Essay: Elements of tort + tort problem question

Tort is French for ‘civil wrong doings’ . M Jones described it as ‘The law of torts is primarily concerned with providing a remedy to persons who’ve been harmed by the conduct of others’ . The claimant must prove three elements; a legal duty to exercise care, breach of that duty, and damage caused to the claimant due to that breach.
Lord Atkins judgement in Donoghue v Stevenson ‘you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour…’ The duty of care is based on the neighbour principle . Being a professional body, the doctor owed a duty of care towards Alan to ask him for any allergies and examine him correctly before treating him. Lord Denning showed concern that they should not be prevented from working strictly, making them more liable . Similarly, to Barnett where examination before diagnosis was important.
The standard of care is not the same as the ‘reasonable man’, who don’t share similar skills. The doctor is a professional who didn’t behave how a reasonable professional would as they would have asked for the allergies beforehand. It was a non-feasance act, they caused the harm and allowed the damage to happen by not taking precautions.
Caparo v Dickman introduced a three-part test to establish negligence; foreseeability, proximity and fair, just and reasonable . The doctor must have foreseen the consequences of what would happen if he fails to ask for allergies, but liability may be rejected due to being ‘inexperienced’. This could question why the hospital allowed an ‘inexperienced’ doctor to inject a patient, the courts may then believe that they should plan guidelines for future cases to prevent this, increasing liability. But the standard of care still should be met even for being inexperienced, the court rejected the claim of a junior doctor being less liable in Wisher v Essex because he should still act as a professional. In comparison to Bourhill where the claimant willingly walked towards the crash, Alan didn’t know he would be injected with antibiotics which he may be allergic to due to not being notified. They had a duty to prevent him from any fault but failed to do so.
Problems with the Caparo test is that it restricts judge’s growth. Situations develop quickly, making it harder to label negligence.
Therefore, the standard of care was breached as there was only one possible explanation of his cardiac arrest. If the doctor asked for allergies beforehand, it wouldn’t have happened. Additionally, the defendant was always in control, even of the damage caused.
The hospital must prove that due to the breach of duty of not asking Alan if he is allergic to the antibiotics, the damage of suffering a cardiac arrest was caused.
Causation in Fact known as the ‘but for’ test is a simple test which shows if the damage was caused by the defendant . Lord Denning stated “… if the damage would not have happened but for a particular fault, then that fault is the cause of the damage; if it would have happened just the same, fault or no fault, the fault is not the cause of the damage.” If the doctor asked if he was allergic and prevented the act, there wouldn’t have been a reaction and the hospital could have used other ways to make sure there wouldn’t be any infection. Alan was not going to die without being injected by the antibiotic because he only suffered very minor cuts and bruises, showing that the actual damage was caused by the hospitals negligent act.
Causation in law is when the courts believe that it would be too unfair for the defendant to compensate for all damages, therefore they look at the remoteness of damage. The type of injury must be reasonably foreseeable but the precise manner of the damage does not need to be foreseeable. Contrasting to Wagon Mound , the negligent act of the hospital was not reasonably foreseeable as they are trained for these circumstances . They are competent enough for the duty. Therefore, no reasonable person would foresee this, making the hospital liable for Alans injuries.
Novus Actus Interveniens assumes there must be an unbroken chain of causation . But it can be argued that if the intervening act of negligence from the ride did not occur, Alan would not be in hospital to prevent his body from infection. The intervening act was not foreseeable, making the Act ‘too remote’, making the hospital not liable for the damage.
Nervous shock is when a ‘person suffers an adverse reaction when they are involved or witness an accident in which a loved one is injured.’ The claimant is Bella; suffering from Post-Traumatic-Stress-Disorder.
The courts were not always sure if liability is appropriate or not, Alcock v Chief Constable produced three most important elements to prove nervous shock claims is that; the type of injury is known by the law, it was caused by a single horrible act which resulted the negligence, victim is of a class which is known by law as appropriate to claim.
Bella’s claim can be accepted due to the fear of her children and husband being hurt in the same single event such as in Mcloughlin v O’Brian . Bella also was in close proximity within both her daughter and husband and witnessed the accident. She witnessed the ‘immediate aftermath’ of Alans death. This is because of the hospital breaching the duty of care for him due to the reaction he had because of being allergic to the antibiotics which the hospital didn’t ask about. This led her to suffer from PTSD which is acceptable to show enough that it’s a recognised psychiatric injury.
The nature of the injury is very important to consider. Also shown in Vernon v Bosley , Bella’s condition occurred due to pathological grief and bereavement, but because she also witnessed the accident and immediate aftermath, she developed trauma. Suffering from PTSD has long term effects. This single event produced more than grief, anger, distress or any ‘normal emotion’, it caused a depression disorder which is hard to overcome. Therefore, the courts may compensate her for it.
The cause of Bella’s injury of PTSD was triggered by having to watch her husband die. The duty of the hospital was to treat Alan correctly and to avoid causing any psychiatric injury which is recognised by law. Bella did not expect the hospital to cause Alan to have an allergic reaction which would cause his cardiac arrest and then die. This was an unexpected shock induced event. But it can be argued that medical negligence caused the psychiatric damage, it was a ‘slow burn’ effect rather than being a sudden shock as if it wasn’t for the first accident on the ride, the medical negligence therefore wouldn’t have happened, and she wouldn’t have suffered from PTSD.
Bella is a secondary victim; her claim accepts the rules which were based in Alcock (1991) . She had a very close relationship of love for her husband Alan, making it reasonable foreseeable that she will suffer nervous shock if he was injured. She also was in close proximity to the immediate aftermath in time and space by assuming she was at the hospital while they were treating him. She then used her own senses in hearing the declarations of aftermath by the doctors . She was reasonable fortitude to this type of harm because before this event, she had no psychiatric injury . She is not a primary victim because she was not physically injured from the event such as in Dulieu v White .
