1604490 duty of care where Jacob’s injuries were

1604490

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Jacob is seeking to
establish, in delict, that Fred had acted negligently. In doing so, he would
have to meet the 4 criteria in claiming negligence. First the courts must find,
on the balance of probabilities, that the defender owed a duty of care to the pursuer.
To do so, you would use the tripartite test which was first introduced by Lord Atkin
in Donoghue v Stevenson1.
This rule states that Fred only owes Jacob a duty of care where Jacob’s
injuries were a reasonably foreseeable consequence of Fred’s conduct. As well
as this, Jacob and Fred’s relationship must be so closely and directly connected
that Fred ought to have Jacob, and other people around him, in his
considerations while conducting himself. Finally, it must be fair, just, and
reasonable that a duty of care be imposed, and not be contrary to public
policy. Next, if a duty of care has been established, Fred must be found to
have breached his duty of care to Jacob through his misconduct. There must also
be a causative link between Fred’s conduct and Jacob’s injury. Finally, any
injury from Fred’s misconduct must not be too remote, as this would absolve
liability for the damage.

In Jacob’s claim for
negligence, he must first establish that a duty of care was owed to him by
Fred. To find this, you would apply the tripartite test, first introduced in Donoghue v Stevenson2.
Lord Atkin stated that for there to be a duty of care owed by the defender, the
pursuer must fulfil the neighbour principle. This involved finding that the
pursuer’s injury was a reasonably foreseeable consequence of the defender’s
actions. As well as this, the courts must find that the relationship between
the two parties was so close and direct that the defender ought to have the
pursuer in his considerations while conducting himself. To illustrate, the case
of Donoghue v Stevenson3
is important. In this case, the pursuer was injured when she ingested
ginger beer, manufactured by the defender, which contained the remains of a
decomposed snail. The parties had no direct contract, so she had to base her
action in delict and establish that Stevenson owed her a duty of care. It was
held by the court that the manufacturer failed to ensure that snails were not
getting in their bottles and that their workers were not adequately checking
the bottles before filling them. This was conduct which had foreseeable consequences
in injuring their customers. Despite not having a direct contract between the
parties, the relationship between them was sufficient in that manufacturers of
food and drink are responsible for defective products which are intended to be
consumed by their ultimate customer, without opportunity for intermediate
inspection. This rule was known as the narrow ratio, but this has since been
put into statute through the Consumer Protection Act 1987, which makes
defective property the responsibility of the manufacturer. The tripartite test
was completed when Lord Bridge, in Caparo
Industries v Dickman4,
stated that not only must the neighbour principle be fulfilled, but it must
also be fair, just, and reasonable that a duty of care be imposed. In this
case, the pursuers were shareholders in a company who relied on an audit made
by the defenders. They purchased further shares in a company, and after an
unsuccessful takeover bid, they lost money. They blamed this on an audit made
by the defenders and sued them for negligence. The court held that it was not
reasonable to impose a duty of care on the auditors as they had no special
relationship with the pursuers. Finally, the tripartite test is supplemented
with the rule that an imposition of a duty of care must not be contrary to
public policy. In application to Jacob’s scenario, you must follow the rules
set out in the tripartite test, and in doing so the court will likely find that
Fred owed a duty of care to him. The relationship between Fred and Jacob is
close enough that Fred ought to have Jacob in his considerations when he failed
to ensure the tarpaulin was tied down properly. Failure to do so had reasonably
foreseeable consequences in injuring Jacob, and other people around his pickup
truck. He also knew of the stormy weather, and that the thin cover could,
following the reasonable man test, be blown off and cause harm to other people.
It is also not contrary to fairness or public policy that a duty of care be
imposed on him.

