Tort Practise Questions

Page 1

2015 Paper

Alisha, a prison officer from Wessex Prison, was driving prisoners to court in a prison van one cold January morning. She was speeding, lost control of the van and crashed into a tree. The back doors of the prison van burst open. Bill, one of the prisoners, was thrown out of the back doors of the prison van and broke his leg. Bill suffered from brittle bone disease and a normal person would merely have suffered bruising. The petrol tank was also damaged and petrol leaked out.

Cyd, another prisoner, jumped out the back of the prison van ans ran off. He reached Don's house which was 200 metres from the accident. He smashed a window of the house, climbed in and stole a jar of money which Don kept in the kitchen cupboard.

Emma, a 15 year old school girl, was walking past the scene of the accident on her way to school. She was smoking a cigarette and threw the cigarette end away. This caused the leaking petrol to explode and Fred another prisoner in the prison van was badly burned.

A fire engine from Wessex Fire Brigade arrived at the accident. Gail, a fire officer, was pulling Fred from the prison van but she dropped him and Fred broke his arm.

Advise Bill, Don, and Fred of the claims they may make, if any, in negligence.

Bill v Alisha

Duty of care: Caparo test.

Foreseeability: Is it foreseeable that if Alisha drives too fast she would crash? (Bourhill v Young 1942)

Proximity: (Physical proximity) both in the van; also relationship as prison officer/prisoner (Osman v Ferguson 1993) relationship family and police.

Fair, just and reasonableness: insurance, (Smith v MOD 2013) land rovers

Breach of Duty: test of reasonable man; but here a skill Bolam test; (Nettleship v Weston 1971) standard of a competent driver - would a competent driver speed in icy conditions ?

Other factors: likelihood of harm - risk of serious harm, cost of avoiding harm etc.

Causation: (factual) but for test - would Bill have been injured but for Alisha's actions?

Eggshell skull rule: if C has a sensitivity the D is fully liable even though the injuries are not foreseeable. (Smith v Leech Brain 1961) (burn on lip)

Application: Alisha likely to be liable to Bill in negligence.

Don v Alisha

Duty of care: Does Alisha owe a duty of care to Don?

Foreseeability: is it foreseeability that if Alisha crashes a prisoner will escape and steal ?

Proximity: consider the distance to Don's house, it may be foreseeable; (Bourhill v Young 1942)

Fair, just and reasonable: insurance.

Breach of duty: allowing Cyd, to escape; Bolam test.

Causation: factual: did the breach cause the harm to Don?

Legal causation: remoteness - (The Wagon Mound 1961)

Action of a third party: - Cyd: not liable for acts of a third party. But in (Home Office v Dorset Yacht Co 1970) - Home Office responsible for boys.

Application: can argue Alisha is liable.

Fred v Alisha

Duty of care: Does Alisha owe a duty to Fred?

Foreseeability: Is it foreseeable that a prisoner could be injured or burned? (Pearson v Lightning 1998) Is it foreseeable that someone could drop a cigarette end and cause a fire ?

Proximity: (physical closeness) - both in prison van; relationship.

Fair, just and reasonable: Alisha should have insurance.

Breach of duty: Bolam test; competent driver.

Causation: factual causation: but for test, (Chelsea v Barnett Hospital 1969)

Legal causation: test for remoteness - (The Wagon Mound 1961)

Act of third party: general rule not liable

Fred v Emma

Duty of care: Does Emma owe a duty to Fred?

Is she in breach ? (Mullin v Richards 1998)

NIA: Consider if Emma's act is a new intervening act; (Knightley v Johns 1982)

Application: Alisha may be liable; Emma less likely to be liable; could argue either way

Page 2

2012 Paper

Jane, Kim and Lucy are

all students at the University of Northampton and all play hockey for the

University team. In December, Lucy, who had recently passed her driving test,

was driving them to a hockey match. It had been raining heavily and the roads

were partially flooded. She was driving along a remote country road at speed

and as a result her car skidded off the road into a ditch. The force of the

impact broke Jane’s arm. Kim was cut by flying glass and she was trapped in the

car. Lucy was not hurt in the accident and she called the emergency services on

her mobile phone.

