Analysis of Negligence Issues in a Scenario

This article analyzes the issues of negligence in a scenario and applies them to the facts of the case. It discusses the duty of care, breach of duty, and damages with reference to key cases. The parties involved are advised in line with the analysis.

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Contents
Assignment......................................................................................................................................2
Issues raised.................................................................................................................................2
Define, explain, discuss and analyze the issues with decided cases............................................2
Apply the issues to the facts of the scenario................................................................................4
Evaluate the law/key cases as you see fit.....................................................................................6
Advise the parties in line with your preceding discussion/analysis.............................................6
Reference List..................................................................................................................................8

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Assignment
Issues raised
i. Whether Peter, Mary and Jade can sue Henry for loss caused to him?
ii. Whether Alex is responsible for the death of Mary?
Define, explain, discuss and analyze the issues with decided cases
The acts of Henry and Alex are evaluated by understanding whether the duty of care that is
imposed upon them are comply with by them and if not whether the violation of the legal duty is
breached by them resulting in the loss to Peter, Mary, Jade and Alex respectively.
As per Fleming, “A tort is an injury other than a breach of contract which the law will redress
with compensation”1 In negligence, the defendant owns a duty of care towards the plaintiff so
that no loss is caused because of any violation by the defendant2. As per Donoghue v Stevenson3
the main elements are4:
i. Duty of care – The duty imposes an obligation upon the defendant that any of his
actions should not harm the plaintiff.5
a. The plaintiff is the person who shares the relationship of proximity with the
defendant6. Lord Atkin also defines neighborhood principle7.
1 ALEX BOND, Introduction: Liability in tort, < https://nexusnotes-media.s3-ap-southeast-2.amazonaws.com/wp-content/
uploads/edd/2015/03/Law-231-Full-Lecture-Notes090315-copyp.pdf>.
2 Hill v Chief Constable of West Yorkshire [1988] 2 WLR 1049.
3 Donoghue v Stevenson [1932] UKHL 100 .
4 Malcolm Khan and Michelle Robson, Clinical Negligence, (Routledge, 21-Aug-2012).
5 Kirsty Horsey and Erika Rackley, Tort Law, (Oxford University Press, 13-Jul-2017).
6 Home Office v Dorset Yacht Co [1970] AC 1004; Hedley Byrne v Heller [1963] AC 465;
7 N. Athanassoulis, S. Vice, The Moral Life: Essays in Honour of John Cottingham. (Springer, 29-May-2008, p68). "The rule that
you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question " Who is my
neighbour ?" receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbour. Who then in law is my neighbour ? The answer seems to be persons who are so
closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts or omissions which are called in question."

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b. The duty exists only against those plaintiffs who can be reasonably foreseeable by
the defendant8. Lord Oliver’s in Caparo Industries plc v Dickman9 analyzed the
concept of foreseeability10.11
Gaudron J in Perre v Apand12, also emphasis on the concept of duty of care13.14
ii. Breach of duty of care – When the level is not met, then, the duty is violated15.16
iii. Damages –The loss caused to the plaintiff should be because of the acts of the
defendant and should not be remote17.
But, the defendant can prove that the loss caused to the plaintiff is not because of the negligence
of the defendant but the plaintiff is also contributory negligent. Thus, the defendant can reduce
his liability proportionality18.19
Apply the issues to the facts of the scenario
Peters car had a flat tyre. He was replacing the tyre at the roadside which was to be used at the
time of emergency.
Henry and Peter
At this time a lorry hit Peters care and he suffered serious injuries. The lorry was driven by
Harry.
Harry being the driver owns a duty of care n towards the co passengers, drivers and the
pedestrian20. Henry and Peter shares a proximate relationship with each other as Peter was placed
8 Fardon v Harcourt-Rivington [1932] All ER Rep 81.
9 Caparo Industries plc v Dickman [1990] at 633.
10 [O]nce one discards, as it is … clear that [owing to the documented deficiencies in the neighbour principle] one must, the
concept of foreseeability of harm as the single exclusive test – even a prima facie test – of the existence of the duty of care, the
attempt to state some general principle which will determine liability in an infinite variety of circumstances serve not to clarify
the law but merely to bedevil its development in a way which corresponds with practicality and common sense
11 Adrian Baihui Chan, Who then – in Law – is my Neighbour? Lord Atkin’s ‘Neighbour Principle’ as an Aid for the Principled
Delineation of the Boundaries of Negligent Liability, 2011, <
https://tspace.library.utoronto.ca/bitstream/1807/27336/6/Chan_Adrian_B_20113_LLM_thesis.pdf>.
12 Perre v Apand (1999) HCA 36 .
13 In my view, where a person knows or ought to know that his acts or omission may cause the loss or impairment of legal rights
and that latter person is in no position to protect their rights there is a relationship giving rise to a duty of care.
14Prue Vines, ‘The Needle in the Haystack: Principle in the Duty of Care in Negligence" ([2000] UNSWLawJl 25).
15 Nettleship v Weston [1971] 2 QB 691; Haley v London Electricity Board [1965]; Latimer v AEC Ltd [1952].
16 Ewan MacIntyre, Business Law, (Pearson UK, 22-Feb-2018).
17 Ken Oliphant and Donal Nolan, Tort Law: Text and Materials, (Oxford University Press, 30-Jul-2017).
18 Sayers v Harlow Urban District Council [1961]; Jones v Livox Quarries Council [1952].
19 Seow Hon Tan, Justice as Friendship: A Theory of Law, (Routledge, 09-Mar-2016).
20 Nettleship v Weston