While
Jacob has established that Fred was owe him a duty of care, he must still find that
Fred breached this duty of care through his misconduct, otherwise delictual
liability will not apply5.
Jacob must first find that the Fred’s act was a voluntary one. In Waugh v James K Allan Ltd6.,
a lorry driver suffered symptoms of a gastric attack. Soon after feeling
better he began driving again, but died at the wheel and it was found that
these symptoms were that of thrombosis. The lorry swerved and injured a pedestrian.
Although the driver did owe the pedestrians a duty of care, he had no
reasonable anticipation of what the symptoms were, as stated by medical
experts. Had the driver known, his conduct would’ve been voluntary, and would
have owed the pedestrians a duty of care. To apply, Fred, while he did so
accidentally, he voluntarily left the tarpaulin without ensuring it was tied
down properly. So, in this sense, Fred had breached his duty of care. Next, the
conduct must pose a reasonable and probable consequence of harm to the pursuer.
Like when establishing a duty of care, the injury must be found to a probable
consequence of the conduct. Following Muir
v Glasgow Corporation Ltd7
the House of Lords uses the reasonable person test in establishing whether
the café owner had breached her duty of care to the children. In this case,
members of a tea party held a picnic in King’s Park in Glasgow, and had been
using the café’s hot water for their drinks. Upon carrying the tea urn through
a narrow corridor, which contained a sweet stand, the urn was dropped and
scolded some of the children in line. The tea rooms employer, Glasgow
Corporation, was petitioned in that they were vicariously liable for the tea
room owner’s breach of her duty of care to the children. It was held that while
she did owe the children a duty of care, the House of Lords took the view,
using the reasonable person test, that she was to presume that the urn would be
carried by responsible people who would take extra care when passing the
children, and as to not scold the children. As such, she did not breach her
duty of care. To apply, the reasonable person, would likely find that in stormy
weather the tarpaulin would blow off, it had reasonably foreseeable
consequences for the people around the truck. As such, Fred did breach his duty
of care to Jacob. The reasonable man would have, in the stormy weather, ensured
that the tarpaulin was tied down properly. Following these rules, it is likely
that Fred will be found to have breached his duty of care, fulfilling the
second criteria in establishing negligence.

 

Following
this, Jacob must establish that his injuries were a direct result of Fred’s
misconduct, and find the causative link between the two. To do so, you would
begin with the ‘but for’ test. This states that ‘but for’ the breach of the
duty of care, would the harm have occurred? This is a question of fact whether
the breach of the duty of care was the cause or part cause of the injury to
Jacob. A case where the causative link was failed to be found was in McWilliams v Sir William Arrol & Co and
Lithgows Ltd8
where a workman had fallen from a steel tower while at work. His widow sued his
employer and the occupiers of the ship yard, where he was working. She said
they had breached their duty of care because the employer had failed to provide
safety belts to the workers. It was found in evidence that even if safety belts
had been provided the workers wouldn’t have been worn. ‘But for’ the failure to
provide safety belts, the accident would have happened anyway, and as such, the
widow was unsuccessful in her claim against the defenders. In application, ‘but
for’ Fred’s inability to ensure the tarpaulin was tied down properly, the
injuries sustained by Jacob would not have happened. Jacob would have fulfilled
these criteria if he can pass the limitations put on the ‘but for’ test. Novus actus interveniens is another
intervening act which harms the pursuer, following the defender’s breach of
duty. These come under three categories; an external event, the conduct of a
third party, or an action of the pursuer themselves. If the intervening act is
reasonably foreseeable, then it will not break the chain of causation. For
example, in McKew v Holland & Hannen
& Cubits (Scotland) Ltd9 the
pursuer sustained severe injuries at work to his back and his left leg. The
employers accepted that they were owe a duty of care to him in this situation. However,
shortly after being injured at work, he was injured again. He was visiting a
flat with his wife, and the stairway had no rail on it, so he jumped down 10
stairs and landed on his right leg, which resulted in damage to his right leg.
This directly attributed to the damage to the right leg, so the chain of
causation was broken for second accident, and the defender was not liable for
the second leg injury. In Jacob’s claim, Fred will be liable as far as is found
to be a direct result of his actions. He will likely be found responsible for
the injuries resulting from Jacob’s fall, and for his burn. His burn was a
result of his own conduct, but it was reasonably foreseeable that he would grab
something to help him up after falling. However, Jacob continually cleaned his
burn, against his doctor’s requests, with strong disinfectant resulting in a
bad infection and amputation. This would absolve Fred from liability for the
amputation, as this was a novus actus
interveniens. As well as this, if the pursuer is found to be contributorily
negligence, then damages will be reduced. Like in Heary v Phinn10,
the pursuer was locked in the defender’s yard after being allowed in. He had climbed
the high wall after finding himself trapped, and as a result he fell and did
serious damage to his legs. It was held that while the defender was liable for
the injuries, the pursuer was contributorily negligence and as such the damages
were to be reduced. It could be seen by the court that when Jacob burned
himself, that this is contributorily negligent, and as such the damages would
be reduced. This is related to remoteness of damages, which is the final
criteria in establishing negligence.