An ambulance from

Kingsthorpe NHS Hospital arrived and Jane was taken to the hospital. Dr Nafeesa

examined Jane and told her that she needed a metal pin inserted in her arm to

mend the bone. Dr Nafeesa did not tell her that there was a 3% risk that the

bone would not heal properly using a pin.

Dr Nafeesa carried out

the operation without negligence but the bone did not heal properly. As a

result Jane cannot use her arm fully.

After Jane had been

taken to hospital Oli, who was walking down the road, came to the scene of the

accident. He climbed into the wreckage of the car to help Kim but in doing so

cut himself on a sharp piece of metal.

Meanwhile Kim was

still trapped in the car. Kingsthorpe Fire Brigade had been very busy with

emergency calls in the bad weather and did not reach the accident until 40

minutes after Lucy’s phone call. The

normal response time was 10 minutes. Kim was cut free from the car but she was

suffering from exposure to the cold as a result of the delay. Kim was taken to

hospital by ambulance and was treated for her cuts but she was kept in hospital

for several weeks to recover from the exposure.

A few days after

leaving hospital Kim decided to go for a run but after a short distance she

collapsed and hit her head on the ground and suffered a severe head injury.

Advise Jane, Kim and

Oli of the claims they may make, if any, in negligence.

Jane v Lucy

Duty of Care: Does Lucy owe a duty of care to Jane? Caparo test (Donoghue v Stevenson 1932)

Foreseeability: was it foreseeable that if Lucy speed and got into an accident, that someone would get hurt? (Pearson v Lightning 1998)

Proximity: (Physical proximity) - both in the car (Osman v United Kingdom 1998)

Fair, just, reasonableness: insurance (Mulcahy v Ministry 1996)

Breach of Duty: Bolam test: competent driver - would a competent driver speed in heavy rain - new driver (Nettleship v Weston 1971)

Causation: (factual) But For test - would Jane have been injured but for Lucy's actions ?

Other Factors: likelihood of harm, risk of serious harm, cost of avoiding harm

Eggshell skull rule: must take your victim as you find them - (Smith v Leech Brain 1961) - type of injury reasonably foreseeable (Robinson v Post Office 1974)

Application: Lucy likely to be liable to Jane in negligence.

Jane v Dr Nafeesa

Duty of Care: Does Dr Nafeesa owe a duty to Jane ? Caparo test assumed a duty of care once Jane was examined/taken to hospital

Foreseeability: was it reasonably foreseeable that the bone would not heal properly - yes but only 3% risk (Hotson v East Berks 1987)

Proximity: Physical proximity - both in operating theatre

Fair, just, reasonableness: contractual relationship - relationship imposed by job.

Breach of Duty: not negligent

Causation: (factual) but for test - would Jane have been injured but for Lucy's actions ? Liable for all further damage

Action of Third Party: Dr Nafeesa did not worsen Jane's condition

Application: Not liable in negligence, fulfilled his duty

Kim v Lucy

Duty of Care: Does Lucy owe Kim a duty of care ? Caparo test

Foreseeability: was it foreseeable that if Lucy got into an accident, someone would be called for help ? (Haynes v Harwood 1935)

Proximity: (Physical proximity) - both in the car (Osman v United Kingdom 1998)

Fair, just, reasonableness: should have insurance

Breach of Duty: competent driver - Bolam test (Nettleship v Weston 1971)

Causation: (factual) but for test

Legal Causation: test for remoteness (The Wagon Mound 1961) Would reasonable man foreseen risk ? (Hughes v Lord Advocate 1963)

New Intervening Act: Kim going for run - type of injury foreseeable - only need to foresee personal injury (Smith v Leech Brain 1961)

