A defendant and claimant. In Karl and Mack’s Automobiles

A successful claim in the tort of negligence requires three criteria to be met; firstly, whether or not the claimant owed a duty of care to the defendant; secondly, was that duty breached by the defendant’s actions or omissions? And lastly, whether there was a causal link between fact and law and the remoteness of damage inured. There are various claimants in this problem question; they will each be considered in turn. Establishing Tortious Liability: Karl (Claimant) v. Mack’s Automobile (Defendant) A defendant will be held liable for the tort of negligence if the claimant is, successfully, able prove the three core criteria. Those criteria being:1. Establishing a duty of care owed by the defendant2. Establishing a breach of that duty of care3. Ascertaining the factual causation and remoteness of damageA duty of care is owed to the defendant if it meets the two criteria established in the seminal case of Donoghue v Stevenson 1932 by Lord Atkin. Those requirements being; (one) reasonable foresight of harm by the defendant and (two) sufficient proximity of relationship between the defendant and claimant. In Karl and Mack’s Automobiles circumstance, there is already an established duty of care as there is an employee/ employer relationship. The test for a breach of duty is an objective one, the standard of caring (by the defendant) is that of a reasonable man.  Two fundamental questions need to be answered here, (1) What is the applicable standard of care? And (2) did the defendant meet that standard? To answer the former, factors affecting the standard of care need to be explored. There are special characteristics of the defendants that need to be taken into account to determine the applicable standard of care.  Mack’s Automobiles is a garage with employees and a customer base. Hence it can be argued to be a professional place of business. Following the Bolam test,  a skilled person in the mechanical field should be held to a standard of care required for a reasonably competent person in that field. Whether or not the defendant met the standard is depended upon the relevant facts. These facts indicate that the defendant did not take reasonable precautions to minimise the risk, when they allowed cars, which have been in an accident, to enter a premises with open flames without being properly inspected. As such, according to the principle in Latimer v AEC, the defendant, in failing to take precautions has breached the required duty of care. Lastly, the two-part test to determine damage is one of factual causation and causation in the law and remoteness. To begin with, it needs to be proven that ‘but for’ the actions of Mack’s Automobiles Karl would not have sustained his injuries. An argument here can be made for Mark’s Automobiles as they did not directly cause Karl’s injury, rather it was sparked by Rufus’s welding torch. This asserts that Rufus (a third party) actions were Novus actus interveniens, breaching the chain of causation. However, had this argument been feasible it would have eliminated liability right from the beginning as the general rule is that there is no duty of care required for an omission. However, there is an exception to the rule due to the nature of the relationship between Karl and Mack’s Automobiles being that of an employer and employee. Thus, Mack’s Automobiles can still be held to have vicarious liability for Rufus’s actions. Consequently, the sequence of events was a natural and probable consequence of the negligence and therefore a reasonable foreseen result. Now for causation in law or remoteness of damage to be proven it needs to be ascertained how much of Karl’s loss should be attributed to Mack Automobiles.  According to the rule in The Wagon Mound (no.1) remoteness of the damage is dependent upon reasonable foreseeability of damage. The welding material which emits sparks in proximity to petrol whether on the ground or in the cars qualifies as a reasonable foreseeability regardless of the unusual chain of events that caused this particular circumstance to arise.  Therefore, given the fact that all three core criteria have been met Karl can secure an action of negligence against Mack’s Automobiles. Mack’s Automobile may choose to use the contributory negligence defence since all three criteria have been established. Rufus (Claimant) v Brenda (Defendant) Brenda owes Rufus a duty of care due to the established principle that a road user owes a duty of care to other road users, in correlation with the’neighbour principle’. To bring an action of negligence Rufus must prove that he was owed a duty which was breached and that damage has arisen as a result of that breach of duty. According to the two-prong test to establish a breach of duty, Brenda owes Rufus a reasonable standard of care in accordance with the reasonable man principle. According to Blythe, a reasonable person is one who “guided upon those considerations which ordinarily regulate the conduct of human affairs, would do…”.  