This question concerns liability from range
This inquiry concerns liability from a scope of different facets of the jurisprudence of civil wrong. A treatment including the countries responsibility of attention, breach, loss, and nervous daze amongst others will follow. Robert owes a responsibility of attention to claimants provided the three-stage trial founded in Caparo V Dickman [ 1990 ] 2 WLR 358 is satisfied. [ 1 ] Lord Bridge stated the trial should be as follows:
- Was the harm to the claimant reasonably foreseeable?
- Was there a relationship of sufficient propinquity between the suspect and the claimant?
- Is it ‘fair, merely and reasonable’ for the jurisprudence to enforce a responsibility of attention in the state of affairs? ( See application of this trial in Watson v British Boxing Board of Control [ 2001 ] QB 1134, Sutradhar v Natural Environment Research Council [ 2004 ] EWCA Civ 175 and Law Society v KPMG Peat Marwick ) .
If Jeremy’s household, Leanne and Steve satisfy the above trial, they will hold to besides turn out that the harm caused was non excessively distant. The Wagon Mound ( No1 } [ 1961 ] AC 388 established this rule. There is nevertheless no demand to anticipate how the harm occurred harmonizing to the ratio in Hughes V Godhead Advocate [ 1963 ] AC 837. Doughty 5 Turner Manufacturing Co. [ 1964 ] 1 QB 518 provided an alternate position. There is besides no demand to anticipate the extent of the harm harmonizing to the ratios in Vacwell Engineering V BDH Chemicals [ 1971 ] 1 QB 88 and Smith v Leech Brain [ 1962 ] 2 QB 405. [ 2 ]
I ) The harm to Jeremy was moderately foreseeable. Even if he did non hold a bosom job, he could hold died as a consequence of other hurts suffered because of Robert’s carelessness in replying the phone. In any instance Rogers argues [ 3 ] that it would be no defense mechanism for Robert to reason that Jeremy would hold suffered less hurt if had non had a weak bosom. For authorization, Rogers cites Dulieu v White [ 1901 ] 2 KB 669. Jeremy passes the 2nd phase of the trial, as there was both physical propinquity and neighbour propinquity in the Donoghue V Stevenson sense. [ 4 ] Arguably it is ‘fair merely and reasonable’ to enforce a responsibility of attention because Robert should hold been paying attending when drive.
By replying the phone Robert has breached a statutory responsibility, which prohibits utilizing a nomadic phone whilst drive(2003 No. 2695 ROAD TRAFFIC The Road Vehicles ( Construction and Use ) ( Amendment ) ( No. 4 ) Regulations 2003 s.110 ) . Robert will confront a successful breach of statutory responsibility action merely if Jeremy’s household prove that ; parliament intended that the ordinance confer a civil right or action. [ 5 ] There must be no common jurisprudence that provides a redress. [ 6 ] It is submitted that there isn’t in this instance. Jeremy is one of the category of people i.e. the populace, that Parliament intended to protect. [ 7 ]
The instance of Simmons v British Steel plc [ 2004 ] UKHL 20 supports the point that a claimant demand non anticipate the full extent of the harm to be to the full apt. Harmonizing to Lagden V O’Connor [ 2004 ] 1 AC 1061 this rule applies even when a suspect is susceptible to injury by virtuousness of his status. Jeremy’s household will be able to retrieve for the loss of the ?200,000 a twelvemonth wage. Recovery is limited by the Fatal Accidents Act 1976. Both the kids [ 8 ] and partner ( supplying she had been populating with him for the anterior 2 old ages ) autumn under the category of dependents. [ 9 ]
His partner can claim, [ 10 ] ?10,000 for mourning. In accessing the monetary loss amounts the tribunal will look at the chances of the dependents. [ 11 ] The instance of Dolbey v Goodwin [ 1955 ] 1 WLR 553 suggest the partner length of dependence will be seen as thirster. Even though recovery is limited under s.4 the household will be able to retrieve to the full if Jeremy was the chief breadwinner. Otherwise they would retrieve proportionally.
