What are the claims that Mark, Mary, Belinda, Adeel and Nisha have in the context of negligence?
Negligence within the United Kingdom predominantly comes under the purview of tort law. While no specific codifications exist, several precedents and case laws are prevalent that assist in the process of adjudication. Additionally, the “Law Reform (Contributory Negligence) Act 1945” also covers certain aspects in this regard.1
The law of negligence comprises of four major elements comprising of a duty of care, a breach of the duty, infliction of harm or damage due to the breach and proximity between the breach and the resultant harm.2
Based on the specifications of the case scenario, Mark found that his car would not start and telephoned the local garage. The garage picked up the car and offered a courtesy car, which at a later stage, was found to include malfunctioning brakes. Subsequently, Mark was unable to control the vehicle at a signal and crashed into Mary and her son, injuring them along with Mary’s mother Belinda, who suffered a broken leg. It is important to note that all the elements of negligence are sufficiently fulfilled within the scenario, thus imposing the liability of the same onto the garage owners.
Since the courtesy car was provided by the garage, it inherently falls under their duty of care to ensure that the car is fully functioning and without defects. However, the failure to check the brakes led to the accident, which could be deemed as an evident breach of duty. Subsequently, the resultant accident was an explicit harm that took place due to the breach of duty, which could have been prevented had the garage owners checked the brakes properly. The case of “Nettleship v Weston” is highly relevant in this regard.3 It established the concept of standard of care that should be exercised when engaging in the duty of care, based on the principles of foreseeability and reasonableness. Furthermore, the case of “Donoghue v Stevenson” is also relevant as it is still considered to be the most important case within matters of negligence.4 The general principles as to how individuals should maintain a certain duty of care when dealing with other agencies and individuals was established within the precedent.
The test of objectivity has also been spoken about to a large extent. While determining the breach of duty, courts typically rely on the aspect whether the duty of care shows was reasonable and whether the resulting harm or damage was foreseeable. The case of “Blyth v Birmingham Waterworks Company” is relevant in this regard, as it was the founding case law that established the objective test when determining the liability and its imposition incases relating to negligence.5 Adjudicated by the highly reputed sir Edward Hall Anderson, the case law established how omission to maintain a duty of care would inherently lead to the imposition of a negligent liability. Prudence and reasonableness were the key highlights within the judgment, both of which are evidently missing within the case involving Mark and the courtesy car provided by the garage owners. The cases of “South Australia Asset Management Corpn v York Montague Ltd” and “Banque Bruxelles Lambert SA v Eagle Star Insurance Co Ltd” are relevant in this regard as they led to a certain degree of solidification within the remoteness test.6
The principle of remoteness is also relevant within the case scenario, especially when considering the significance of causation within negligence case laws in the United Kingdom. One of the most widely relied upon tests to determine the chain of causation and the proximity within the breach of duty and the resultant harm is the ‘but-for’ test.
Moving onto the next portion o the case scenario, Belinda is depicted to have been taken to a hospital. Upon inspection, the examining doctor failed to notice the internal bleed and eventually had to amputate Belinda’s leg. Furthermore, it has been mentioned that if the internal bleed was noticed and dealt with in a pre-emptive manner, the amputation would not have been necessary. The facts of the matter are aligned with the concept of medical negligence, often referred to as medical malpractice within the context of the United Kingdom. It is important to note that causation can be relatively difficult to prove within medical negligence cases, and certainly takes ample amounts of time as well as external medical expertise. The case of “Bolam v Friern Hospital Management Committee” is relevant in this regard as it led to the establishment of the Bolam Test, which is widely used even till date.7 The principle established through the precedent was that doctors would not be deemed negligent if they reached the standard of a responsible body of medical opinion while dealing with the patient. However, this was certainly not the case involving Belinda, as the doctor had failed to notice the internal bleed and had to amputate Belinda’s leg. The doctor, in this case, would be held as negligent and the liability of professional negligence would be imposed upon him in a prima facie manner.
