The conditions for a claim in negligence are: 1) there must be a duty of care, 2) there must have been a breach of this duty, and 3) the breach must have caused the loss.
First I will deal with the claim available to Rex for property damage. The neighbourhood principle described by Lord Atkin in Donoghue v Stevenson shows that a duty of care is owed to people who are so closely and directly affected by the act, that the wrongdoer reasonably ought to have reasonably foreseen their loss. The Caparo tripartite test for duty of care owed is that the loss or injury must have been reasonably foreseeable; there must have been a close degree of proximity; and it must be fair, just and reasonable to impose a duty of care. Rex would have a claim against Donald for property damage: as there was a duty of care owed to Rex, as the tripartite test is satisfied, and as it can be seen in Marc Rich v Bishop Rock Marine, the test applies irrespective of the nature of the harm, and thus includes property damage.
The breach of a duty of care is satisfied by 3 conditions: there must have been a voluntary act/omission, the consequences were reasonable and probable by the standard of a ‘reasonable man’, and the act constitutes negligence. Donald breached his duty of care by intentionally breaking the speed limit and instructing his team to use less load-retaining straps than is standard in the industry, a breach which ultimately caused the foreseeable property damage. Although Donald intentionally broke the speed limit, it could be said that he was negligent in the supervision of the use of load-retaining straps, and thus he breached his duty of care. Factors used to determine the standard of a reasonable person include the probability of injury, the practicality and cost of precautions, and the practice of others in the industry. When using a balancing test, it can be clearly seen that driving at the prescribed speed and using more load-retaining straps would have greatly decreased the probability of loss without being impractical or particularly costly. Donald also neglected to take precautions usual in the industry, proving that he breached his duty of care to Rex.
Delict distinguishes between two types of causation- factual and legal. Factual causation can be proved by using either the ‘but for’ test or the principle of material contribution. In McWilliams v Arrol, an employee had persistently abstained from wearing a safety belt at work, and although at the time of the injury there were no safety belts available to him, it was found that the employer was not liable, as the employee would likely not have used a belt anyway, fulfilling the ‘but for’ test. Although factual causation is necessary for a delictual claim, it is not solely sufficient, as legal causation is also needed. The legal cause is the dominant cause of the loss. In this scenario, the breach of the duty of care of Donald clearly caused the property damage, and thus Rex would have a successful claim in negligence for property damage against Donald.
Next I will deal with the claim available to Kelly-Anne, where the requirements for a claim in negligence are also satisfied. Donald owes other road users a duty of care, and he breached this duty by breaking both the speed limit prescribed by his employer and the national speed limit. This breach together with the negligent use of load-retaining straps caused the load to crash into Kelly-Anne’s car, making Donald liable. However, with Kelly-Anne there is another aspect to consider, which is the fact that she was driving too close to the lorry at the time of the crash. This means that Donald could potentially claim that her action constituted a novus actus interveniens. However, this would be unlikely to succeed as the crash would most likely still have occurred had she kept a further distance from the lorry. Donald could then claim contributory negligence as a partial defence. If successful, this defence would mean that damages would be reduced by a percentage depending on the extent of contributory negligence found by the court under the Law Reform (Contributory Negligence) Act 1945. Kelly-Anne would therefore have a successful claim in negligence against Donald for the damage to her car and damages for personal injury, although these damages might be reduced due to her contributory negligence.
Both Rex and Kelly-Anne would most likely have successful claims in negligence against Donald, and since Donald is an employee of E-Z-Move, the company could be sued for damages through vicarious liability. The conditions needed to satisfy a claim under vicarious liability are: 1) there has to be an employer-employee relationship, 2) the employee must be at fault, and 3) the employee must have been acting within the scope of his employment. There also has to be a mutuality of obligations and control. Donald is an employee of E-Z-Move, he was at fault for the property damage relating to Rex and for the injury and property damage relating to Kelly-Anne, and there was mutuality of obligations as he had a duty to carry out the task assigned to him (namely to supervise loading and drive the removals lorry to Aberdeen), while being paid in return. The only condition which is questionable is whether Donald was acting within the scope of his employment at the time of the accident. The case of Williams v Hemphill shows that as long as the main aim of the action was to complete the task of employment then it is within the scope. Even though Donald was speeding and had failed to instruct the other employees to use the industry standard of load-retaining straps, the aim was to fulfil his contractual obligation of moving the contents of the lorry to Aberdeen and thus this was within the scope of his employment. The test under Kirby shows that an employer is still liable for his employee’s actions if he carries out the work he is authorised to do but in an unauthorised way. Although Donald was breaking the speed limit and hadn’t secured the contents of the lorry properly, he was still carrying out the job he was assigned, therefore E-Z-Move could be held vicariously liable for his actions.
A claim raised by Hillary would be much less likely to succeed than those of Rex and Kelly-Anne, as a duty of care would be more difficult to prove due to the loss being an indirect effect of the wrongful act. Under the tripartite test, there has to be a close degree of proximity, and it must be fair, just and reasonable to impose a duty of care onto the defendant. In Hillary’s case the loss would probably be too remote in order for her to have a successful claim against Donald/ E-Z-Move. It could be argued that the police closing off the road constituted a novus actus interveniens by a third party, however this would be unlikely to be upheld as the human action was not unreasonable or extraneous following the crash. Although it would have been foreseeable that there would be delays due to police closing the road after the accident, it would not be reasonably foreseeable that an ambulance carrying a human organ needed for a transplant would be among the delayed traffic thus creating a defence. The eggshell skull rule could be used to argue that in this case of personal injury it did not have to be foreseeable. However, I believe the court would find this loss too remote and so Hillary would not have a successful claim in negligence.
Lastly, Ashton would not have a successful claim in negligence as he suffered pure economic loss, and the exclusionary rule in Spartan Steel means that there is no liability in negligence for pure economic loss. Also, Ashton could have taken other steps to put in his bid. For example he could have put in the bid over the phone, and so this loss would be too remote to satisfy a successful claim in negligence.
In conclusion, Rex and Kelly-Anne would likely have successful claims in negligence against E-Z-Move under vicarious liability for the property damage and the personal injury they sustained. E-Z-Move would then be able to recover damages from Donald for breaching his contractual obligation, as he went against both a direct instruction by driving at 75mph instead of 55mph, and an industry standard by using too few load-retaining straps when loading up the lorry.