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Question 1
Marchelle, an entertainer was driving his brand new tour bus, along with his onstage
sidekick, snappy along the Western Main road
...
The car mounted the pavement and narrowly missed
Buncha –Garlic, another entertainer, who was wating for his wife, Fair- Anne outside
Crispy’s Record Store, before crashing into and damaging the front of that store
...

Snappy who was not wearing a seatbelt suffered facial lacerations and a broken leg
...
Cassandra gave him an anti-tetanus injection which,
unfortunately produced in snappy an allergic reaction, causing brain damage
...


Question 2
Briefly define and explain, (using case law where appropriate) each of the following
concepts, and give an original example of each;
1)
2)
3)
4)
5)

Vicarious Liability
Nervous Shock
Remoteness of damage
Causation
Novus Actus interveniens

Question 1
Marchelle, an entertainer was driving his brand new tour bus, along with his onstage
sidekick, snappy along the Western Main road
...
The car mounted the pavement and narrowly missed
Buncha –Garlic, another entertainer, who was wating for his wife, Fair- Anne outside
Crispy’s Record Store, before crashing into and damaging the front of that store
...

Snappy who was not wearing a seatbelt suffered facial lacerations and a broken leg
...
Cassandra gave him an anti-tetanus injection which,
unfortunately produced in snappy an allergic reaction, causing brain damage
...

This scenario identifies six possible cases of:
1)
2)
3)
4)
5)
6)

Snappy v Marchelle
Buncha – Garlic v Marchelle
Fair-Anne v Marchelle
Crispy’s Record Store v Marchelle
Snappy v Dr
...
Negligence is usually determined by “Losses lie where they
fall”
...
Marchelle should have exercised reasonable
Care as the law states that we have to exercise “reasonable care” in our dealing with
others
...
” The ‘but for’
test is usually employed in the investigation of causative links between the tort(s) and the
damage
...

In this case the claimants would have to establish that Marchelle owed them a duty of
care a duty of care
...
The test for
establishing whether a duty of care exist arises out of the case of Donoghue v Stevenson
(1932) and as such if there is unintentional damage ,there is potentially , a claim in
negligence
...
The case showed that there was a greater risk of
injury that is more likely to occur; therefore Marchelle should have made more efforts to
fulfill his duty of care
...


"The rule that you are to love your neighbour becomes in law, you must not
injure your neighbour: and the lawyers question, Who is my neighbour?
receives a restricted reply
...
Who then is my neighbour? The answer seems to be - persons who
are so directly affected by my act that I ought reasonably to have them in
contemplation as being affected when I am directing my mind to the acts or
omissions which are called in question
...
Lister v Romford Ice &
Cold Storage Co
...
[1957]
Here is a summary of the circumstances surrounding the possible cases of the claimants
and the defendant Marchelle
...
He did not exercise a duty of care to Snappy and
pedestrians that would have been on the road
...
Snappy can use
causation to Prove a Tort Action and the standard of care breached by Marchelle once it
has been shown that Marchelle was negligent and he had a duty of care to the Snappy, it
must be shown that the actual injuries are not too remote, such that the damage caused
was not totally unforeseeable in considering the negligent act
...
Marchelle wrongful act against Snappy gives rise to a civil
claim ( usually for damages although other remedies are available)
...
However it is Snappy’s burden prove and
show on a balance of probabilities that certain elements exist
...
A successful tort claim must show that Marchelle’s the
defendants risks causing harm were unreasonable negligent and his standard of care is
breached as he would have owed a duty of care to Snappy, such that the duty to not cause
this particular person harm was breached
...

A milkman (against company orders) took a 13-year-old boy to help him on his round,
and the boy was injured through the milkman's negligent driving
...
The trial judge found that the co-operative was not
liable
...
The court held that the milkman was doing an authorized
act, delivering milk, in an unauthorized way
...
The boy was actually helping to deliver the milk, and so the driver's action was
an unauthorized way of performing his duties
...

The court would seek to Commodify human life (all human life has a finite financial
value) as in this case Buncha-Garlic
...


Case 3
Fair- Anne V Marchelle
This is a case where the claimant fears for the personal safety of a close relative in
particular her husband
...
However Fair-Anne the claimant
must show that there was a close and loving relationship between herself and Buncha
Garlic by proving that she is his spouse
...

In this case compensation through money provides a division that we like and allows us
to divorce ourselves from the issue as soon as possible and forget about the results
...
If damages are to be recovered, nervous shock must take the

form of a recognized mental illness, mental suffering such as grief, is generally not
recoverable, no physical injury need to be suffered
...

The courts concerns of persons claiming for nervous shock fall into where the claimant
experiences shock and illness after fearing for his or her own safety
...
In claiming nervous shock for a
secondary victims (Fair-Anne) being the who are not in danger to herself but witnessed
the aftermath
...
The plaintiff was not physically
injured but suffered severe shock, which led to illness
...


