises, will be reasonably safe in using the premises for the purposes for which the occupier invited or permitted the visitor[17].

Causation

In addition, it is prima facie both necessary and sufficient for the plaintiff to prove that the defendant's wrongdoing was a cause, although not necessarily the sole or dominant cause, of his injuries[18]. In general, a defendant who commits a wrong takes his victim as he finds him[19]. Causation is often dealt with in two stages. The first stage of the inquiry is primarily factual and referred to as 'but for' causation, and the test is whether the loss or injury would have occurred 'but for' the act or omission of the defendant. If the injury would have occurred despite that act or omission, then the defendant would not be liable[20]. If in the case of two successive torts the second tort does not eliminate the loss caused by the first, the first tortfeasor remains fully liable and the second tortfeasor will be liable for any exacerbation of the loss caused by the first[21]. If the evidence is that the negligence of the defendant has deprived the plaintiff of a less than 50 per cent chance of recovery from injury, then the plaintiff will not recover damages since there is failure, on a balance of probabilities, to show that loss has been caused to him.

Damages

Damages may be awarded for pecuniary loss including future pecuniary loss, such as loss of profits or earnings, although a deduction may be made for benefits received.[22] When calculating plaintiff's future loss of earnings, the courts take the plaintiff's net annual loss of earnings[23] as the starting point. Where the plaintiff argues that, but for the accident, he would have obtained alternative employment, whether following a period of training or otherwise, the court must assess the loss of that chance and award a percentage of the lost salary[24]. A person injured by another's wrong is entitled to general damages for non-pecuniary loss, such as pain and suffering and loss of amenity and enjoyment of life[25].

Recovery for economic loss has not generally been allowed however foreseeable it may have been because pure economic loss refers to financial loss suffered by a plaintiff that does not flow from any damage to his own person or property[26].

Defence

A spectator of a lawful sport or entertainment can recover in respect of injury resulting from the negligent act of one of the players or the omission by the promoters to guard against accidents which are foreseeable and not inherent in the sport or entertainment, unless it can be shown that he agreed to take the risk of being injured by such negligence[27].

Mr Odale’s (O) Claim

Considering the facts of the case it seems that D Brack owed a duty to Mr O because was injured by structurally weak dugouts, and he was a visitor of D Brack. Therefore, D Brack had a duty to ensure that the wooden dugouts were structurally safe before the game. Since the dugouts were installed in 1966, a reasonable person in its position would check whether they were structurally sound before the match. Thus, D Brack was in breach of its duty. Since Mr O’s injuries were directly caused by D Brack’s breach he would be able to recover damages for pecuniary and non-pecuniary losses and he would be able to recover the loss of income for four weeks.

Furthermore, the ambulance and the doctor owed a duty of care to Mr O because the injuries, namely, bruises due to the accident and reaction to anesthetic, were because he was in the ambulance and he was terated by the doctor. Since the ambulance driver and the doctor were professionals they owed a duty expected from an ordinary skilled man who possessed those skills in an emergency circumstance. From the facts the driver of the ambulance does not seem to have been negligent. However, if Mr O can prove that a reasonable doctor in those circumstances would not have administered that anesthetic, then the doctor would be in breach of his duty. Since the allergic reaction from the anesthetic directly caused further injury to Mr O, he would be able to recover the damages for pain and suffering and loss of income for the extra-four weeks. Mr O may also be able to recover these damages from D Brack because the injury caused by the doctor would not have eliminated the loss caused by the initial injury.

In conclusion, Mr O would be able very likely to claim damages for negligence from D Brack and maybe from the doctor.

Nadeem’s (N) Claim

It is foreseeable that the ball could injure N if it hit a person and it would be fair and reasonable to impose a liability on the organisers to ensure that such injuries to not take place. Since N was a visitor at the D Brack’s stadium, D Brack had a duty to ensure that reasonable precautions were taken to prevent such injuries. The fact that N suffered from brittle bone would not exculpate D Brack form his liability because it was a pre-existing condition. Since the facts do not demonstrate any negligence on the part of Canavan it is unlikely for N to succeed against him. However, N could succeed against D Brack because the facts seem to suggest that D Brack failed to set up barriers that could protect the supporters from situations when the ball goes past the goal post.

Substitute players claims

D Brack would owe a duty to them because it was the owner of Big B. Thus, B Brack had a reasonable duty to make sure that it was safe. By not checking it he breached his duties and thus he would be liable to these players for damages for pain and suffering.

Sutton’s (S) Claim

Khan (K) owed a notional duty of care to S because there was direct physical damage to Sutton. K owed a duty to take reasonable care when driving to all pedestrians and thus he owed a duty to S. Since K was careless when reversing he was in breach of his duty and thus liable to S. Since K directly caused S’s injury he would be liable to pay damages. S would be able to recover damages for pain and suffering and loss of income. S’s loss of income would take into consideration his chance of getting a contract for £1 million with Chelsea because it is quite likely that this injury prevented him from playing at Chelsea on a balance of probability.

However he would not be able to recover for the arthritis because there is a less then 50% chance that this injury caused it.

