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Tort of Negligence Problem Question
Molly is a single mother. She takes her daughter Rhonda (a two year old infant) to a local playground. While lighting a cigarette, Molly starts talking with another young parent, Dilbert. Molly is distracted by Dilbert’s good looks and gritty charm. Meanwhile, Rhonda starts to wander over to the road.
Dilbert notices a possible catastrophe and rushes out after Rhonda. Dilbert just manages to save Rhonda from being run over by Bob, who is driving a van within the speed limit and quite safely. However, Dilbert has too much forward momentum and collides with Bob’s van. Dilbert is seriously injured. Bob skids off the road and crashes into some playground equipment. Luckily, no children are using the equipment. Laura, driving at speed behind Bob, sees the above-related events and puts her foot down hard on the brakes. Laura’s car skids on an oil slick and crashes into a tree. Some distance behind the tree was Leonard. Leonard thought that Laura’s car might hit him and he started running away screaming ‘Oh Lord, don’t take me now!’ Leonard has an underlying personality disorder and develops a paranoid fear of going out into the street. As a result, he loses his job and his livelihood.
The accident involving Leonard is witnessed by Sherry, Rhonda’s grandmother, who is also at the park. Sherry suffers from a brief fright, but believes that she will be alright. However, she later develops post-traumatic stress disorder as a result of this event, combined with the news that Rhonda barely escaped a serious injury. She had not seen the incident involving Rhonda herself, because she had been busy setting out the picnic lunch.
Identify any actions available in the tort of negligence and analyse the elements of the tort accordingly.
We have two available answers from different researchers to this problem question
This scenario concerns the law relating to the tort of negligence. There are potential actions which arise out of two motor-vehicle accidents involving two drivers: Bob and Laura. In consequence of the accidents: Dilbert was “seriously injured” by Bob’s van; Leonard has developed a paranoid fear of going out on the street as a result of Laura’s crash; and Sherry has developed a post-traumatic stress disorder in consequence of Laura’s accident. In the light of those events, it follows that Dilbert, Leonard and Sherry have potential actions in negligence.
Turning to the relevant law, the landmark case of Donoghue v Stevenson1 set out three essential elements for such an action: firstly, a duty of care; secondly, a breach of that duty; and thirdly, the breach causing loss.
Against that background, each potential action will be critically analysed in turn.
Duty of Care
The first step is to establish a duty of care. It is well-established that control of a motor-vehicle creates a duty of care owed to those who might, reasonably foreseeably, be harmed by negligent exercise of that control.2 Accordingly, it is clear that Bob, as a motorist, owed Dilbert, as a pedestrian, a duty of care.
Breach of Duty
The next step is to ascertain whether the duty owed to Dilbert was breached. Lord MacMillan in the House of Lords stated that the standardofcareis thatofthe “reasonable man”.3 Specifically in respect of driving, in Nettleship v Weston Megaw LJ stated that”the standard of care required by the law is the standard of the competent and experienced driver.” 4
Therefore, the issue on these facts is whether Bob exercised reasonable care by meeting the standard of a competent and experienced driver. This is an objective question to be assessed on the balance of probabilities.
In application of the law, the facts state that Bob was driving “within the speed limit” and “quite safely”. This is consistent with a competent and experienced driver’s actions. Moreover, the facts state that Dilbert had too much forward momentum which, impliedly, contributed (if not caused) his collision with Bob’s van. In view of this, it appears that Bob met the standard of a competent and experienced driver and, by extension, was exercising reasonable care for the purposes of the law. Accordingly, Bob has not breached his duty of care to Dilbert.
Duty of Care
Turning to Leonard, Laura clearly owes Leonard a common-law duty of care on the same basis upon which Bob owed Dilbert a duty of care.
Breach of Duty
In relation to whether Laura breached her duty of care to Leonard, the question is whether Laura exercised reasonable care by driving to the standard of a competent and experienced driver.
It is clear from the factual nexus that Laura was “driving at speed behind Bob” and crashed into a tree despite having put “her foot down hard on the brakes”. Equally, it is plain that a competent and experienced driver would not be driving “at speed” behind a van. However, although the facts state that Laura was driving at speed it does not necessarily follow that she was driving in excess of the speed limit. Nonetheless, driving at speed seems to suggest a standard of driving which falls below the threshold of a competent and experienced driver. It follows that it is likely that Laura would be found to have breached her common-law duty.
