To extend the coverage of your essay, you could discuss the fact that in some cases the law’s emphasis on promoting care in individuals ignores the wider picture and can result in injustice to claimants. On the issue of risks unknown at the time when the defendant acted, you can point out that there is no liability for damage caused as a result of such risks, and
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this can be justified by the argument that defendants cannot be expected to take care to avoid risks which are not known by anyone to exist. You can then go on to explain that this approach can be unfair to the claimant, whose injury will often result in some advance in knowledge that benefits others (as in Roe v Minister of Health) yet remains uncompen- sated because of the law’s focus on individual fault.
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Adam is driving his car through a residential area. He suddenly realises that he is going to be late for an appointment. He increases his speed. Suddenly Ben, a ten-year-old boy, runs out into the road without looking, and because Adam is going too fast, he hits Ben and crashes into the front garden of a house owned by Bill. Ben is severely injured. Bill’s garden wall and front gates are destroyed.Bill is cutting the grass in his front garden at the time of the accident. He is unhurt but he is stunned when he witnesses the crash and sees the extent of Ben’s injuries. He is subsequently diagnosed as suffering from post-traumatic stress disorder.
Ben’s mother, Elizabeth, who is at work when the accident happens, is contacted by telephone by the child minder and informed that Ben has been taken to hospital for treatment following an accident. She visits him in hospital that evening. A few weeks later, Elizabeth suffers a nervous breakdown.
Advise Adam as to who he might be liable to in negligence.
In a problem question like this, your answer will be clearest if you take each potential claim in turn, and work through the elements of negligence (duty of care, breach, and damage, plus causation, remoteness and any defences) as they apply to that claim. Ben’s case is fairly straightforward: it is well established that motorists owe a duty of care to other road users, and that in going too fast, Adam was falling below the standard of a reasonable driver, and therefore in breach of that duty. Damage is also clear as we know Ben was seriously injured, and clearly Adam caused this. The main issue here then is whether Adam may have a defence, because Ben could be considered contributorily negligent in not looking as he crossed the road. You should refer to the case of Gough v Thorne on contributory negligence by children. Regarding Bill, there are two possible claims, one for the damage to his property and the other for his post-traumatic stress disorder. With regard to the property, do not be tempted to think that this is a case of economic loss. Although it will cost money to repair the wall and gates, this is a straightforward case of property damage, which falls under the same test for a duty of care as personal injury, the Caparo test (see p. 23). You need to consider the issue of remoteness of damage here, and explain that the test is whether the damage was a reasonably foreseeable result of Adam’s breach of duty.
Bill’s post-traumatic stress disorder would be considered a recognisable psychiatric injury, so the test of duty of care here is the one established in White. Applying this test to Bill, and referring also to Bourhill v Young, you can explain that there will be no duty of care because he was merely a bystander to the accident (see p. 45), and if there is no duty of care, there is no liability.
Elizabeth’s claim is also for psychiatric injury, so again, the test is the one laid down in
White. You need to apply the three White elements (nature and cause of the injury, class
of person, proximity to the accident) to her situation, referring to the cases of McLoughlin,
Summary of Chapter 2
Summary of Chapter 2
Negligence has three main elements:
● a duty of care;
● breach of the duty;
● damage caused by the breach. DUTY OF CARE
Duty of care is a legal concept which dictates whether one party can be liable to another in negligence. The test for a duty of care has varied over the years, but the current main test comes from Caparo v Dickman (1990):
● Is the damage reasonably foreseeable?
● Was there a relationship of proximity between claimant and defendant?
● Is it just and reasonable to impose a duty of care? The test has been modified for cases which involve:
● economic loss;
● psychiatric injury;
● omissions;
● acts of third parties;
● special groups.
Duties of care: economic loss
Cases involving pure economic loss use a duty of care test developed in Hedley Byrne v
Heller (1963), which requires:
● a ‘special relationship’ between the parties;
● a voluntary assumption of responsibility by the defendant;
● reliance on that advice;
● that it was reasonable to rely on the advice.
Recent cases have allowed liability without reliance, in limited situations.
Problems with the law on economic loss
● too few/too many restrictions;
● overlap with contract law;
● lack of clarity.
Duties of care: psychiatric injury
The initial duty of care test for psychiatric injury cases contains two elements:
● Is there a recognised psychiatric injury?
● Was the claimant:
● physically injured as well as psychiatrically (a primary victim)?
● in danger of physical injury (also a primary victim)?
● a witness to the incident in some way while not themselves in physical danger (called a secondary victim)?
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