Issues in the law of tort

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Date added: 17-06-26

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Introduction This scenario presents issues in the law of tort that arise in negligence, and there is the possibility of a defence to parts of the action, in remoteness. Firstly it must be established if a duty can be found from one party to another, as with no duty there can be no liability, which was an essential theme of Donoghue and Stevenson[1] Fred Fred would seem to the be tortfeasor in this incident. If so then had he sustained injury or loss he would be unable to recover in tort from anyone, unless he had comprehensive insurance but that would be a contractual issue. If Fred had suffered loss and if it were Jacky that was to blame for what happened and not Fred, perhaps because Jacky was negligently riding her horse in an aggressive manner then Fred could sue Jacky, but from the facts this scenario appears unlikely. Jacky As Jacky is qualified to instruct on horse riding, and as she runs her own stable, seemingly for that purpose, then it can be reasonably assumed that she is competent to instruct on matters of horse riding and that she will probably have liability insurance. This is important as a right of action against a person is of little use if they are not worth suing. The matter of whether she is insured will not impact on her potential liability but it will provide a substantial enough defendant for any claimants to pursue. Ben If Ben has a right of action then this will only take effect after his birth, and had he been still born then, having not been born alive, he would not have acquired a legal personality and no action on his behalf could have been taken in tort, although had the death in vitro been caused by a criminal act then potentially there could follow criminal liability for child destruction. Ben has been born alive and therefore he has acquired a legal personality and can sue in his own right using the provisions of the Congenital Disabilities (Civil Liabilities) Act 1976 which legislated the position at common law according to the decision in Burton[2]. In order to recover, Ben would have to prove causation in the normal fashion. Was it negligent of Jacky be out horse riding 5 months into her pregnancy? She is qualified and as a stables owner it could be supposed that she is experienced, but whether it is negligent of her to be riding at that stage of her pregnancy is a matter that would need to be established by reference to authoritative opinion, probably from the riding industry as regards the risks of an incident occurring at all, and also probably from the medical profession as regards the consequences of an accident should one befall her. Perhaps it was only negligent of her to be riding on the roads, albeit quiet ones? If Jacky has been negligent then does she owe a duty of care to her unborn child? The answer is yes, but this seems bizarre in that she will be liable to her unborn child upon its birth for lesser actions that she takes during pregnancy that cause it injury, but she will not be liable to anyone if she takes such drastic actions during pregnancy that result in her foetus dying; ie she has a legal abortion. Nevertheless, Ben is born and by s.2 of the 1976 Act she will be liable to him if his injury is the result of her negligence. If Ben’s injuries in vitro are the consequence not of Jacky’s negligence but of Fred’s then once he has been born he will have an action against Fred. It is settled law that a motorist owes a duty to whomever he encounters on the roads that he drives his motor vehicle. Again, the authority is the Act of 1976 where at s.1(3) the rule that if the mother could sue for an injury resulting from the actions of another person but it is the unborn child that suffers the injury then upon birth the child can sue. Clearly Jacky is sufficiently proximate the Freed to sue if his actions were negligent and thus Ben can sue Fred directly upon his birth. Fred will have insurance as this is a legal requirement for motorists and thus Ben has a defendant worth suing in the insurer. s.1(7) may apply as it creates a rule where if the parent was partially responsible for the injury suffered by the unborn child then the amount recoverable by the child when it acquires the right to sue will be proportionately reduced by the percentage of responsibility borne by the parent. Was Jacky’s action in jumping her horse over the hedge negligent and if so was it negligent enough to attract blame? It is doubtful from the facts that this is so because Jacky’s action is described as ‘avoiding action’. This necessarily implies that had she not done this then she and her horse may have been hit by Fred’s vehicle. There can be no liability for actions resulting from reasonably trying to avoid impending harm. Sue Sue will have an equal right of action in tort against Fred as Jacky has, being a person lawfully using the road that Fred has negligently driven down. However, Sue has both thrown herself from her horse and failed to earlier secure her helmet. She does not appear to have sustained a head injury and thus the unfastened helmet would not detract from her ability to recover, but can her having jumped do so on the basis of contributory negligence[3]? Again, as with Jacky, the actions of Sue appear to be a reasonable response to a threat of immediate danger and therefore there would not appear to be any way that the Law Reform (Contributory Negligence) Act 1945 can operate to reduce her level of recovery for the personal injury she has suffered. Sue’s inexperience will not affect her ability to recover on the basis of contributory negligence as she was apparently taking a lesson from a qualifies instructor and is entitles to do what the instructor tells her, providing it does not result in her committing an offence or causing harm to another person. Bob Bob’s loss is a pure economic loss, which ordinarily would; not be recoverable on the basis that it does not flow from a head of claim in its own right, such as personal injury etc. In the absence of a contract between Bob and Fred, which is unlikely as they are friends, for Bob to recover then he will have to rely on Fred having voluntarily assumed a duty toward him to get him to the airport on time – which sits well with the fact that that was the purpose of their journey. Under the Hedley Byrne[4] principle Bob will then be able to recover the purchase price of his new airline ticket from Fred, or in reality Feed’s insurers. If a voluntary assumption of responsibility toward Bob cannot be established then Bob will have no recourse against Fred at all because his loss, as a pure economic one will be too remote from the harm caused by Fred. Bibliography Cooke J, 2005, The Law of Tort, 7th Edition, Pearson Hedley S, 2006, Tort, 5th Edition, OUP Rivlin G, 2006, Understanding the Law, 4th Edition, OUP Rogers, 2006, Winfield & Jolowicz on Tort, 17th edition, Sweet and Maxwell Word count: 1243

Footnotes

[1] [1932] AC 562 [2] Burton v Islington Health Authority [1993] QB 204 [3] Butterfield v Forrester (1809) 11 East 60 [4] Hedley Byrne & Co Ltd. v Heller & Partners Ltd [1964] AC 465; also White v Jones [1995] 1 All ER 691
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