‘The threefold test itself provides no straightforward answer to the vexed question of whether or not, in a novel situation, a party owes a duty of care…It seems to me that the outcomes (or majority outcomes) of the leading cases cited above are in every or almost every instance sensible and just, irrespective of the test applied to achieve that outcome. This is not to disparage the value of and need for a test of liability in tortuous negligence, which any law of tort must propound if it is not to become a morass of single instances. But it does in my opinion concentrate attention on the detailed circumstances of the particular case and the particular relationship between the parties in the context of their legal and factual situation as a whole.’ Lord Bingham in Customs and Excise Commissioners v Barclays Bank PLC (2006) UKHL 28 Critically evaluate this statement with reference to appropriate legal authorities.
Breach of Duty
In order for the defendant to be liable for negligence, the first stage is to show that there is a duty of care owed to the claimant. Once this is done, it must then be shown that the defendant breached his duty. Brach of a duty of care essentially means that the defendant has fallen below the standard of behaviour expected in someone undertaking the activity concerned. In Blythe v Birmingham Waterworks Co, Alderson B stated that “Negligence is the omission to do something which a reasonable man, guided upon these considerations which ordinarily regulate the conduct of human affairs would do, or something which a prudent and reasonable man would not do.” This is a question of fact.
Therefore, two questions arise from this statement:
1. How high is the standard of a reasonable person? Should the courts always apply the reasonable man test objectively, or can they take into account subjective elements?
2. How do we determine what a reasonable man would do?
Introduction This question requires an examination of the tort of negligence, specifically in relation to establishing the necessary causative links to permit the recovery of damage. A successful claim in the tort...
Problem scenario: Molly is a single mother. She takes her daughter Rhonda (a two year old infant) to a local playground. While lighting a cigarette, Molly starts talking with another young parent, Dilbert. Molly is distracted by Dilbert's good looks and gritty charm. Meanwhile, Rhonda starts to wander over to the road.
Dilbert notices a possible catastrophe and rushes out after Rhonda. Dilbert just manages to save Rhonda from being run over by Bob, who is driving a van within the speed limit and quite safely. However, Dilbert has too much forward momentum and collides with Bob's van. Dilbert is seriously injured. Bob skids off the road and crashes into some playground equipment. Luckily, no children are using the equipment.
Laura, driving at speed behind Bob sees the above-related events and put her foot down hard on the brakes. Laura's car skids on an oil slick and crashes into a tree. Some distance behind the tree was Leonard. Leonard thought that Laura's car might hit him and he started running away screaming 'oh Lord, don't take me now!' Leonard has an underlying personality disorder and develops a paranoid fear of going out into the street. As a result he loses his job and his livelihood.
The accident involving Leonard is witnessed by Sherry, Rhonda's grandmother, who is also at the park. Sherry suffers from a brief fright, but believes that she will be alright. However, she later develops post-dramatic stress disorder as a result of this event, combined with the news that Rhonda barely escaped serious injury. She had not seen the incident involving Rhonda herself because she hadn't busy setting out the picnic lunch.
Identify any action available in the tort of negligence and analyse the elements of the tort accordingly.
In Glasgow Corporation v. Muir  2 A.C. 448, Lord Macmillan said:
“The standard of foresight of the reasonable man is in one sense an impersonal test. . . Some persons are by nature unduly timorous and imagine every path beset with lions; others, of more robust temperament, fail to foresee or nonchalantly disregard even the most obvious dangers. The reasonable man is presumed to be free both from over-apprehension and from over confidence.”
In the light of this statement, and with reference to decided cases, examine the factors to which the courts commonly have regard in determining the standard of care in negligence.
In order to establish negligence, it must be shown that the defendant’s breach of duty caused the damage suffered by the claimant. There are two stages to establishing causation:1. Factual Causation....
Problem Question: Jock has bought a new motorcycle, a 1,450cc Harley Davidson, having traded in his 50cc scooter, and decides to go and show his friend, Julia. She is very impressed with the large and shiny bike and asks for a ride, but unfortunately, neither she nor Jock have a crash helmet for her; she is insistent, and Jock finally gives in and, against his better judgement, agrees to let her ride pillion.