 

In establishing how
remote the damage sustained is, the Scottish position is that the defender will
only be liable for the consequences which are foreseeable. This method has been
demonstrated in Overseas Tankship (UK)
Ltd v Morts Dock Engineering Co Ltd (The Wagon Mound)11
where a ship was docked in Sydney harbour. The ship was transporting oil and a
lot ended up lying on the water. This was blown by the wind beneath a dock,
which belonged to the defenders. The oil ended up on the dock slipway and
molten metal from the dock eventually ignited the slipway on fire, which
destroyed the dock. It was held that the oil on the slipway was a foreseeable
consequence, but not the destruction of the dock. A judge in the Simmons v British Steel Plc12
case followed this decision, in stating that the defender was not liable
for injuries which were not a reasonably foreseeable consequence of their
actions. To apply, the injuries from the fall, were reasonably foreseeable consequences,
and as such Fred was liable for these. However, the amputation was too remote
from the Fred’s conduct for him to held liable.

To conclude, Jacob must
first establish that a duty of care was owed to him. Following the tripartite
test, it would be found that Fred did owe him a duty of care. Next, the court
must find that the Fred breached his duty of care, which he did. Then the
courts must see the causative link between Fred’s conduct and Jacob’s injuries,
which they will. Finally, the injuries must not be found to be too remote. In
conclusion, it is likely that Fred will be found to be liable for damages
occurring from the fall, and receive part blame for the burn. However, he will
not be found liable for Jacob’s amputation, as this would be too remot

Question 2

The law has recognised
that a defender can owe a pursuer a duty of care to prevent mental harm, as a
result from their own misconduct. Psychiatric injury is looked at differently
from physical injury in relation to duty of care, as to avoid the floodgates of
litigation from opening. Lord Keith has stated that nervous shock is:

“a
reaction to an immediate or horrifying impact, resulting in recognisable
psychiatric illness. There must be some serious mental disturbance outside the
range of normal human experience”13

This means that the law
mustn’t allow a duty of care to be owed where the pursuer has simply gotten a
fright. Instead, it must amount to a recognisable psychiatric disorder,
otherwise, it should not be successful. In the past, the courts have often only
allowed recovery of damages where the victim has been in reasonably foreseeable
danger because of the defender’s conduct. In these circumstances the defender
will owe the victim a duty of care, mattering not whether the harm came about
or if the psychiatric injury was reasonably foreseeable. Now it is more
lenient. Once the psychiatric disorder has been established, it is next
important to look at whether the pursuer was a primary or a secondary victim. A
primary victim is that of someone who was actively part in the incident, and a
secondary victim is someone who has witnessed it taking place. Obviously, a
primary victim is more likely to recover damages than a secondary victim, and
the latter has strict guidelines which must be followed.

