HOW TO ANSWER A TORT PROBLEM QUESTION


EXTRACT FROM A WITNESS STATEMENT BY MOLLY.


I am a qualified bus driver employed by the local bus company. 6 months ago, I was involved in a road traffic incident whilst driving the number 47 bus. To avoid being late I drove through a red traffic light to save time. I thought the road was clear but just as I was crossing the junction, I saw a car approaching me from the right. The car had the right of way but was being driven at an excessive speed. Both the car and I swerved to avoid a collision. I was not injured in the incident, but a number of claims have now been made against my employer.

EXTRACT FROM A WITNESS STATEMENT BY IDNAN.


I was a passenger on the number 47 bus which was involved in a road traffic incident. I was standing up at the time of the incident as I was due to get off the bus at the next stop. When the bus swerved, I fell and hurt my back. I attended hospital for treatment. The doctor advised me that due to a pre-existing back injury I suffer, my injuries were more significant than they would have been. Instead of suffering a minor injury, I had to take 5 months off work. My employer paid me in full for the first 3 months but for the remaining 8 weeks I lost £500 a week.

I was on my way to watch a football match when the incident occurred. I had already purchased my match ticket. It cost me £50, but I was unable to attend the match because of the incident.

Whilst I was in hospital a 16-year-old boy, Tom, broke into my house intending to commit theft. He slipped and fell on my kitchen floor which I had just polished before I left the house. The floor remains slippery for a couple of hours after polishing. Tom broke his leg and now wants to sue me for his injury. No one has ever broken into my house before and the situation was very upsetting.

Later that week to cheer me up, my cousin visited and gave me a box of chocolates manufactured by a local company. I was sick shortly after eating a few of the chocolates. My doctor commissioned a report on the chocolates. She advised me that something had gone wrong during the manufacturing process resulting in the chocolates giving me food poisoning.

EXTRACT FROM A WITNESS STATEMENT BY NAZREEN.


I was the car driver involved in the near collision with the number 47 bus. I was not physically injured in the incident, but I have since experienced flashbacks. I have been diagnosed with post-traumatic stress disorder due to the incident.

I was so frustrated by what happened that immediately after the incident I approached Molly with my fists raised shouting that I was going to hit her. Fortunately one of the other passengers on the bus stopped me before I could actually hit her.

1. WHETHER IDNAN MAY HAVE A CLAIM FOR HIS PERSONAL INJURY AGAINST THE BUS COMPANY USING THE PRINCIPLES OF VICARIOUS LIABILITY.


Employer vicarious responsibility is the most prevalent kind of vicarious liability. Vicarious responsibility is another term for secondary liability. Unlike the bus driver who is held accountable to recompense Idnan for his own negligence (primary responsibility), the bus company who is vicariously liable is held liable for the wrongdoing of the driver. Idan is entitled to compensation from the bus company for the injury caused by the driver’s tortious behaviour. Vicarious liability is essentially a handy technique that allows Idnan to go beyond the direct source of his injury to a person who is frequently in a better position to pay compensation, such as the employer bus company.


ELEMENTS


To establish vicarious liability it must be shown that:


1. A tort has been committed by the bus driver;

2. An employment relationship exists between driver and bus company; and,

3. The tort was committed in the course of employment.


THE TORT


A bus driver, like any other motorist, has a responsibility to other road users, including passengers, to drive with the care and skill required of a competent driver. Kevin Graham v Go North East Limited (20 November 2017), county court (not reported), demonstrates the delicate balance that must be struck while evaluating this responsibility. At a traffic signal controlled intersection, a defendant bus driver struck with the claimant's car. The defendant drove through a changing traffic signal because he didn't think it was safe to stop and slowing would endanger his passengers' safety. The judge recognised the ‘split second’ nature of the decision before the defendant and that he ‘was absolutely right to consider the safety of his passengers’.


EMPLOYMENT RELATIONSHIP


There is a contract of service between the driver and the employee in this relationship (employment contract). It differs from the employer/independent contractor relationship, which is based on a service contract (contractor). There are various tests:


THE CONTROL TEST


The more control an employer has, the more probable the other person is an employee. In Cassidy v Ministry of Health [1951] 2KB 343 the court held a hospital vicariously responsible even though it had only little control over the negligent doctor. In Argent v Minister for Social Security [1968] 1WLR 1749, an art instructor was permitted to teach without a set curriculum, with only occasional visits by the Director of Drama Studies. He's self-employed. Control is inconclusive but a significant aspect.


INTREGATION TEST


Denning L.J. introduced this test in Stevenson, Jordan and Harrison v MacDonald and Evans [1952] 1 TLR 101, 111. The issue is whether the worker is completely integrated or just supplementary. Again, challenges have developed when the working population has altered in complexity and organisation, eg cottage industries.


THE MULTIPLE FACTORS OR ECONOMIC RELAITY TEST


The preferred way is to utilise a 'economic reality, composite' test, sometimes called a 'multiple factors' test. In Ready Mixed Concrete v Minister of Pensions [1968] 2 QB 497, the court considered X's status. X hired, insured, and drove the truck and was paid based on miles. The firm controlled the driver's attire and lorry's colour, yet the court considered him an independent contractor. MacKenna J. proposed a three-step test for determining worker status (1) Remuneration; (2) control; and (3) if other contract clauses are compatible with a service contract.