Based on the analysis, Mark, Mary and Belinda would have merit in their claims for negligence on the part of the garage owners for providing a faulty vehicle that eventually led to the accident. Additionally, Belinda would also find merit in her claim for professional negligence on the part of the doctor as a result of which her leg had to be amputated.
The scenario then presents two individuals, Adeel and Nisha, who were witnesses to the accident. Adeel was driving his car in the opposite direction and upon witnessing the accident, suffered from a sense of anxiety that led to him taking three months off from work. Similarly, Nisha also witnessed the collision from her flat window roughly 100 meters down the street. However, she had turned away when the crash took place, but suffers from flashbacks of the incident as a result of the collision.
The issue in question ir primarily related to the concept of psychological injury that occurs from the negligent actions of third parties.8 The major criteria in this regard typically include two components, with the first being that the injury must be recognized medically and the second being that the psychiatric injury would have to be foreseeable in a reasonable manner.9 Additionally, the proximity of the primary and secondary victims, as they are typically referred to, is also an important area of consideration. Adeel would have met all the elements necessary to claim compensation for suffering from psychiatric injury as anxiety is a medically recognised injury within the United Kingdom and he was physically present at the scene of the accident. Furthermore, the shock rule would also have been fulfilled, as established in the case of “Jaensch v Coffey” 10 and relied upon in several cases including the matter of “Taylorson v Shieldness Produce Ltd.”11 Moreover, Adeel was also in danger of physical injury considering the time and the location of the accident involving Mark, Mary and Belinda, which further negates the requirement of the court to establish the principles of reasonableness and foreseeability within Adeel’s claim. Th case of “Page v Smith” is relevant in this regard, where the principle of distinguishing between primary and secondary victims was established.12
However, Nisha would be considered as a secondary victim and whether her claim for compensation due to her suffering from flashbacks would be held valid relies solely on the exercise of judicial discretion by the courts of law. It is important to note that compensation claims for secondary victims have been upheld, based on the severity of the situation and the impact that the incident would have in a reasonable manner. The case of “Young v Charles Church (Southern) Ltd” is relevant in this context, as it led to the court awarding damages for watching a work colleague die even through the claimant was not in danger himself.13 However, since Nisha turned away when the accident took place, it would certainly weaken her claim to some extent.
In conclusion, Mark would be able to claim for compensation for any physical injury along with the mental trauma that he suffered from due to the provision of a faulty courtesy car.
Mary and Belinda would be able to claim for compensation for the accident since it could have been prevented had the garage owners checked the car’s braked prior to its provision. Additionally, Belinda would be able to claim compensation for her amputated leg and other psychiatric injuries as a result of professional negligence on the part of the doctor.
Adeel would be able to claim compensation for the anxiety he suffered from the collision along with the 3 months that he had to take off from his work as he would be considered a primary victim. Nisha’ claim for compensation could be held, but it would rely on the process of adjudication in terms of the degree of compensation since she had turned away when the collision took place in actuality.
'Law Reform (Contributory Negligence) Act 1945' (Legislation.gov.uk, 2020) <http://www.legislation.gov.uk/ukpga/Geo6/8-9/28/contents> accessed 3 May 2020
(1856) 11 Ex Ch 781
(1984) 155 CLR 549
 UKHL 100
 1 WLR 582
 2 QB 691
 PIQR P329
 AC 155
 UKHL 10
 39 BMLR 146
Goudkamp J, 'BREACH OF DUTY: A DISAPPEARING ELEMENT OF THE ACTION IN NEGLIGENCE?' (2017) 76 The Cambridge Law Journal
Vallano J, and McQuiston D, 'An Exploration Of Psychological And Physical Injury Schemas In Civil Cases' (2018) 32 Applied Cognitive Psychology
'Claiming Compensation For Psychological Injuries | Claims Action' (Claimsaction.co.uk, 2020) <https://www.claimsaction.co.uk/claiming-compensation-for-psychological-injuries/> accessed 3 May 2020
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