Loss and Causation
The final stage is to establish that the Laura’s breach caused Leonard loss, which has two strands: loss and causation.
The facts state that Laura crashed into a tree which Leonard was “some distance behind”; that Leonard thought Laura’s car “might” hit him and therefore ran away screaming and that Leonard has an “underlying personality disorder”. These facts give rise to a number of issues.
Firstly, the fact that Leonard has an underlying personality disorder does not alter Laura’s liability for Leonard’s loss. Lord Parker LCJ in SmithvLeechBrain & Co5 affirmed the thin-skull rule that “it has always been the law of this country that a tortfeasor takes his victim as he finds him.”6 In application of that, it is clear that Laura’s duty to Leonard encompasses his underlying personality disorder.
Secondly, it is plain from the facts that Leonard was not physically injured; rather, his injury is “psychiatric” and therefore ‘nervous shock’. The relevant authority on this is Page v Smith.7 Lord Lloyd stated that it is essential to distinguish between primary and secondary victims in cases involving nervous shock.8 Therefore, it is necessary to establish into which category Leonard would fall. The authority of Alcock v Chief Constable of South Yorkshire Police9 considered the distinction between the categories. In particular, Lord Oliver stated:
“There is…nothing unusual or peculiar in the recognition by the law that compensatable injury may be caused just as much by a direct assault upon the mind or the nervous system as by direct physical .”10
It was held persons falling within this description can properly be said to be “primary” victims.
Importantly, Lord Lloyd stated that in cases of primary victims:
“it was enough to ask whether the defendant should have reasonably foreseen that the plaintiff might suffer physical injury as a result of the defendant’s negligence so as to bring him within the range of the defendant’s duty of care. It is unnecessary to ask, as a separate question, whether the defendant should reasonably have foreseen injury by shock; and it is irrelevant that the plaintiff did not, in fact, suffer any external physical injury’11
Accordingly, in view of Lord Lloyd’s statement of the law set out above, whether Leonard is a primary victim turns on whether Laura should have reasonably foreseen that Leonard “might” suffer physical injury. This will be a question of fact for the court. As the test is objective, based on “reasonableness”, the fact that Leonard thought the car might strike him is, strictly speaking, irrelevant. However, on the facts at present, there is a likelihood that a court would find that Leonard was a primary victim as the threshold of “might” is relatively low. To give a more conclusive answer it would assist to know precisely what distance Leonard was behind the tree.
Moreover, the lack of physical injury does not pose an obstacle to Leonard’s action as Page v Smith12 establishes that once physical injury to a primary victim is foreseeable, a claim for any recognised psychiatric illness is, in principle, recoverable.13 Thus, provided that evidence can establish that Leonard’s paranoia is a recognised psychiatric illness it is, in principle, recoverable. Notwithstanding this, it is necessary to consider whether the paranoia and loss of job and livelihood will be too remote.
Turning to remoteness, the leading cases are those of The Wagon Mound14 which made clear that the loss must be of a “kind” which is “reasonably foreseeable”. Thus, the question is whether paranoia and loss of job and livelihood are reasonably foreseeable, taking Leonard as Laura found him. This is ultimately a question of fact for the court. There are tenable arguments either way: Leonard may argue that as loss merely need be of a “kind” which is reasonably foreseeable, it follows that paranoia of going outside would naturally follow a car accident, particularly when coupled with the application of the thin-skull rule; on the other hand, Laura may argue that financial loss is of a kind which is too remote. This element of the action would be finely balanced.
Having established loss, it is necessary to establish causation. In relation to factual causation, the issue is whether Leonard would have suffered loss “but for” Laura’s breach. The facts state that Laura’s car skidded on an oil slick before crashing. It may be argued that this broke the chain of causation. In light of this, the “material contribution” principle is relevant. The Court of Appeal in Bailey v Ministry of Defence15 elaborated on this principle. Although this case related to medical negligence, Waller LJ at 46 stated that there is no distinction between the medical cases and others insofar as this principle applies and added that as long as the claimant can “establish that the contribution of the negligent cause was more than negligible” he will succeed. Applying this principle, although the oil may have contributed to the crash, the fact that Laura’s negligent driving was more than negligible means that the chain of causation is not broken. There is no break in legal causation as there is no novus actus interveniens.
On balance, subject to the caveats regarding evidence, medical recognition of Leonard’s condition and remoteness, it appears to be likely that Laura will be liable to Leonard.