COURSE OF EMPLOYMENT


In summary, an employee is in the course of work if the wrongdoing is:


  1. Overtly or implicitly authorised by the employer;

  2. Incidental to the employee's lawful tasks; or

  3. An unauthorised means of accomplishing something authorised by the employer.


In Limpus v London General Omnibus Co (1862) 1H&C 526, the plaintiff was hurt as a bus driver raced another coach. This was held to be in the course of employment. Molly was doings her normal route and to avoid being late drove through a red traffic light to save time. It can be argued that this falls outside of her duties because she has acted beyond the scope of his work, i.e. does something she is not authorised to do or does an act that she is specifically forbidden from doing. In Beard v London General Omnibus Co [1900] 2 QB 530 in which a bus conductor with grandiose delusions tried to drive a bus and ran over the plaintiff. Therefore Molly is acting outside of her employment because she was jumping a red light which is an unauthorised means of accomplishing something authorised by the employer.


2. WHETHER NAZREEN MAY HAVE A CLAIM FOR HER POST-TRAUMATIC STRESS DISORDER AGAINST THE BUS COMPANY USING THE PRINCIPLES OF VICARIOUS LIABILITY.


Nazreen was the car driver involved in the near collision with the number 47 bus and she been diagnosed with PTSD due to the incident. Nazreen is a primary victim because she was more than a bystander that saw the accident occur (Alcock v Chief Constable of South Yorkshire Police [1992] AC 310 HL). In her witness statement she says that “I was the car driver involved in the near collision with the number 47 bus.” This mean she was involved in the accident and may have feared for her own safety. Two elements must be proved:


LOSS IS FORESEEABLE


A primary victim (Nazreen) is someone who experiences nervous shock as a consequence of legitimate concern for their own physical safety. It is important to note that the Nazreen does not really suffer physical harm (if they did, they would file a regular negligence case for their personal injury, including the psychological impairment). In terms of duty, the regular Caparo rules would apply). The main victim is only concerned about bodily harm (an objective test). Nazreen is a participant in the distressing incident at hand (Page v. Smith).

Lord Oliver adopted this vocabulary to describe prior rulings in Alcock v Chief Constable of South Yorkshire Police. This difference is important because the courts use different criteria for establishing a duty of care depending on whether the victim (the claimant) is a main or secondary victim. First determine whether the claimant is a main or secondary victim before discussing a duty of care.


NERVOUS SHOCK MUST BE A MEDICALLY RECOGNISED CONDITION


In all nervous shock claims, a significant recovery criterion is mental disorder. Negligence-caused dread, anguish, or mental sadness is not sufficient. PTSD is a reconsidered medical condition.


3. WHETHER IDNAN OWED TOM A DUTY OF CARE UNDER THE OCCUPIERS’ LIABILITY ACT 1984.


Tom broke into my house intending to commit theft. In situations involving trespassers, the courts tend to be more forgiving. A criminal trespasser is not prohibited from filing a claim for personal harm against the occupants because doing so would make him a criminal. It is one thing to deny a claimant the rewards of his unlawful behaviour, but quite another to deny him recompense for harm.


Any liability for non-visitors, e.g. trespassers, is governed by Occupiers Liability Act 1984. In Robert Addie & Son (Collierers) Ltd v Dumbreck [1929] AC 358, the obligation initially due to trespassers was also established. As such, its scope was quite limited. However, the attitude of the court changed, particularly in situations involving minors as trespassers. This is most evident in British Railway Board v. Herrington [1972] AC 877, when a six-year-old boy's claim for injuries sustained while trespassing on a railroad line was upheld. The court declared that an occupier always bore a responsibility of "common sense and common humanity" to everyone on his property. The Herrington judgement served as the foundation for the OLA 1984. Sections 1(3)(a)-(c) of the OLA 1984 outline the three-part test that must be satisfied:


  1. Is Idnan aware of the risk or does she has reasonable reasons to think that it exists?

  2. Does Idnan know or have reasonable grounds to suspect that the trespasser is in the area of the danger or may come into the vicinity of the danger?

  3. Is the risk one from which it is reasonable for Idnan to protect the trespasser, taking into account all of the circumstances?


The obligation is to behave appropriately based on what Idnan knows or ought to know. If all three elements are met, section 1(4) of the Occupiers Liability Act 1984 requires Idnan to take reasonable precautions to ensure that Tom is not injured. Important reference to "injury" since OLA 1984 only pertains to personal injury. A trespasser's property is not afforded any protection. It is important to note that the examination is both subjective ((a) and (b)) and objective (c).


BREACH


The decision of whether a duty has been broken is essentially same under OLA 1984, OLA 1957, and the common law, in that all relevant facts must be considered. The nature of the trespass, such as whether it is committed with criminal intent, seems to be one of the factors that may influence the duty's threshold. We can also distinguish the Idnan’s case with that of Revill v Newbery [1996] 1 All ER 291. The defendant, a 76 year old man, was sleeping in his garden shed in order to protect the items in it from burglars. The plaintiff was a burglar who attempted to break into the shed in the middle of the night whereupon the defendant fired a shotgun through a hole in the door. Idnan has not created a dangerous situation but polished here floor and Tom the intruder has fallen on Idnan’s kitchen floor in the commission of a criminal offence.

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