Thus, it sees that S would be able to recover substantial damages.

O’s Claim for economic loss

It is quite unlikely that O would be able to recover the loss of £1 million during the season because it was a pure economic loss that arose from his relationship to Sutton. Thus, K would not be liable for it.

(ii) Trespass to the person is a wrong committed against the personal security or personal liberty of one person by another and it includes battery. A battery is an act of the defendant which directly and either intentionally or negligently causes some physical contact with the person of the claimant without his consent[28].

Sara could bring and action for battery because she was tackled by the police in the football pitch. However, it is unlikely to succeed because the police only acted in to prevent the escalation of further violence in the game.

Bibliography

Legislation

The Occupiers' Liability Act 1957

Cases

Baker v Willoughby [1970] AC 467, HL.

Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 at 121.

Bonnington Castings v Wardlaw [1956] AC 613, HL

Caparo Industries plc v Dickman [1990] 2 AC 605, HL.

Cummings (or McWilliams) v Sir William Arrol & Co Ltd [1962] 1 All ER 623, HL.

Doyle v Wallace (1998) Times, 22 July, CA.

Gautret v Egerton (1867) LR 2 CP 371.

Glasgow Corpn v Muir [1943] AC 448, HL.

Grant v Australian Knitting Mills Ltd [1936] AC 85, PC.

Hammack v White (1862) 11 CBNS 588.

Harris v Hall (1992) Independent, 18 August, CA.

Hay (or Bourhill) v Young [1943] AC 92 at 106-111, HL.

Heaven v Pender (1883) 11 QBD 503 at 507, CA.

Hyman and Williams v Schering Chemicals Ltd (1980) Times, 10 June, CA.

Kent v British Railways Board [1995] PIQR Q42, CA

Minories Finance Ltd v Arthur Young (a firm) (Bank of England, third party) [1989] 2 All ER 105.

McNaughton Papers Group Ltd v Hicks Anderson & Co [1991] 2 QB 113, CA.

Performance Cars Ltd v Abraham [1962] 1 QB 33, CA.

Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743, HL.

Reid v Mitchell (1885) 22 Sc LR 748.

Robinson v Post Office [1974] 2 All ER 737, CA.

Smith v Leech Brain & Co Ltd [1962] 2 QB 405.

Sutherland Shire Council v Heyman (1985) 60 ALR 1, Aust HC.

The Carlgarth [1927] P 93, CA.

Vaughan v Taff Vale Rly Co (1860) 5 H & N 679.

Welsh v Canterbury and Paragon Ltd (1894) 10 TLR 478.

Whitehouse v Jordan [1981] 1 All ER 267, HL.

Wilsher v Essex Area Health Authority [1987] QB 730 at 750-751, HL.

1


Footnotes

[1] Grant v Australian Knitting Mills Ltd [1936] AC 85 at 103, PC.

[2] Vaughan v Taff Vale Rly Co (1860) 5 H & N 679 at 688.

[3] Hammack v White (1862) 11 CBNS 588.

[4] Heaven v Pender (1883) 11 QBD 503 at 507, CA.

[5] See Gautret v Egerton (1867) LR 2 CP 371 at 374.

[6] See Robinson v Post Office [1974] 2 All ER 737, CA.

[7] See Caparo Industries plc v Dickman [1990] 2 AC 605 at 617-618, HL.

[8] See Murphy v Brentwood District Council [1991] 1 AC 398 at 486-487, HL.

[9] See Hay (or Bourhill) v Young [1943] AC 92 at 106-111, HL.

[10] See Glasgow Corpn v Muir [1943] AC 448 at 457, HL.

[11] See Hay (or Bourhill) v Young supra note 12.

[12] Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743, HL.

[13] Heaven v Pender supra note 4 at 509, CA.

[14] See Wilsher v Essex Area Health Authority [1987] QB 730 at 750-751, HL.

[15] Bolam v Friern Hospital Management Committee [1957] 2 All ER 118 at 121.

[16] Whitehouse v Jordan [1981] 1 All ER 267, HL.

[17] Occupiers' Liability Act 1957 s 2(2).

[18] See Hyman and Williams v Schering Chemicals Ltd (1980) Times, 10 June, CA.

[19] See Smith v Leech Brain & Co Ltd [1962] 2 QB 405.

[20] See Cummings (or McWilliams) v Sir William Arrol & Co Ltd [1962] 1 All ER 623, HL.

[21] See Baker v Willoughby [1970] AC 467, HL.

[22] Halsbury’s Laws of England, Negligence, damages para 684 (LexisNexis)

[23] See Kent v British Railways Board [1995] PIQR Q42, CA.

[24] See Doyle v Wallace (1998) Times, 22 July, CA.

[25] Halsbury’s Laws of England, Damages, non-pecuniary loss para 883 (LexisNexis).

[26] See eg Harris v Hall (1992) Independent, 18 August, CA.

[27] Welsh v Canterbury and Paragon Ltd (1894) 10 TLR 478.

[28] R v Richardson [1999] QB 444, [1998] 3 WLR 1292, CA.


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