A primary victim is
someone who has been actively part of the events, exposed to physical danger
and because of this, has suffered from psychiatric injury. The courts are most
likely to allow these victims to recover damages for nervous shock. It must be
found that the primary victim had a reasonable foreseeability of physical harm
coming to them. An example, is in Page v
Smith14.
In this case the parties were in a car accident, at the fault of the defender.
The pursuer was not physically harmed but had become ill from a recurrence of ME
which he had suffered for 20 years. As a result of the accident, the illness
because chronic and permanent and so he was awarded damages. The court of
appeal allowed defendant’s argument on basis that the plaintiff’s injury was
not reasonably foreseeable, but it was held on further appeal in favour of the
pursuer. This was on the basis that the defender ought to have reasonably
foreseen the pursuer suffering injury as a result of their misconduct. These
rules are relatively strict, but in some cases, a more lenient approach is
used.

In relation to cases
where the pursuer was active in the events, but not in physical danger
themselves, they can often recover damages for psychiatric injury. These
individuals would be primary victims in that they were directly involved in the
incident. In illustration, Dooley v
Cammell Laird & Co. Ltd15,
involved a case where a crane driver was able to recover damages. In this
case, his crane rope had snapped as it was not fit for use, and the heavy load
he was carrying fell onto the hold of a ship, and he believed he had killed
many people. He suffered nervous shock as a result and the court held he was to
be successful in his claim against his employers. Following this decision, in Salter v UB Frozen and Chilled Foods Ltd16,
where a fork lift driver was able to recover damages from their employer. His
fellow colleagues were doing a stock take, and in doing so, were lifted by him
to a height. They were to duck down when the roof got too low, but one failed
to do so and was fatally injured. Again, in this case the pursuer successfully
claimed on the basis he actively participated in the traumatic events, which
have left him with nervous shock. To apply in this incident, Roger was
controlling the crane at the time of the accident. While it could be said that
he was not in any physical danger, he was a primary victim in the sense that he
was actively involved in the incident, and not just an onlooker. As such, he
would be able to recover damages for his psychiatric injury.

Another example where
the rules of primary victims are more lenient is when it relates to people who
are attempting to rescue victims of an accident. The first case on the matter
was Chadwick v British Transport
Commission17.
This involved a serious train crash in which 100 people had died. The pursuer
was someone who lived close by, and in effort to assist with the rescue,
entered the train station and risked his life. Because of this, he had suffered
nervous shock and sued the defendants on the basis that they were responsible
for it. It was held that since it was reasonably foreseeable that he may suffer
psychiatric injury as a result, the plaintiff was able to recover damages,
irrelevant of whether he feared for his own safety. This decision was
distinguished from White v Chief
Constable of South Yorkshire Police18
in which the court identified that the police officers were working for their
employer, their employer who had no opportunity or capability from shielding
them from the psychiatric injury sustained as a result of witnessing the
Hillsborough disaster. To apply in the scenario, Michael was a secondary victim
and entered the area just after the incident had taken place. He rushed over
and at his own risk, crawled through the debris in attempt to save the bodies.
Following these legal rules, Michael will therefore likely be allowed to
recover damages for his nervous shock, as this was a reasonably foreseeable
consequence of him attempting to help in the rescue of the victims.