Turning to Sherry, as a witness rather than a participant Sherry is a “secondary victim”. Sherry’s potential action is therefore governed by the principles set out in Alcock.16 To establish a claim for psychiatric illness resulting from shock it is necessary to show: the injury was reasonably foreseeable; the relationship between the claimant and defendant was sufficiently proximate based on ties of love and affection and proximity in time and space to the accident or its immediate aftermath.
There is nothing to suggest that Sherry has a close tie of love and affection for Leonard therefore it is unlikely that a claim would succeed based on witnessing his accident.
In relation to Rhonda’s accident, Sherry would need to prove a close tie of love and affection. However, in the event that she did, the claim is nonetheless likely to fail due to a lack of proximity in time and space. This is because she did not witness the accident involving Rhonda as she was setting out a picnic lunch and was informed afterwards. Lord Ackner stated”it has been generally accepted that damages for merely being informed of, or reading, or hearing about the accident are not recoverable”.17 Accordingly, as Sherry neither witnessed Rhonda’s accident nor the immediate aftermath it appears unlikely that her claim would succeed.
On balance, Bob will not be liable to Dilbert. Despite a duty of care being owed, there is no breach of that duty. Laura is likely to be liable to Leonard. However, there are the issues of whether harm was reasonably foreseeable, the medical recognition of Leonard’s condition and the legal issue of remoteness. Laura will not be liable to Sherry due to a lack of relationship in respect of witnessing Leonard’s accident and proximity in relation to Rhonda’s accident.
Table of Cases
Alcock v Chief Constable of South Yorkshire Police 1992 1 A.C. 310
Bailey v Ministry of Defence 2009 1 W.L.R. 1052
Bourhill v Young 1943 A.C. 92
Donoghue v Stevenson 1932 AC 502
Glasgow Corpn v Muir 1943 AC 448
McFarlane v EE Caledonia Ltd 1994 2 All E.R. 1
McLoughlin v O’Brian 1983 1 A.C. 410
Nettleship v Weston 1971 2 QB 691
Page v Smith 1996 A.C. 155
Simmons v British Steel Plc 2004 UKHL 20
SmithvLeechBrain & Co 1962 2 Q.B. 405
The Wagon Mound (No. 1) 1961 A.C. 388
The Wagon Mound (No. 2) 1967 1 A.C. 617
Christian Witting Street on Torts (14th edn, Oxford University Press, 2015), 25-195
Jenny Steele Tort Law (3rd edn, Oxford University Press, 2014), 111-462
Kirsty Horsey and Erika Rackley Tort Law (3rd edn, Oxford University Press, 2013), 93-120
Nicholas J McBride and Roderick Bagshaw Tort Law (4th edn, Pearson Education Limited, 2012), 92-327
W. E. Peel and J. Goudkamp Tort (19th edn, Sweet & Maxwell, 2014), 77-206
A General Outline of the Tort of Negligence
In order to analyse this problem, it is helpful to start by outlining the elements of the tort of negligence. They are as follows:
- The defendant must have a duty of care towards the claimant.
- The defendant must have breached that duty of care.
- Damage must have been caused by the breach.
In order for the defendant to owe a duty of care, there must be a relationship of proximity between the parties, the harm must be reasonably foreseeable, and it must be fair, reasonable and just to impose a duty.1 The duty of care is breached where the defendant fails to meet the standards of a reasonable person owing the duty. In many cases the court will not engage in this analysis, as it will be trite that a duty is owed in the circumstances.
Causation consists of two elements. Firstly, it must be more likely than not that but for the breach, the damage would not have happened (‘but for’ causation).2 There must not be an intervening act by another which breaks the chain of causation.3 Secondly, it must be reasonably foreseeable that damage would result from the breach.4 If the type of damage was foreseeable, then the defendant is liable for it in full, even if the extent of the damage was greater than expected.5 This means that if the victim has an ‘eggshell skull’, i.e. an unusual vulnerability which results in them suffering greater than expected damage, the defendant is nevertheless liable for the full extent.6
Claims against Rhonda
Children are judged by the standard of a reasonable child of the same age.7 As a two year-old child, Rhonda is very unlikely to be found to owe or have breached any duties. As a result, no claims lie against her even though she is the most direct cause of all the accidents. In any case, she is unlikely to have any assets that make it worthwhile to sue her.
Claim for Negligence by Dilbert
It is trite that drivers owe a duty of care to other road users to exercise reasonable care and skill, so Bob owes a duty of care towards Dilbert.8 However, we are told that Bob was driving ‘quite safely’ and within the speed limit, so there is no breach of the duty.
