In v McMullan (1934), stated that “in strict legal

In this paper, the scenario given is assessed using the torts of negligence. Negligence is briefly explained before being applied to the situation in order to find the defendants that are liable under the torts. Rufus caused a fire in Mack’s Automobile (MA), as he ran out of the building he collided with Brenda’s van because she was distracted by her phone. This resulted in Rufus’ hip and leg breaking. At Bradfax hospital they failed to diagnose, the former, the late diagnosis meant that Rufus would have to live with a limp for the rest of his life. But, there was a 60% chance that even if, the hip injury was diagnosed earlier, Rufus would still have had a limp in his step. Karl, Rufus’ workmate was burnt in the fire but at the hospital, he was given medicine he was allergic to and had to be admitted. During the fire, all the employees of MA had to evacuate the building, as a result, the wage packets were stolen. These issues raised will be discussed in relation to the tort of negligence, on a claimant by claimant basis, in order to find which defendants are liable and what defences are available to them.Lord Wright in Lochgelly v Iron Co. v McMullan (1934), stated that “in strict legal analysis, negligence…connotes the complex concept of duty, breach and damage thereby suffered by the person to whom that duty was owing.”  In his definition of negligence, the three core elements of the tort of negligence were expressed. Thus, to make a successful claim in the tort of negligence, there needs to be; a legal duty to take care owed by the defendant, a breach of this duty by the defendant and damage suffered by the claimant at the result of the breach, which the courts do not believe to be remote. However, the defendant may still avoid liability if he can raise a defence or the claimant may receive less compensation.The first claimant is Rufus, his claims are being brought in relation to a potential tort of negligence by Brenda and his attending doctor in Bradfax hospital. The first criterion is to establish that these defendants owed Rufus a duty of care. In common law, where the damage is physical injury, such as in Rufus’ claims, there are established categories of relationships under which a duty of care is automatically owed. Road users, as well as Doctor to patient relationships, fall within these established categories that give rise to a duty of care. Thus, both Brenda and the Doctor owe Rufus, a duty of care.Next, the courts may analyse whether this duty of care has been breached. This means that the defendant’s action has fallen below, the standard of care the law requires. In order to determine the standard of care the courts would establish and if the defendant has reached this standard, it will consider how the defendant should have behaved in the circumstance and how the defendant actually did behave in the situation. The determination of a breach usually turns with the particularities of a case.Following Lord Atkin in Donoghue v Stevenson, the courts expect that the defendant should act “reasonably” given the situation at hand. Thus, the question is, what would a reasonable man in the defendant’s position have done? In Hazell v British Transport Commission (1958) , the courts held that if the defendant’s action or failure to act is contrary to what the reasonable man would have done in the same position as the defendant then, there is a breach. In Nettleship v Weston (1971) , the Court of Appeal held that the standard of care for all drivers is that, “to be expected of an experienced, skilled and careful driver” . Thus, this standard was expected of Brenda. However, it is evident that she has fallen below this standard of care, as she was on her phone while driving. Notably, the burden of proof is on Brenda to prove that she was not negligent, as is expected in road traffic accidents, following S.11 of the Civil Evidence Act 1968 . Brenda’s action was not one that a reasonable man would have done and therefore she is in breach of her duty to care for Rufus.The courts sometimes modify the reasonable man test to take into account certain characteristics of defendants such as professionals like Rufus’ doctor. The law requires that these professionals, deal with people with a level competence expected of an ordinary person in that profession. Baroness Hale in Arthur JS Hall & Co v Simons (2002) held that the onus is on the claimant to prove that the mistake is one that no reasonably competent member of the profession would have made . Thus, Rufus’ counsel has to prove that no reasonably competent doctor would have failed to diagnose his broken hip, taking into account that the defendant works in an environment where decisions and exercise of judgments have to be made in difficult and constraining environments. As was particularly, the case here, Rufus was in an emergency situation and it is clear why the doctor may have failed to detect that Rufus’ hip was also broken. Rufus’ doctor’s failure to diagnose one out of the two injuries, Rufus had suffered is an error that any ordinary doctor could make. Thus, he has not fallen below the standard of care expected of him. Therefore, there is no breach of the duty to care. After establishing that there is a breach of the duty of care owed to the claimant. Causation needs to be proved, in order to allocate responsibility for the damage. Causation is divided into factual and legal causation. Factual causation is worked out on a balance of probabilities and legal causation asks whether any of the potential causes should be seen as a cause in law.The factual causation test is used to prove that the defendant’s action caused the claimant harm. If it did not, then there is no liability for negligence. In order to establish factual causation, the claimant needs to prove, on a balance of probabilities, that the defendant’s breach of their duty to care, not their general actions, resulted in the harm suffered by the claimant. The question is; but for the defendant’s carelessness, would the claimant have escaped harm? But for Brenda’s actions, Rufus would have escaped harm, on the balance of probabilities, this is certain. Brenda’s failure to act as an experienced, skilled and careful driver is why Rufus has a broken arm and hip. Therefore, the factual causation criterion has been satisfied in regard to Brenda.Concerning, Rufus’ doctor, but for his