Occupiers liability encompasses the liability of an ‘occupier’ of land for Chelsea’s fatal injuries while being on the premises of Extrathrill Fun Park, found in two statutes: Occupiers Liability Act 1957 (involves duty of care owed to lawful visitors) and Occupiers Liability Act 1984 (involves duty owed to trespassers and lower compensation).
S1(2) of the 1957 Act states that the occupier; Extrathrill Fun Park is in ‘control of premises…’ They are in material control of whatever happens on their premises as they exercised control, involving the rides. But S1(3)(a) reinforces that the premises are any ‘fixed or moveable structure’, being the rides in the park. Therefore, any harm caused by the state of the premises, the occupier is liable for.
Chelsea, the claimant was a strict lawful visitor to the park and was not trespassing. She was on the ride with her father closely supervising her, the harm caused was due to the state of the premises. S2(3) states the ‘the premises must be reasonably safe for a child of that age…’ Eight-year-old Chelsea was not allured to danger, she and her parents expected that the rides will be safe to use as it was open to her. What a threat may be towards an adult will be much more dangerous to a child.
In s2 (1) of the Act, duty is described as ‘an occupier owes the same duty, the common duty of care, to all his visitors’. In s2(2) The common duty of care is to ‘take such care as in all the circumstances…is reasonable to see that the visitor will be reasonably safe for the purpose for which he is invited…to be there…’ The purpose of Chelsea’s visit is to experience the rides in the park. But it was not reasonably foreseeable that the premises will not be safe to use. The duty of care is for them to feel safe. This was breached as the risk was too high to allow visitors on a ride which has not been capably repaired. Due to her age, she is a vulnerable claimant. The knowledge of the occupier contrasted against the understanding of the nature of the danger due to being less skilled in that specialism.
The standard of care is that the park must check for anything wrong with the rides and immediately get it repaired. But due to the contractor’s negligent act, this may advantage the park to defend the foreseeable as the contractors were in control of the premises.
Under the 1957 Act, s2(4) (b) highlights that the park may not be liable for injuries suffered by Chelsea when it’s caused by the negligent act of independent contractors. Gearchange are a company specialising in repairing rides. The park entrusted the work of the contractor to repair the ride as it was a highly specialist job, making the park not liable for any injuries happening . It’s reasonably foreseeable that they are competent to know what they’re doing. But in replacing bolts with weaker ones shows that they did not perform competently or professionally , as they breached their duty on making it safe for the visitors of the premises by not double checking what they’ve done. The final requirement is that the occupier must check the work , similarly to Haseldine this job was technical and big for a less skilled occupier to inspect it, making it less reasonable to impose this requirement.
It’s not clearly shown if there were any warning signs to show Chelsea and Alan that the ride was not safe to use. The Nature of the risk was therefore not obvious.
However, if the occupier or contractors carried out a risk assessment, they would’ve been able to defend an action for damages. Due to no warning of the danger, the contractors are liable for Chelsea’s injuries. Even though the injuries happened on the occupier’s premises, the occupier had no legal authority to check the contractor’s mistakes. A Reputable contractor are covered by their own insurance for negligent Acts meaning Chelsea can get compensation for her injuries.
Trespass specifies ‘interference’ to the person and can only be committed by either: Assault, Battery or False imprisonment. It is actionable per se, reinforcing that Idris doesn’t need to show that damage has been caused, but it’s important to show that trespass did occur.
Bella is guilty of assault, intentionally causing another person to ‘apprehend the infliction of immediate, unlawful, force’ on them. There was no physical contact with Idris which made him suffer any harm but he may have thought that some harm may occur.
For this claim to be successful, intent from Bella to make Idris fear and apprehend that an action will happen is needed. Bella ‘waved her fists at Idris’, causing reasonable worry of an imminent battery. Like in Blake v Barnard , even though she did not try to punch or harm him, the Act became an assault because Idris could claim he felt anxious because she only intended it to be at him only and for it to show power and authority.
Her choice of words; ‘I’ll kill you, I’ll kill you’ must be committed with physical behaviour to total to an assault . Like in Read v Coker , an additional physical threat with words leads to an assault; rolling their sleeves and waving fists . Conflicting to Tuberville v Savage where the threat wasn’t enough consequently negated assault, Bella physically used her fists with the words which amounted to the claimant scared for his life. The use of the modal verb ‘will’ expresses the future and that she is certain that something will happen. The verb ‘kill’ reinforces that she is serious and violent, understandably putting Idris in fear of personal violence.
Then again, her claim can be defended by stating Bella is reacting to Alans and Chelsea’s death, built full of anger and grievance as this also caused her to be diagnosed with PTSD, which could also mean that she didn’t fully understand her actions and her mental state caused her to assault Idris. It could also defend herself against Idris’s breach of duty which he imposed on Alan on no consent given for the antibiotic which led to his death; battery. But this can then be defended by necessity’s , doctors acting in the best interests of the patient such as in Airdale v Bland.
The Mental Health Act 1983 guides Law for the removal of defendants suffering from a mental disorder.
However, Idris’s claim against Bella in trespass to the person can be successful as in legal terms the court most likely decide that she inevitably did assault him with a physical action and words. But it can also be defended by her mental state by the battery act that Idris caused on her husband which led her mental state to cause her actions and could be self-defending herself because she apprehended fear from him due to his actions. If the claim is won, huge amount of compensation can be granted to Idris if successful in tort.