One could reasonably argue that a texting in driving goes against regular form of conduct. Furthermore, as a qualified driver, Brenda is held to a standard of competency. Thus, Brenda breached her required duty. Moving on to causation, up until Rufus enters the hospital for the first time, all injuries are a result of the positive act by Brenda. However, in the end, Rufus is left with a permanent limp. The ‘but for’ test can help eliminate those factors which could not have had a causal effect. Was there a break in causation by the doctors at the hospital? According to the rule in Cork v Kirby Maclean Ltd.since the limp was a result of the initial injury and not the doctor’s potential negligence, there is potentially no new intervening act which broke the chain of causation.  Furthermore, on the balance of probabilities since the injury was 60% likely to occur regardless of the delayed diagnosis one can reckon the high likely hood of no break in causation.  Thus, ‘but for’ the defendant’s carelessness the claimant would have escaped to loss on the balance of probabilities. Furthermore, Brenda cannot show that the damage caused by her breach was too remote from the potentially foreseeable consequences of her negligence because the damage was a result of her positive act. Rufus(Claimant) v. Bradfax Hospital The first criteria for a tortious liability are met in this instance due to the fact that there is an established duty of care for doctors and patients. For a breach of duty The standard of care of a reasonable man has to examined as there is a higher threshold when it involves professionals, especially doctors. By comparing and contrasting the decisions and test derived from the seminal case of Bolam and Bolitho we can potentially establish whether there was a breach of duty. The ‘Bolam standard’ is applied to purported negligence, with the actions of one doctor being compared to its peers in order to determine if the practice in question is not an outlier. In Bolitho, the courts emphasised that, in the end, it should be up to a judge’s discretion to determine whether reasonable standard of care had been met. Therefore, the based on the limited facts, and depending on which precedent to follow there can be no definitive finding of a breach of duty in this circumstance. Karl’s limp could potentially be a result of the delay to diagnose or the initial injury itself, there is no way to know for certain thus leaving us at an impasse. One can consider the case of Kent v Griffiths, although its facts have to do with an ambulance(rescuers, which are not obligated to provide a duty of care) and not doctors it was found in that case that the delay was a causal link to the injury, thus they were held liable. Due to the lack of information a decision cannot be made either way in regards to the potential negligence of the hospital. However, If the doctors are found to have acted negligently, then there will be a break in the chain of causation between Rufus and Brenda in the previous claim. Karl (Claimant) v. Bradfax HospitalOnce again due to the doctor and patient relationship duty of care is easily established. A doctor is held to a higher standard of care than the ordinary person.  A similar argument regarding standard of care can be made to that in the claim above. Nevertheless, what sets this claim apart from the previous claim is that there was a positive act conducted by the doctors, not an omission which leads to Karl’s prolonged stay. Thus, we can examine whether the third criteria in a tortious liability claim, that of causation. Looking at Barnet for factual causation, ‘but for’ the doctor’s positive act of injecting the tetanus shot would the claimant be in the position he was in? Upon weighing the loss on a balance of probabilities, the answer would be no. Due to the lack of information it is impossible to determine the remoteness of damage. If injecting the tetanus shot is a normal practice then Bolam, Bolitho or Whitehouse v Jordan (HL,1981) could be used to determine. Therefore, it cannot be concluded, due to the lack of information, whether Karl’s action of negligence against the hospital would succeed. Mack’s Automobiles v StaffMack’s Automobiles by virtue of being employers owe their staff a duty of care. The question is whether that duty was breached when their wages were stolen by a thief?  Were the employers liable for leaving the emergency exit door open during the evacuation? This claim would most likely not make it further then breach of duty. As it is unreasonable to expect that in the case of an emergency and evacuation, that an emergency door checked to be locked. In conclusion, Karl holds a strong and most likely indefensible claim against Mack’s automobiles, for negligence. Similarly, Rufus holds a strong claim against Brenda. However, both their claims may come into jeopardy if the Bradfax hospital proves to be negligently liable for their delay in diagnosing as well as their mistake involving the tetanus injection.