Dilbert is more likely to succeed in a claim for negligence against Molly. Adults who supervise children owe a duty of care to exercise reasonable supervision and control over the child,9 and it is reasonably foreseeable that injury may result to the child and others if care is not taken. The standard of care will be particularly high when it involves a child as young as Rhonda near a road, as generally the more foreseeable the damage and the greater its potential magnitude, the higher the standard of care.10 It is likely that Molly has breached her duty of care by becoming sufficiently distracted to allow Rhonda to wander off. Duty and breach are therefore established, as is damage, as Dilbert suffered physical harm. The only remaining element to prove is causation.
But for Molly’s inadequate supervision, Rhonda would have not wandered off, Dilbert would not have chased her, and would not have been injured. As noted above, the chain of causation may be broken by intervening acts. The question is whether Dilbert broke the chain of causation by choosing to try to save Rhonda. Where the intervening party is the Claimant himself, the question is whether his actions were reasonable in the context.11 The court is very unlikely to find that attempting to rescue a child in danger in this manner is unreasonable. It unlikely that Dilbert has broken the chain of causation.
As to the damage being reasonably foreseeable, it seems reasonably foreseeable that, if Molly’s failure to supervise Rhonda resulted in Rhonda being put in danger, someone would attempt to rescue her and might be hurt in the process. In addition, in such circumstances the court is also unlikely to permit Molly to use the defence of volenti non fit injuria, the argument that Dilbert voluntarily took on the risk of being injured.12 In conclusion, all the elements of negligence are made out. Dilbert will have a successful claim in negligence against Molly.
Claim for Negligence by Bob against Molly
A similar analysis as above applies to a claim in negligence by Bob against Molly. Molly breached her duty of care to supervise Rhonda, and it was reasonably foreseeable that she would become a danger to nearby road users if she wandered off. Dilbert’s decision to try to rescue Rhonda does not break the chain of causation.
We are not told whether Bob suffered any injury or damage to his property. If he did not, then he will fail to establish damage and the claim in negligence will fail. If he did, he can succeed.
Claim for Negligence by the Owner of the Park Equipment
When Bob skidded off the road, he hit park equipment. Bob has not breached his duty of care, so the owner of the equipment would not succeed in a claim against him. However, as property damage was a reasonably foreseeable consequence of letting Rhonda wander off, they would succeed in a claim against Molly.
Claim for Negligence by Laura against Molly
The analysis as to duty of care owed by Molly, breach and the effect of Dilbert’s intervention are the same as above. It is assumed that Laura at least suffered property damage as a result of hitting the tree. The only element that requires in depth analysis is therefore causation.
If Molly had not set into motion the chain of events that led to Bob crashing, Laura would not have hit the tree. However, Laura is said to be driving ‘at speed’. We are not told if she was beyond the speed limit, nor is it clear whether or not she would have skidded on the oil slick had she been driving within the speed limit. The court might deem that she did not act reasonably in the circumstances, and so her speeding was a break in the chain of causation. This is unlikely however as the courts have an alternative that they are more likely to turn to where the claimant’s actions are only partly a cause of their misfortune: the partial defence of contributory negligence. This allows the court to reduce the damages Laura recovers to the extent that her lack of care for her own safety is deemed responsible for them.13
As to foreseeability, it is only necessary that the type of damage was foreseeable. It is not necessary to show that Molly foresaw the potential presence of an oil slick and so on. As such, foreseeability is likely to be made out.
Claim for Negligence by Leonard and Sherry against Molly and/or Laura
Leonard and Sherry both suffered psychiatric harm as a result of the accident. They can sue either Molly, Laura, or both. Laura owed a duty of care to exercise reasonable skill and care while driving. There is not enough information to say whether she breached this duty, as we do not know how fast she was going, but the court is likely to find a breach if she was speeding, so we will assume that she is in breach.
The Law Relating to Claims for Psychiatric Damage
It is only possible to establish damage in the case of a ‘recognisable psychiatric illness’.14 Post-Traumatic Stress disorder is such an illness, so Sherry will not fail at this hurdle. Whether Leonard’s personality disorder is a recognised psychiatric illness which has been exacerbated, or whether his paranoid fear of the street qualifies as a separate illness is not made explicit. Given the extremity of their effects, we will presume that he is suffering a recognisable psychiatric illness.