two ) Leanne has suffered from nervous daze as a consequence of the accident. The range of nervous daze has been held to include depression, harmonizing to Lord Denning in Hinz V Berry [ 1970 2 QB 40 and even a “Positive psychiatric unwellness harmonizing to Lord Bridge in McLoughlin V O’Brian [ 1983 ] 1 AC 410. The inquiry would be “Was this harm to her moderately foreseeable.” Arguably it would be as she has both witnessed the accident and provided foremost aid to Jeremy the victim. There is a specific trial that applies to Leanne because she has suffered nervous daze. This trial is set out in Alcock V Chief Constable of South Yorkshire [ 1991 ] 4 All ER 907. To be successful in a claim Leanne must turn out:
- She has suffered a recognizable psychiatric unwellness ; ( which she has )
- That harm was foreseeable ; ( besides established )
- That she had a relationship with the victim ;
- Proximity in clip and infinite ; ( The facts indicate that this point has been proven. Further as required by Lord Wilberforce in McLoughlin V O’Brian she was present at the scene. ) And
- Manner of perceptual experience
Harmonizing to the Page V Smith [ 1996 ] 1 AC 155 she would be a secondary victim because the facts do non bespeak that physical hurt to her was foreseeable. Alcock in any instance merely applies to secondary victims. [ 12 ] As Leanne is a savior she can retrieve, nevertheless as primary victim harmonizing to Chadwick v British Railways Board [ 1967 ] 1 WLR 912. The ratio in Wigg v British Railway Board [ 1986 ] 136 NLJ 446 besides backs up this propostion. Recovery is non nevertheless simply based on the hideous nature of the accident, harmonizing to Mcfarlane V EE Caledonia Ltd [ 1994 ] 2 All ER 1. [ 13 ] Leanne has satisfied the 5th point of the trial, holding experienced“a reaction to the immediate and dismaying impact”. [ 14 ] The Alcock instance and North Glamorgan NHS Trust V Walters [ 2002 ] EWCA Civ 1792, provide authorization for this point. On the facts she should be able to to the full retrieve.
Rogers argues that:
“The basic rule for the step of amendss in civil wrong every bit good as contract is that there should be damages in integrum” .[ 15 ]
He goes on to reason that in footings of personal hurt, this standard should be applied to the monetary elements of Leanne’s loss, peculiarly loss of net incomes. He cites British Transport Commission v Gourley [ 1956 ] AC 185 as authorization. [ 16 ] For her hurting and agony Leanne, harmonizing to Rushton v National Coal Board [ 1953 ] 1 QB 495 and H.West & A ; Son Ltd v Shephard [ 1964 ] AC 326,346, would be entitled to a fanciful theoretical compensation. Leanne has a responsibility to extenuate her losingss. [ 17 ] This means the tribunal will non present her compensation, where she would be adequately compensated as consequence of the accident. Salih 5 Enfield AHA [ 1991 ] 3 All ER 400 supports this point. Applied to Leanne’s facts, she should be put back in the place she would hold been, had she non witnessed the accident or provided aid to Jeremy.
three ) Steve has non suffered any physical hurt, nervous daze or harm to his belongings. His action comes under the header, “Pure Economic Loss” . Rogers says:
“The restrictive attack to economic loss is most marked in the jurisprudence of negligence.”[ 18 ]
The demand that belongings be damaged is illustrated in Spartan Steel & A ; Alloys Ltd v Martin & A ; Co ( Contractors ) Ltd [ 1973 ] 2 QB 27. Steve will happen it difficult to retrieve. His loss arises from the harm to the route, i.e. the belongings of another. The instance of Weller v Foot & A ; Mouth Disease Research Institute [ 1965 ] 3 All ER 560 held that a auction house could non retrieve where cowss infected negligently, forced the cancellation of the auctions. Steve could happen that he would non be able to retrieve. Rogers argues:
“If D negligently amendss the belongings of X, X can action D … but if C suffers loss because he is prevented from utilizing that belongings as a consequence of the Damage, C can non by and large action D.”