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at a road side. Henry is aware that there are chances that a person will be placed at such place.
Thus, there is presence of proximate and reasonable forseeability amid Henry and Peter.
However, the duty is breached as Henry was travelling at a very high speed. He also failed to
successfully execute an overtaking movement on the “wrong” side of the vehicle in front of
him21. Thus, the level of care is not comply with.
Because of the breach, there were severe injuries that are sustained by Peter. The loss caused to
Peter is because of the acts of Henry and is not remote.
Harry and Mary
Henry wrongly overtakes the car of Mary from the wrong side. Henry is under the duty against
Mary (co drivers) as he shares a relationship of proximity with them and can be reasonably
foreseeable by him. Henry was found to be in violation as he was driving at a very high speed
and he took an overtake wrongly. Because of the breach, Henry hit the car of Mary and she was
thrown out of the car and sustained injuries. Thus, Henry is negligent towards Mary.
But, it is found that Mary was not wearing the seat belt when Henry hit Mary’s car. The loss that
is caused to Mary might have not taken place if she would have been wearing the seat belt. Thus,
she has also contributed to her own loss. So, Henry can rely on the defense of contributory
negligence.
Mary and Alex
Mary after the accident was taken to St John’s Hospital, where she was treated by Dr Alex. Alex
owns a duty against Mary as they are sharing a relationship of proximity and any acts carried on
by Alex will directly affect Mary. But, this duty is not met by Alex. He administered painkillers
and a dose of Penicillin without inquiring whether Mary is allergic. The level of care is not met.
Mary was allergic to penicillin and died because of the reaction. Thus, the loss to Mary is
because of the breach on the part of Alex (Penny and Others v East Kent HA22.
Jade and Henry
21 Latimer v AEC Ltd
22 Penny and Others v East Kent HA (2000)

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Henry is sharing a proximate with Jade as he was sitting in the car of Peter. A driver owns duty
not only against the co drivers but also towards the passengers. But, the duty is breached by
Henry when he wrongly hit the car of Peter. Henry is liable for only those losses which can be
reasonably foreseeable by him. Because of the accident Jade was not able to attend his meeting
and also suffered consequential loss. But, the loss is too remote to be predicted by Henry and
thus, Henry is not liable for such loss.
Evaluate the law/key cases as you see fit
The most important case that seems fit is Donoghue v Stevenson wherein Lord Atkin has stated
that the defendant is only liable to cater duty of care against those plaintiffs with whom he is
sharing proximate relationship. If the duty of breached, then any loss incurred because of such
breach will hold the defendant answerable.
The next key case is Nettleship v Weston which emphasis that duty of care must be imposed on
the drivers to make sure that they must take adequate care and standard of care while driving.
The experience driver is held to be under higher level of care when compared with the learned
driver.
In Penny and Others v East Kent HA a duty is imposed on the doctors to act diligently, the
avoidance of which can hold them liable under law.
Advise the parties in line with your preceding discussion/analysis
It is thus concluded that:
Henry must be held liable for the loss that is caused to Peter under the law of negligence for the
wrongful driving by Henry. Henry is aware that is overtaking wrongly and thus there are full
chances that there can be any vehicle that might be present at the emergency way. The duty of
care that is expected from Henry is violated by him and because of such violation, loss is caused
to Peter. Henry hit the rear car of Peter and thus the loss suffered by Peter is the direct outcome
of the breach on the part of Henry. So, it is advised to Peter that he has full right to bring an
action under the law of negligence against Henry and sue him for the loss that is suffered by him.
It is advised to Mary that she can also sue Henry for the loss caused to her Car. It is submitted
that Henry is aware that someone is driving a car in front of him and is also aware that the wrong
overtaking by him will hit the car, he still over take the car a hit the car. Thus, there is a clear be
breach of duty by Henry which caused harm to Mary as she suffered injuries. But, the loss was
too remote to anticipate and also Mary herself was not wearing the seat belt. So, it so advised

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that Mary herself is negligent and can only sue Henry for proportionately loss for the injuries that
are suffered by her because of the cars of Henry.
It is advised to Mary relatives that they can sue Alex as he is liable for the death of Mary because
of his negligent actions. Alex is a doctor and he breached his level of care that is expected from
him and thus is liable for Mary death.
Jade cannot sue Henry as the loss was too remote to predict by Henry. Jade was sitting with
Peter and the loss to Peter cannot be reasonably forgeable by any normal person in the like
situation.

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Reference List
Books/Articles/Journals
Horsey, K and Rackley, E, Tort Law, (Oxford University Press, 13-Jul-2017).
Khan, M and Robson, M, Clinical Negligence, (Routledge, 21-Aug-2012).
MacIntyre, E, Business Law, (Pearson UK, 22-Feb-2018).
Oliphant, K and Nolan, D, Tort Law: Text and Materials, (Oxford University Press, 30-Jul-
2017).
Tan, SH, Justice as Friendship: A Theory of Law, (Routledge, 09-Mar-2016).
Case Laws
Carmarthenshire County Council v Lewis [1955]
Caparo Industries plc v Dickman [1990]
Donoghue v Stevenson [1932] UKHL 100 .
Fardon v Harcourt-Rivington [1932] All ER Rep 81
Haley v London Electricity Board [1965]
Home Office v Dorset Yacht Co [1970] AC 1004
Hill v Chief Constable of West Yorkshire [1988] 2 WLR 1049
Hedley Byrne v Heller [1963] AC 465
Jones v Livox Quarries Council [1952]
Nettleship v Weston [1971] 2 QB 691
Sayers v Harlow Urban District Council [1961]
Ward v Tesco Stores Ltd [1976]