Establishing a duty of care not to cause psychiatric damage is generally more difficult than with physical injury. The courts distinguish between ‘primary’ and ‘secondary’ victims. Primary victims are those who are objectively within the zone of physical danger.15 Secondary victims are those who are not.16 If the claimant is a primary victim, they need only establish that it was reasonably foreseeable that they would suffer physical harm.17 A secondary victim, on the other hand, must establish that it was foreseeable that a person of reasonable fortitude would suffer psychiatric harm.18 To show this the claimant must satisfy the test in Alcock v Chief Constable of South Yorkshire19, namely that:
- There is close tie of “love and affection” between the claimant and the victim;20
- There is sufficient proximity to the event or its immediate aftermath in time and space. This normally requires that the claimant directly perceived the event and/or its immediate aftermath with their own unaided senses.21
- The psychiatric injury is a result of a “sudden assault”, rather than gradual damage to mental health.22
The Claim by Leonard
Leonard is a primary victim, as he was in danger of being hit by Laura. Physical harm was foreseeable, so Leonard will be able to establish duties of care owed by both Laura and Molly. That he had an underlying personality disorder that made psychiatric harm more likely than the ordinary man is irrelevant: the eggshell skull rule applies.23
If Laura is the defendant, then there is no intervening act between her speeding and hitting the tree, so causation is made out. If it is Molly, then we must look again at whether Laura’s speeding was an intervening act. Where the intervening act is that of a third party other than the claimant, causation will be broken unless that act was foreseeable by the defendant. Negligent acts are less likely to be foreseeable.24 Since we do not know how fast or negligently Laura was driving, it is difficult to say whether Laura has broken the chain of causation. An alternative available to the court, if they deem causation not to be broken, is to apportion liability between Molly and Laura.25 Regardless, Leonard is likely to succeed against one or both of them.
As for damage, economic loss is a foreseeable consequence of causing someone physical/psychiatric harm, so Leonard would be able to recover financially for having lost his livelihood, as well as damages for the psychiatric injury itself.
The Claim by Sherry
It is not clear whether Sherry was within the zone of physical danger. Given she was evidently not close enough to notice Rhonda’s involvement, we will assume she was not.
If she is a secondary victim, she will need to establish a bond of love and affection with Rhonda, and we are not given enough information to assess how likely she would be in succeeding at this. The third element of the Alock test is made out: both the accident and her finding out about Rhonda were presumably quite sudden shocks. As to the second element, Sherry did not witness what happened to Rhonda with her own senses. There is no liability for negligence where the shock is caused by the communication of the shocking information by a third party.26 As such her claim would fail.
In conclusion, Dilbert and Bob are likely to succeed in an action for negligence against Molly. Laura is also likely to succeed, though she will have a slightly harder time proving causation. If she succeeds, she is very likely to have her damages reduced for contributory negligence. Leonard is likely to succeed in an action for negligence against Molly and/or Laura. As a secondary victim, Sherry is unlikely to succeed in any negligence action.
1Caparo Industries Plc v Dickman  UKHL 2,  2 AC 605
2Barnett v Chelsea & Kensington Hospital  1 QB 428
3Home Office v Dorset Yacht Co Ltd  UKHL 2,  AC 1004
4Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd, The Wagon Mound (No 1)  UKPC 1,  AC 388
5Smith v Leech Brain & Co  2 QB 405
7Mullin v Richards & Anor  EWCA Civ 2662,  1 All ER 920
8Nettleship v Weston  EWCA Civ 6,  2 QB 691
9Williams v Eady (1893) 10 TLR 41
10Bolton v. Stone  AC 850
11Baker v TE Hopkins & Son Ltd  3 All ER 225
13Law Reform (Contributory Negligence) Act 1945, s 1
14Hinz v. Berry  2 QB 40
15McFarlane v E. E. Caledonia  1 WLR 366
16Alcock v Chief Constable of South Yorkshire  UKHL 5,  1 AC 310
17Page v Smith  UKHL 7,  1 AC 155
18McLoughlin v. O’Brian  UKHL 3,  1 A.C. 410, 422
19Alcock (n 13)
23Page (n 14)
24Knightley v Johns & Ors  EWCA Civ 6,  1 WLR 349
25Webb v Barclays Bank Plc and Portsmouth Hospitals NHS Trust  EWCA Civ 1141,  Lloyd’s Rep Med 500
26McLoughlin (n 15), 422-423
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