Egg Skull Rule: take victim as you find them - (Robinson v Post Office 1974)

Application: liable; negligent

Oil v Lucy

Duty of Care: Does Lucy owe Oil a duty of care ? (Chadwick v British Railway Board 1967)

Foreseeability: Was it foreseeable that if Lucy got into an accident, someone would come to help ? (Haynes v Harwood 1935) (Cutler v United Dairies 1933)

Proximity: Was there a relationship ? Was Oil within the area of foreseeable risk (Bourhill v Young 1942)

Fair, just, reasonableness: insurance

Breach of Duty: negligent

Causation: (factual) but for test

Action of Third Party: general rule - not liable (Palmer v Tees Health Authority 1999) (Haynes v Harwood 1935) Reasonable person ? (Scott v Shepard 1773)

New Intervening Act: Was oil action a NIA ? Was it reasonably foreseeable ? (Knightley v Johns and others 1982)

Application: likely to be liable

Kim v Kingthorpe Fire Brigade

Duty of Care: Is a duty of care owed? Duty established when call answered (Kent v Griffiths 2000)

Foreseeability: was it foreseeable delay could worsen Kim's condition ? (Yuen Kun Yeu v Attorney General of Hong Kong 1987)

Proximity: no relationship - didn't know Kim, Lucy called

Fair, just, reasonableness: Statutory duty (Home Office v Dorset Yacht Co 1970)

Breach of Duty: Delay was a breach of duty ( Kent v Griffiths 2000)

Causation: (Factual) but for test

Action of Third Party: Not liable for actions of Lucy (Micheal v Chief Constable of S Wales Police 2015) But did delay worsen Kim's condition ?

New Intervening Act: test of fairness - (Spencer v Wincanton 2009)

Application: argue either way

Page 3

2015 Paper

The underlying issue presented is whether any of the claimants can make a claim in Negligence. Negligence as a tort is a breach of legal duty, resulting in damage of the claimant caused by the defendant. In order to establish a negative claim, the claimant must be able to prove that the defendant owed a duty, there was a breach and as a result caused damage to the claimant.

Donoghue v Stevenson 1932 put forward the idea of the 'neighbour principle', stating that reasonable steps must be taken to avoid acts and omissions likely to cause harm to your neighbour. This was later developed in Caparo v Dickman 1990, which proposed three stages to determine a duty of care; foreseeability, proximity and fair, just and reasonable. The question that this then brings into perspective is whether Alisha owed a duty to Bill. When taking foreseeability into account; is it foreseeable that if Alisha drives too fast, she would crash. When applying the test of a reasonable man (Nettleship v Weston 1971) it is expected that a reasonable driver would not speed in icy conditions, and is therefore foreseeable that if she was to get into an accident she would cause injury. However in accordance to Yuen Kun Yeu v Attorney General of Hong Kong, it is suggested that foreseeability alone is too wide and not enough to establish a duty of care. It can be said that not only is there a statutory duty between Bill and Alisha; prison officer and prisoner, but there is physical proximity as both were in the van and were known to each other. This is supported in the case of Osman v Ferguson 1993, as there was considered to be a relationship as the family was known to the police. As Alisha satisfies the the test for foreseeability and proximity, is it then fair just and reasonable to establish a duty of care. Keeping in view the case of Smith v MOD 2013, Alisha ought to have insurance, as it is her responsibility to take steps to avoid, lessen acts and omissions. Another question to consider is whether Alisha caused damage to Bill as a result of a breach of her duty, in order to answer this, the but for test may be applied. But for Alisha's actions would Bill have suffered a broken leg. Alisha may not used Bill's weakness in her defence, that he suffers from brittle bone disease, as the Eggskull Rule clearly states that a defendant must take their victim as they find them, and had it not been for Alisha crashing the van, Bill would have not broken his leg, despite the fact he suffered more than the average person. Like in Smith v Leech Brain 1961, though C only suffered a burn to the lip, D was liable for all the damage C suffered. In application Alisha is likely to be liable as injury to Bill was foreseeable though the extent he suffered may not have been. Alisha merely had to foresee that Bill would suffer harm.