Steve’s instance besides does non fall under the exclusion to the regulation in Hedley Byrne v Heller [ 1964 ] AC 465, where recover was allowed on the footing of a negligent misstatement. Besides as there is no particular relationship between himself and the victims, he can non take advantage of the ratio in White V Jones [ 1995 ] 2AC 207 where a 3rd party was allowed to retrieve for pure economic loss. [ 19 ]
On the issue of amendss, although Steve is improbable to retrieve, if successful he could acquire contemptous amendss, if the tribunal has a low legal sentiment of his claim. [ 20 ] He would by and large be merely allowed to retrieve one time. [ 21 ] This regulation would use to all the possible claimants above. The rule of Restitutio in integrum, outlined above, besides applies to him. He would besides hold to extenuate his losingss. This could include set uping for his gifts to be delivered to customers’ places in visible radiation of the fortunes. On the farness of the harm, Steve would likely neglect to fulfill that the harm was foreseeable, as required by The Wagon Mound ( No1 ) [ 1961 ] AC 688.
Cooke, J, . “The Law of Tort” ( Pearson Education, 6th edition, 2003 )
McGregor, Damages ( 16ThursdayEdition )
Rogers, W, “Winfield & A ; Jolowicz on Tort” , ( London, Sweet & A ; Maxwell, 2002 )
Alcock V Chief Constable of South Yorkshire [ 1991 ] 4 All ER 907
British Transport Commission v Gourley [ 1956 ] AC 185Caparo V Dickman [ 1990 ] 2 WLR 358
Chadwick V British Railways Board [ 1967 ] 1 WLR 912
Corbett V Barking etc [ 1991 ] 2 QB 408
Dolbey V Goodwin [ 1955 ] 1 WLR 553
Donoghue V Stevenson [ 1932 ] AC 502
Doughty V Turner Manufacturing Co. [ 1964 ] 1 QB 518
Dulieu v White [ 1901 ] 2 KB 669
Greatorex V Greatorex [ 2000 ] 1 WLR 1790
Hedley Byrne v Heller [ 1964 ] AC 465
Hinz V Berry [ 1970 2 QB 40
Hughes V Godhead Advocate [ 1963 ] AC 837
H.West & A ; Son Ltd v Shephard [ 1964 ] AC 326,346,
Knapp v Railway Executive [ 1949 ] 2 All ER 508
Lagden V O’Connor [ 2004 ] 1 AC 1061
McCall V Abelesz [ 1978 ] QB 585
Mcfarlane V EE Caledonia Ltd [ 1994 ] 2 All ER 1
McLoughlin V O’Brian [ 1983 ] 1 AC 410
North Glamorgan NHS Trust V Walters [ 2002 ] EWCA Civ 1792
Page V Smith [ 1996 ] 1 AC 155
Rushton v National Coal Board [ 1953 ] 1 QB 495
Salih V Enfield AHA [ 1991 ] 3 All ER
Simmons v British Steel plc [ 2004 ] UKHL 20
Smith V Leech Brain [ 1962 ] 2 QB 405
Souter v P & A ; O Resorts Pty Ltd [ 1999 ] 2 Qd R 106
Spartan Steel & A ; Alloys Ltd v Martin & A ; Co ( Contractors ) Ltd [ 1973 ] 2 QB 27
Sutradhar v Natural Environment Research Council [ 2004 ] EWCA Civ 175
The Wagon Mound ( No1 } [ 1961 ] AC 388
Vacwell Engineering V BDH Chemicals [ 1971 ] 1 QB 88
Watson v British Boxing Board of Control [ 2001 ] QB 1134
Weller v Foot & A ; Mouth Disease Research Institute [ 1965 ] 3 All ER 560
White V Jones [ 1995 ] 2AC 207
Wigg v British Railway Board [ 1986 ] 136 NLJ 446
Ten V Bedfordshire C.C. [ 1995 ] 2 AC 633
2003 No. 2695 ROAD TRAFFIC The Road Vehicles ( Construction and Use ) ( Amendment ) ( No. 4 ) Regulations 2003 s.110
Adminstration of Justice Act 1982
Fatal Accidents Act 1976.