The secondary victim is
someone who witnesses someone being injured, and as a result suffers
psychiatric injury. These rules are strict, and only in certain cases will
pursuers be able to obtain damages from the defenders. In Bourhill v Young19,
the pursuer failed to establish she was a secondary victim who was able to
recover damages from the defender. The defender was executors for a
motorcyclist who had crashed 15 metres from the pursuer, after they had been driving
erratically. She did not see the accident, nor did she see anything until the
body was moved. She was not at risk of any physical harm and it was held that
it was not reasonably foreseeable for her to sustain psychiatric injury because
of the accident. She only heard the accident which was insufficient to grant
her damages from the deceased. From this case until McLoughlin v O’Brian20,
no secondary victims could recover damages in cases of psychiatric injury. In
this case, the pursuer’s family was hit by a lorry driven by the defenders. She
was at home two miles away and only found out when a neighbour had gone to her
door. When she got to the hospital, her youngest daughter was dead and her
other family members were covered in blood and oil. She claimed she was
severely shocked and it affected her ability as a wife and mother. The defendants
admitted liability of the crash but stated that her psychiatric injury was not
due to their negligence, and as such she was not owe a duty of care. It was
held that the nervous shock had not been reasonably foreseeable, so she was not
able to claim damages. On appeal, it was held that the law limited liability of
nervous shock to primary victims only, and the pursuer did not constitute as
she had been two miles away, and did not arrive at the hospital until two hours
later. On a further appeal, it was allowed as nervous shock was a reasonably
foreseeable result of seeing the injuries sustained by her family, because of
the defender’s negligence, so therefore she was able to recover damages.
Following McLoughlin, Marsha is a
wife of one of the deceased. She was shouted from her nearby workplace, after
being told of her husband’s death. She saw the aftermath events of her husband
and co-worker being put in the ambulance. Her nervous shock was a reasonably
foreseeable consequence of the injuries sustained by seeing her husband, and as
a result she should recover damages for the defender’s negligence.

Finally, one of the most
important cases in deciding on the matter of secondary victims is in the Alcock21
case. This case set out the criteria which all secondary victims must now
meet for them to succeed in a case of psychiatric injury. This case involved
the Hillsborough disaster, where 96 football fans were crushed to death after
the defenders were found responsible for overcrowding the football stadium. The
disaster was broadcast live on TV, and the pursuers were all friends or
relatives of the victims. All the pursuers claimed they suffered psychiatric
injury as a result of witnessing and identifying their loved ones. It was held
by the court that in order to succeed, the injury sustained by the pursuers had
to be reasonably foreseeable. In this is the three categories necessary for the
secondary victims to meet. First, the relationship of the victims must be
recognised. The relationship must be sufficiently proximate, being one of love
and affection. This could include spouses, siblings or parents and children.
Other cases the love must be proven further, where the relationship between the
two is more distant, for example, in cousins. However, a stranger may succeed
in claiming damages where the scene is specifically horrific that it would be
reasonable for a strong-willed person to suffer nervous shock. In this sense,
Marsha would still be due a duty of care by the defenders, but David would not
as he had no close relationship with the victims of the accident. Next the
courts must look at the proximity of the pursuers to the scene. They had to be
close in time and space, but could have witnessed the aftermath of the event. McLoughlin allowed a two-hour gap, in
waiting for the pursuer to reach the hospital to see her family. So likely, the
courts will allow Marsha to recover damages, because she reached the scene of
the incident shortly after it had taken place, in enough time that she
witnessed her husband being put in the ambulance. To compare, David would not
be due a duty of care by his employer, in that he did not witness the
aftermath, as the ambulance had already left. Finally, for the courts to
establish the pursuers were due a duty of care in relation to psychiatric
injury, they must look at how the shock was caused. The pursuer had to have
witnessed the events with their own unaided senses. This meant that in the case
of Alcock the pursuers who had
suffered nervous shock as a result of viewing their relatives dying on the
television, they were not able to recover damages. Again, it is not crucial
that the secondary victims witness the event. As Marsha still witnessed the
aftermath of the events, seeing her husband being put in the ambulance, this is
sufficient. David, again, did not witness the event with his own senses, as he
did not arrive until after the ambulance had left, and so would not be able to
recover damages.

To conclude, primary
victims can usually always claim for nervous shock. There are rules set out in
case law that allow for other victims to be classed as primary victims, for
example rescuers, like Michael. Michael would able to recover damages as he was
attempting to save the victims, at the risk of his own life. As well as this,
Roger did only witness what had happened. However, following case law, Roger
was directly involved in the incident, and as such is a primary victim who can
recover damages from the defenders. The rules set out including more secondary
victims, through the McLoughlin and Alcock cases, allows for Marsha to be able
to recover damages. However, as David had no relationship with the deceased,
was nowhere near the incident, and did not witness the aftermath, he was not
due a duty of care. In conclusion, all of them but David would be able to
recover damages.