Don can also make a claim against Alisha, saying there is a breach of duty in allowing Cyd to escape. Again it is fair to say that not only does Alisha owe Cyd the same statutory duty as Bill but there is also physical proximity, with them both being in the van. It is reasonably foreseeable that if Alisha crashes that a prisoner will escape, whether it is foreseeable that Cyd would steal, Alisha only had to have foresaw a risk that if a prisoner escape they may commit a crime. The more apparent question arises from the case of Bourhill v Young 1942, whether Don's house was within the area of foreseeable risk. Likewise in Bill's claim it is fair, just and reasonable to impose a duty of care as Alisha ought to have insurance. In order to establish a factual causation, the court may question whether the breach caused harm to Don, thus applying the but for test; had Alisha not have crashed the van, would Cyd had escaped, had Cyd not escaped, would Don have had his money stolen. This chain of causation stems from Alisha's action as there is no evidence to suggest Don was still at a risk despite the crash. Alisha may use the defence of action of a third party, because as a general rule the defendant is not liable. On the other hand, it may be said that like in the case of Home Office v Dorset, Alisha is responsible for Cyd, due to her statutory due. So in theory, Alisha can be argued to be liable as she fails to fulfil her duty.

Fred on the other hand can make a claim against both Alisha and Emma, in regards to Alisha the same principle must be applied. Does Alisha owe a duty ? Is it foreseeable that a prisoner would be burned ? Was there proximity ? and with those factors being satisfied, is it fair, just and reasonable to impose a duty ? As Fred is also a prisoner, likewise Bill and Cyd, the same statutory duty applies, creating a special relationship, there is also the same physical proximity between them, as Fred is also in the van alongside the other two claimants. Taking into account the case of Pearson v Lightning 1998, Alisha is driving a van with a broken petrol tank, therefore Alisha would have foreseen a risk of injury, whether or not she foresaw the extent of the injury being a burn or an explosion. In Hughes v Lord Advocate 1963, the distinction between burning and explosion was too fine, therefore D was still liable. It is fair to say there is a duty owed and likewise in the first two claims, Alisha ought to have insurance. Fred must then be able to prove that there has been a breach of duty. In relation to the Bolam test supports the question put forward by Nettleship v Weston; whether Alisha's actions meet that of a competent driver. And would a competent driver speed in icy conditions. Moreover the Bolam test states that if the defendant claims to have a particular skill, they must present that skill to that of an experienced person. Although the general rule of a third party act suggest Alisha is not liable, she does not meet the standard of an experienced, competent driver, as a reasonable driver would not drive a vehicle with an damaged leaking petrol tank, as injury is foreseeable.

The claim against Emma ties in to the claim made against Alisha, Emma's act can be considered to be a third party act, and though the general rule is that Alisha is not liable for the actions of a third party. Other factors must be taken into account. Like any other claim in negligence, Fred must prove that Emma owed a duty of care, however this would be hard to prove as there is no established relationship/proximity, and Bourhill v Young 1942 seem to suggest that Emma is outside the area of foreseeability. The question that then presents itself is what degree of care can a child of that age be expected to take ? In Mullins v Richard 1998, two 15 year old girls were sword fighting with plastic rulers which snapped and blinded the claimant. The court then asked 'would a reasonable girl of that age have realised the risk?' Because there was no evidence of foreseeability, the defendant was not liable. Applying the but for test, but for Alisha's actions would Fred still have suffered injury, even if Emma had not dropped the cigarette end, he would have still suffered a broken arm. Because there was foreseeability from Alisha's behalf it is not too remote to suggest that someone could drop a cigarette end and cause the fire to ignite. On the other hand, when taking into account the case of Knightley v Johns 1982 it is suggested that Emma's actions are too remote, as there was no foreseeable risk, and a girl her age would not be expected to foresee the risk, avoiding liability. Liability then lies on Alisha as she acted negligently, causing harm to Fred, and had her actions not started the chain of events, Fred would not have been injured. Alisha fulfils the factors to both determine and to breach a duty.