Once on the road, however, he starts to speed up and is oblivious to her asking him to slow
down as the wind makes it difficult to hear her. They reach a stretch of road where there are a lot of trees and bends, but Jock does not slow down as they come round a blind bend at
Cotterell Farm, where the farmer, Mr Cotterell, is crossing the road with his small
Jock hits the brakes, swerves, and misses them, but crashes through the drystone wall. Julia
is thrown from the bike and suffers severe head injuries and bruising to the body, Jock is
only bruised. Mr Cotterell and Nick were unhurt, however Mrs Cotterell rushes out of the
farmhouse, sees the bike and runs towards it, thinking her grandson and husband have been
injured. As she crosses the road without stopping to look, a car, being driven at nearly 70
mph by Penny, swerves but cannot avoid her and she is killed instantly. Penny's car runs
into a wall, is badly damaged and she suffers a broken arm.
Advise the different parties as to their tortious liabilities.
The law of negligence is a tort which generally exists to provide compensation if someone isharmed by another person’s wrongful act or omission. The preliminary criteria still used today was established...
ADVOCACY SUMMATIVE ESSAY - WRITTEN SUBMISSION
IN THE COURT OF APPEAL (Civil Division)
B E T W E E N:
IGNITE FIREWORKS PLC
ADVOCACY SUMMATIVE ESSAY - WRITTEN SUBMISSION 67%
1. SUMMARY OF FACTS
Jack and Jill Hill was a married couple but have had marital problems. After months of disagreement Jack moved out of the family home in July 2014 and into a rented accommodation. Jack maintained his job at Ignite Fireworks PLC.
On 03/10/2014 due to an electrical fault at Ignite Fireworks PLC a number of fireworks in containers detonated resulting in an explosion. Jack who was completing a nightshift was trapped in the premises.
Mr Spratt the site manager raised the alarms, contacted emergency services and contacted Jill who was still Jack’s emergency contact.
Jill initially assumed that Jack was involved in a minor incident. Arriving on scene at 7am, she witnessed numerous fire engines and ambulances. At the emergency triage area Jack had received emergency treated and was covered by a blanket, only his singed hair, blackened face, burnt hand and a tube inserted into his throat was visible. Witnessing this cause Jill to break down and weep and shake uncontrollably. Jack was transferred to Midlands Hospital where he stabilised. Jill remained at his side for the entire week before he was discharged and returned to his family home.
Subsequently Jill brought about a claim for negligently inflicted psychiatric harm as she displayed Post-traumatic stress disorder and suffered frequent flash backs of the scene.
The Trial Judge Lean found the following facts, (i) Jill had suffered a medically recognised psychiatric disorder from nervous shock, (ii) When Jill first saw Jack, he was in a controlled state and was not being treated, (iii) Jack and Jill subsequently divorced.
Judge Lean found that Jill could recover as secondary victim on the grounds that, as spouse it was clear that she had a close tie of love and affection with Jack and arriving at the factory Jill had witnessed the immediate aftermath and was therefore proximate to the accident in time and space.
The case is being appealed by Ignite Fireworks PLC in the court of appeal.
2. GROUND OF APPEAL
As there was a two and a half hour time delay between the time of the accident and Jill seeing Jack, having been treated and in a controlled state, it cannot be said that Jill had witnessed the immediate aftermath of the accident.
3. APPELLANT OUTCOME
The appeal to succeed.
4. RESPONDENT OUTCOME
The appeal to be dismissed.
TORT LAW ASSIGNMENT 2
Selma visited the firm yesterday to request advice. Yesterday she parked her car in
front her neighbours house. She was not obstructing any driveways and there was
certainly nothing to prevent her from parking there. The following day Selma
observed that a wheel clamp had been placed on her car. It was accompanied with a
note which stated that the wheel clamp would only be removed on the condition that
she did not park there again. Selma also believes that her neighbour has stolen plants
from her garden and put rubbish on her land. Prepare a report on the relevant legal
issues for your senior partner
Discuss the tortious liability of Selma's neighbour considering in particular the
offences of trespass.
Mr Mohammed if also requesting advice. He recently bought a house and was
informed by the surveyor that it was structurally sound. It now transpires that the
house is subsiding. Mr. Mohamed purchased the house without the aid of a mortgage
so he personally instructed the surveyor. Write a letter to Mr. Mohammed making
sure it includes consideration of the following points.
(a) Could Mr. Mohammed claim for negligence?
(b) Is there any other area of law other than tort at which he can make a claim? If so
advise which course of action he should take providing reasons for your answer.