‘Reasonably Foreseeable’ Victim Evidence

1. Davina

Davina must prove that her depression is medically-recognised (McLoughlin v. O’Brian (1983)) caused by the accident and that she was a ‘reasonably foreseeable’ victim. She must also show that her injury would be foreseeable in a person of reasonable fortitude (Page v. Smith (1996)). Davina is a secondary victim (Alcock v. Chief Constable of South Yorkshire Police (1992)) so must establish a close relationship between herself and Bertram, proximity to the accident and that her injury came through sight or hearing of it. Bertram is Davina’s brother; Davina heard the accident and attended immediately afterwards thus her claim should succeed,

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Whitchester District Council

The pothole may constitute a breach of the Council’s duty under section 41 of the Highways Act 1980 to maintain ‘highways maintainable at public expense’. However, section 58 provides a defence if the Council took reasonable care to ‘secure that the part of the highway… was not dangerous to traffic’. Therefore, if the Council carries out regular inspection and makes timely repairs it will have fulfilled its duty.

Ethelred

Ethelred may be vicariously liable for Conrad’s negligence, since Conrad is an employee (Ready Mixed Concrete (South East) Ltd v. Minister of Pensions and National Insurance (1968)) acting in the course of employment; although Conrad had finished his deliveries, he was going back to the depot and thus not ‘on a frolic of his own’ (Joel v. Morrison (1834)).

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Conrad

Conrad owed Bertram the recognised duty between road users (Caparo v. Dickman (1990)) and must reach the standard of a reasonably competent driver (Nettleship v. Weston (1971)). Conrad was ‘hurrying’ back to the depot suggesting he was speeding or driving carelessly particularly since he was unable to stop in time.

In a case involving multiple causes of injury, Bertram only needs to show that a breach materially contributed to the damage (Bonnington Castings Ltd v. Wardlaw (1956)). Running Bertram over with his lorry would cause a reasonably foreseeable (The Wagon Mound (No 1) (1961)) material contribution to his injuries which would not have occurred ‘but for’ Conrad’s negligence (Barnett v. Chelsea and Kensington Hospital Management (1969)).

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Alphonse

Alphonse owed Bertram the recognised legal duty of care between road users (Caparo) and must show the same standard of care as a reasonably competent and experienced driver (Nettleship v. Weston). There is nothing to suggest that Alphonse was driving carelessly before hitting the pothole. It is unlikely that he will be liable to Bertram.

It is likely that his broken wrist would be too remote for liability to arise (Wagon Mound). Alphonse should have been aware of the difficulties walking whilst wearing a neck collar and taken extra care on stairs.

Bertram

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By stepping into the road without looking, Bertram could be considered to be contributorily negligent. The existence of a duty of care is irrelevant (Jones v. Livox (1952). If Bertram is found to be contributorily negligent any damages will be reduced to the extent that his carelessness caused his injuries, considering the relative blameworthiness of the parties.

(500 words)

2. Private nuisance

Private nuisance can be defined as unlawful interference with use or enjoyment of land. The claimant must be the landowner (Hunter v. Canary Wharf Ltd (1997)) and the interference must be an unreasonable state of affairs causing damage or personal discomfort as a result.

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Lordly is the landowner. Frequent bonfires will constitute a state of affairs. In considering whether this is unreasonable, the character of the neighbourhood will be considered (St Helens Smelting Co v. Tipping (1865)) in relation to the degree and type of interference that could be expected in that locality. It is likely that frequent burning of tyres on village outskirts would be unreasonable. Lordly has been unable to enjoy his garden because of the smell; smell is recognised as a recognised category of nuisance (Wheeler v. JJ Saunders Ltd (1996)). Sumpoil would be liable as the creator of the nuisance.

Chip will not be able to bring a claim for disruption to his mobile phone as he is not the landowner.

Public nuisance

Public nuisance can be defined as nuisance which materially affects the reasonable comfort and convenience of a class of Her Majesty’s subjects (A-G v. PYA Quarries Ltd (1957)). Road users have been held to constitute a class (Castle v. St Augustine’s Links (1922)). Moreover, the claimant must have suffered special (particular) damage, which must be different in nature or extent from that suffered by the rest of the class. The smoke has adversely affected visibility for drivers and thus affects their convenience Lordly has suffered further damage and could therefore bring a claim in public nuisance against Sumpoil.

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Harassment

Section 3 of the Protection from Harassment Act 1997 creates a statutory tort of harassment, satisfied if the defendant pursues a course of conduct (on at least two occasions (section 7(3)) that causes another to experience harassment. Such conduct can include words (section 7(4)). Therefore, Chip’s frequent swearing at Sumpoil may give rise to liability for harassment if it caused Sumpoil to feel harassed, alarmed or distressed.

Assault and battery

Battery is defined as the intentional direct application of force to another person. An assault is an act which causes the reasonable apprehension of infliction of a battery. Sumpoil walked up to Chip carrying a large wrench.. If Chip reasonably apprehended that Sumpoil was going to hit him, then Sumpoil would be liable for assault. Chip punching Sumpoil on the nose would constitute a battery, and, if Sumpoil apprehended the punch, would also give rise to an assault.

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Interference with business

Lordly interfered with the supply of goods to Sumpoil’s business and may be liable for the tort of interfering with business if he knew of the existence of the contract and intend to interfere with its performance (Merkur Island Shipping Corp v. Laughten(1983)) without sufficient justification, leading to an actual breach of contract, causing damage. However, it is not clear whether the delays in delivery constituted a breach of contract or whether Sumpoil suffered resulting loss.

(500 words)

List of cases

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A-G v. PYA Quarries Ltd [1957] 1 All ER 894

Alcock v. Chief Constable of South Yorkshire Police [1992] 1 AC 310

Barnett v. Chelsea and Kensington Hospital Management [1969] 1 QB 428

Bonnington Castings Ltd v. Wardlaw [1956] AC 613

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Caparo v. Dickman [1990] 1 All ER 568

Castle v. St Augustine’s Links (1922) 38 TLR 615

Hunter v. Canary Wharf Ltd [1997] AC 655

Joel v. Morrison (1834) 6 C & P 501

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Jones v. Livox Quarries [1952] 2 QB 608

McLoughlin v. O’Brian [1983] AC 410

Merkur Island Shipping Corp v. Laughten[1983] 2 AC 570

Nettleship v. Weston [1971] 2 QB 691

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Page v. Smith [1996] 1 AC 155

Ready Mixed Concrete (South East) Ltd v. Minister of Pensions and National Insurance [1968] 1 All ER 433

St Helens Smelting Co v. Tipping (1865) 11 HLC 642

The Wagon Mound (No 1) [1961] 1 All ER 404

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Wheeler v. JJ Saunders Ltd [1996] Ch 19

Bibliography

Howarth, DR and O’Sullivan, JA (2003) Heppel Howarth & Matthews Tort Cases & Materials (5^th edition), LexisNexis Butterworths, London

Mullis A and Oliphant K (2003) Torts (3^rd edition), Palgrave Macmillan, Basingstoke

Rogers WVH (2002) Winfield & Jolowicz on Tort (16^th edition), Sweet and Maxwell, London

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