Page 4

2012 Paper

The underlying issue presented is whether any of the claimants can make a claim in Negligence. Negligence as a tort is a breach of legal duty, resulting in damage of the claimant caused by the defendant. In order to establish a negative claim, the claimant must be able to prove that the defendant owed a duty, there was a breach and as a result caused damage to the claimant.

Donoghue v Stevenson 1932 put forward the idea of the 'neighbour principle', stating that reasonable steps must be taken to avoid acts and omissions likely to cause harm to your neighbour. This was later developed in Caparo v Dickman 1990, which proposed three stages to determine a duty of care; foreseeability, proximity and fair, just and reasonable. The question that this then brings into perspective is whether Lucy owes a duty to Jane. When taking foreseeability into account, was it foreseeable that if Lucy speed and got into an accident, that someone would get hurt ? This question can be answered by applying the test of a reasonable man, put forward in Nettleship v Weston 1971 which suggests that a competent driver would not speed in heavy rain, this ties in with the Bolam test which suggests that if the defendant claims to have a particular skill, they ought to show that skill to the level of an experienced person. However it is essential to take into account that Lucy is a new driver, so to what extent can she be expected to portray the skills of an experienced driver. Though it may be argued that any driver, regardless of experience, should bare the risk that if they get into an accident that injury may occur. In accordance to Yuen Kun Yeu v Attorney General of Hong Kong, foreseeability alone is too wide. Therefore it is essential to establish proximity. It is fair to say that there is physical proximity between Lucy and Jane, as they are both in the car and therefore they are both known to each other, creating a relationship. With both factors of foreseeability and proximity being established. It is essential to consider whether it is fair, just and reasonable to establish a duty of care. Keeping in view the case of Smith v MOD 2013, Lucy ought to have insurance, it is her responsibility to take the reasonable steps to avoid, lessen acts and omissions. To identify causation, it must be considered whether Lucy caused damage to Jane as a result of breach. This is where the 'but for' test comes into play, would Jane had been injured but for Lucy's actions. Lucy cannot use Jane's weakness in her defence, that her injury resulted from her not responding to treatment. The Eggskull Rule clearly states that a defendant must take their victim as they find them. Had it not been for Lucy crashing the car, Jane would not have broken her arm. In reference to Smith v Leech, although the claimant only suffered a burn to the lip due to the defendants negligence, the defendant was liable for all damage.Lucy did not have to foresee the extent of the harm that would occur, but merely had to foresee the risk of injury. In application it is likely that Lucy will be liable to Jane in negligence.

Jane can also make a claim against Dr Nafeesa, claiming a breach of duty in negligence, though it may be hard to prove. In regards to the claim against Lucy the same principle must be applied. Does Dr Nafeesa owe a duty to Jane ? Is it reasonably foreseeable that the bone would not heal properly ? Was there proximity and with those factors being satisfied, is it fair, just and reasonable to impose that duty ? Jane is a patient, and Dr Nafeesa a doctor, therefore it is fair to say that this establishes a statutory duty. Like in Chelsea v Barnett Hospital 1969, Dr Nafeesa assumed a duty of care once Jane was examined, taken to hospital. There is also a physical proximity as they are both in the hospital room together, and therefore are known to each other. Foreseeability was only 3% that the bone would heal properly, in relation to the case Hoston v East Berks, Foreseeability lies on Lucy, as she cannot prove on a balance of probability that Jane's bone would have healed. But should have been reasonably aware injury would occur. It is fair, just and reasonable for a statutory duty to be establish, as Dr Nafeesa's statues requires him to owe a duty of care, however it is clearly states that he does not act negligently and therefore there is no breach of duty. Dr Nafeesa would not be considered liable as his act did not worsen Jane's condition. Had it not been for Lucy's actions, Jane would not have been injured. Therefore liability lies on Lucy.