negligent inaction, Rufus would still have had to live with a limp, as there was a 60% chance that the hip injury would have resulted in a permanent limp. Following the court’s decision in Barnett v Chelsea and Kensington Hospital Management Committee (1969) , the defendant will not satisfy the factual causation criterion and would not be liable for murder.Thus, only Brenda may go on to satisfy the legal causation aspect. This asks that the claimant to ascertain, the operative cause of the harm in law. It has two distinct tests, the first asks whether the harm was too remote a consequence of the defendant’s action and the other whether any subsequent event broke the chain of causation.The first test seeks to establish whether the defendant’s action was far removed from the harm the claimant suffered, was unforeseeable by the defendant. This is not the case, for Brenda, her actions were foreseeable. Any reasonable man would have foreseen the possibility of colliding with another road users, while they were driving negligently. Therefore, the remoteness test fails.The second aspect focuses on, whether there are any later intervening acts. For Brenda, she performed the sole negligent act and there is no novus actus intravenous to break the chain of causation. Therefore, causation has been fully satisfied and Brenda is liable under the tort of negligence, with none of the three defences open to her.Moving to the next claimant, Karl who is eligible to bring a case against MA. His counsel would start off by establishing whether they owe him a duty of care. The duty of care can be imposed on MA in respect of the actions of Rufus, although he is a third party. Lord Goff suggested that these duties may arise in a number of circumstances including a special relationship between, the defendant and the claimant and where there was a special relationship between, the defendant and the third party. MA is Karl’s employer thus it assumes responsibility for his safety.  Thus, it incurs a duty of care to Karl regardless of whether the damage was caused by a third party. This assumption of responsibility, increased the proximity between the claimant and the defendant, creating a relationship between them in which, foreseeability of harm became greater and justifies the creation of a duty of care owed by the defendant to the claimant. Additionally, Rufus is MA’s employee, thus it assumes responsibility for him and this close proximity between MA and Rufus, means that MA can be liable for Rufus’ negligent actions.Karl must establish whether this duty of care has been breached. Rufus is a professional thus the question is whether, the error that he made is one that an ordinary mechanic would have made?  In order to set the standard of care, a number of factors will be considered. The first, is the probability that the injury will occur. Rufus was welding in a garage with oil on the floor and flammable chemicals. This increased, the likelihood that a fire would happen and its unlikely that a reasonable mechanic would have continued welding in that situation. In Bolton v Stone (1951) , it is observed that increased likelihood of an injury occurring, meant increased probability that the defendant is liable for failing to take the necessary steps.In Paris v Stepney Borough Council (1951) , the courts held that the greater the severity of the potential injury, the more likely the defendant would be held liable if the damage materialised. Rufus worked with highly flammable tools, a reasonable mechanic would have understood, how grave an error could be and would have been more cautious than he was. The car had been there for half an hour, which is enough time for a reasonable mechanic, to notice the oil streak.In Latimer v AEC (1953) , the cost of taking precautions was another consideration. It would have taken, no time to clean up the streak of oil that caused the fire. Rufus’ failure to take this minute precautionary step demonstrates his failure to meet the standard of care that a reasonable mechanic would have reached. In all of the considerations evaluated Rufus continues to fall below the standard of care expected, therefore it is apparent that he has breached his duty of care.The next step is to, prove causation. Factual causation is satisfied as but for Rufus’ negligent action, Karl would not have suffered the burns. The first test for legal causation, remoteness, is also satisfied because Rufus’ actions were one that any reasonable mechanic, could have foreseen. However, the chain of causation is broken by a later negligent act. Karl being injected with medicine he was allergic to, was not an act that was likely to happen as a result of Rufus’ negligence and therefore, following Home Office v Dorset Yacht co. (1970) , this qualified as novus actus intravenous, breaking the chain of causation and freeing MA from its liability.     MA employees’ wage packet was stolen during the fire. In establishing, whether they could recover their loss through negligence. First, the loss needs to be a pure economic loss, this is the only type of financial loss the tort of negligence covers. It is as a direct result of the harm caused by the negligent act. Second, a duty of care needs to be established in order to claim for economic loss. However, the courts normally do not impose a duty of care for a loss that is purely economic and Spartan Steel & Alloys Ltd v Martin (1972) , showed that a duty of care is only in reference to property damage that led to pure economic loss. Unfortunately, MA will also be unable to claim for losses as a result of damage to the building, because these fall under consequential economic loss, which is outside the ambits of the tort of negligence.The scenario gave rise to a number of issues which were assessed using the tort of negligence. Establishing liability for each defendant on a claimant-by-claimant basis. Rufus claimed against Brenda and his doctor, with the former being successful and the other failing as a result of the standard of care being met and factual causation. Karl brought claims against MA; standing in for Rufus, the third party. However, the claim failed due to novus actus intravenous. MA could not claim for pure economic loss because his loss did not meet the Steel  standard and the other loss was consequential, not pure.

x

Hi!
I'm Joan!

Would you like to get a custom essay? How about receiving a customized one?

Check it out