Another claim against Lucy can be made by Kim. Like in the previous claims, it is fair to say that it was foreseeable that if Lucy got into an accident that not only would someone get injured, but that someone may be called for help; which was established in the case of Haynes v Harwood 1935. Likewise Jane, physical proximity is established as they were both in the car, thus creating a relationship as they were known to each other. Lucy ought to have insurance therefore it is fair, just and reasonable to propose a duty of care, with both foreseeability and proximity being satisfied. A competent, reasonable driver would not have been speeding in heavy rain, and therefore Lucy ought to have merely foresaw the risk of injury, if not the extent. Kim then be able to prove that there has been a breach of duty. The general rule is that Lucy is not liable for the actions of a third party, and the delay of the fire brigade must contribute more than Lucy's action for this rule to have affect. However when applying the but for test, it is clear that Kim would not have suffered injury had it not been for Lucy crashing the car. When Kim goes for a run and collapses and hits her head, this raises the issue of remoteness. Was it too remote to suggest that Kim would suffer further injury as severe as an injury. While Lucy may argue this was unforeseeable, the Eggskull Rule states that you should take your victim as you find them, and cannot say that Kim's injuries occur because of her weakness. Although the type of injury Kim suffers is unforeseeable, Lucy only needs to foresee personal injury and thus liable for all injuries like shown in Smith v Leech Brain 1961 and Robinson v Post Office 1974. Furthermore like in Williams v Bermuda, Kim does not have to prove that Lucy's negligence was the main cause, as long as it 'materially contributed'. In application, although Lucy's actions was not the only material contribution, because she acted negligently and was in breach of her duty, the injury Kim suffered did not have to be concurrent but it was enough that they were consecutive. Had it not been for Lucy, Kim would not have suffered injury, therefore there is enough evidence that she might be liable.

Kim can also make a claim against Kingthorpe Fire Brigade, as they not only owed Kim a statutory duty, acknowledging the case of Kent v Griffiths 2000 a duty of care was also established when the call was answered. Although there was no physical proximity like in Osman v Ferguson, Kim was know to the Fire Bridge once the call was made, creating a relationship. The question that should then be asked is whether it was foreseeable that the delay would worsen Kim's condition. In the case of Micheal v Chief Constable of S Wales Police. Although they were not liable for the actions of the boyfriend, there was a breach of Art 2 - Right to life. Likewise the Fire brigade are not liable for Lucy's actions however despite the demand for emergency calls, Kim also has a right to life, despite the fact she was not dying she was entitled to medical care, in order to mitigate her condition worsening. It is fair, just and reasonable to impose a duty due to there status, and with a duty established, it is fair to say that the delay was a breach of that duty. Like in Kent v Griffiths. Likewise the claim made against Lucy, the actions of the Fire Brigade make a material contribution to Kim's injury and is enough to find them the defendant liable.

Does Lucy owe Oil a duty of care ? It is reasonably foreseeable that if Lucy got into an accident, that someone may come to help, which was shown in Haynes v Harwood. Although it can be said that a relationship is not established as Oil is outside the area of foreseeable risk in accordance to Bourhill v Young. The case of Chadwick v British Railway Board, put forward the idea that a duty is owed to rescuers, whether they are a member of the public or emergency service. Although there is no proximity, the general rule still applies, and is fair, just and reasonable to impose this duty as Lucy should have insurance. Oil does not accept the risk as it is reasonably foreseeable he would help, and therefore his actions cannot amount to a new intervening act as likewise in the case of Scott v Shepard he acted reasonably in the heat of the moment. Had it not been for Lucy's actions, Oil would not have had to interfere and due to her negligence, Lucy is likely to be liable to Oil.