Case 4
Cripsy’s Record Shop v Marchelle
It is stated in the law that a wrongful act against an individual or body corporate and his,
her or its property gives rise to a civil claim (usually for damages although other
remedies are available)
...
There is economic loss arising out of
damage to property of Marchelle crashing into the front of the Crispy’s Record Shop

The court in its decision will rule that economic loss was only recoverable where it was
directly the consequence of physical damage
...
The goal is not to punish the defendant
(Marchelle) but to compensate the injured party-Cripsy’s Record Shop
...
Cassandra and by extension the hospital
In Snappy’s case causation is an issue, as there must be a link between the injection and
the brain damage
...
Doctor
Cassandra should have inform Snappy of the procedure itself and any attendant material
risks of a substantial nature (that are either common, or adverse) Therefore, it should be
decided whether the doctor negligence did lead to the plaintiff Snappy to undertake a
wrong injection that he otherwise would not have
...
However in deciding the court will not hold the doctor liable
as the hospital through their attorney would indemnify the responsibility to themselves
although the standard practice failed to adopt an obvious and reasonable precautions
which are readily apparent to an ordinary finder of fact, then it is no excuse for a
practioner as in this case Dr
...
For Snappy to have a successful tort he must claim the
issues such as preventing unjust enrichment and the pain and suffering that he endured
due to Dr
...
Dr Cassandra
breached her standard of care, as she owed a duty of care to the plaintiff Snappy, such
that the duty to not cause this particular person harm
...
Buckmaster (winter bottom v Wright)
“If we go one step beyond that there is no reason we should not go fifty”

In this case it is established that we owe a basic duty of care to people as a very result of
living in a society where we share space
...
This is a huge leap forward in recognizing
social duties
...
Contracts are very
individualistic; tort now has a social basis to refer to
...
Snappy can sue under Vicarious
liability a doctrine which states that if you work on behalf of someone(as in this case the
hospital)and whilst engage in duty you commit a tort
...
Cassendra
...
559
Plaintiff underwent surgery to remove a clot in his artery
...
The plaintiff disputes that he was not adequately
informed of the risks
...

ter Neuzen v Korn (1995)
A doctor performing artificial insemination (AI) infects someone with HIV doctor claims
he was following customary practice at the time (1985) plaintiff argues that there was
enough information out there to suggest that more care should have been taken by the
doctor (journals, other countries with information)
...

The rule in Hadley v Baxendale (1854) states that damages will only be awarded in
respect of losses which arise naturally , that is in the natural course of things or which
both parties may reasonable be supposed to have contemplated , when the contract was
made as a possible result of its breach
...
The
defendant delayed in delivering the shaft, thus causing the mill to be out of action the mill
to be out of action for longer than it would otherwise have been
...
The mill might, for example have had a spare shaft
...
In addition Baxandale was unaware that the mill would
be out of action during the period of delay, so the second part of the rule did not apply,
either Baxandale therefore, although liable for breach of contract, was not liable for the
loss of profit caused by the delay
...
Under the second part of the rule, however the party in breach can only be
held liable for abnormal consequences where they have actual knowledge that the
abnormal consequences might follow
...
The plaintiffs claimed for normal loss of profits during the period of delay and

also for the loss of abnormal profits from a highly lucrative contract which they could
have undertaken had the boiler been delivered on time in this case it was decided that
damages could be recovered in regard to the normal profits as the loss was a natural
consequence of the delay
...

These two cases above is very similar to that of Marchelle and Super Spicy Grill in that
Marchelle was not responsible for Sales being affected due to the construction being done
to Crispy’s Record Shop
...


Conclusion
According to the Eggshell skull rule which is the legal doctrine that is used in tort law
hold the individual (Marchelle) for all the consequences resulting from his activities and
all those affected for example the injury leading to Snappy and post traumatic stress
disorder of Fair- Ann these deemed him responsible for all damages due for his lack of
duty to care
...
The person held vicariously liable need not necessarily be a
tort-feasor himself , he may in some circumstances be completely blameless but there
must usually be some sense in which he has authorized the acts of the party who is at
fault
...


There are five common circumstances in which person A may be vicariously liable for
the torts of person B
...
Employers may
be held liable for the actions of their employees, if they incur these liabilities in the
course of the employer's business, and even the employer is not at fault
...
If B is A's agent, B A may be liable for
A's torts
 Where A and B are in a business partnership
...
On
the other hand, rational employers may choose to rely on independent contractors
for risky operations and processes
...
This principle is also sometimes known as the
"deep pocket" justification
...
As a result, the private cost of the product or service will better reflect its
social cost
...
Ltd
...
The son negligently handled a
vehicle, causing injury to his father
...
The company, or rather their insurance company, later succeeded
in obtaining similar damages from the son
...
The case relates to the
situation where an employee is injured as a result of the negligence of a fellow employee
and the employer is held to be vicariously liable for the loss suffered as a result of that
negligence
...
This amounts to a general duty to take reasonable
care while at work
...
As a consequence, the employer may
be able to sue the employee for breach of contract
...
The electrician carelessly crossed wires and as the person turned on the
electricity the house caught a fire and burns the down
...
Electro
company’s attorneys will write and indemnify the employee
...
It is
most often applied to psychiatric disorders triggered by witnessing and accident or by the
sight or hearing of the event or its immediate aftermath’sor example an injury caused to
one's parents or spouse that usually results in post –traumatic stress disorder is a form of
personal injury and thus may give rise to a claim for damages
...
Hers must be sufficient proximity between the claimant and the accident
in terms of time and space
...
Where the claimant suffers nervous shock
through seeing injury to others even though he / she is in no danger himself or herself
...
The plaintiff was not physically
injured but suffered severe shock, which led to illness
...


Original example
Beena was about to enter the jewelry shop when her husband Steve called out to her from
across the road
...
Beena witnessed the incident and immediately suffered shock as a result
...
It is concerned with consequences; but these are said to be
legal rather than factual
...

Remoteness is akin to the reasonable foreseeability of an action causing an accident
...
Once a duty and relationship
between the parties has been established it must be shown that the damage caused is not
too remote
...
The plaintiffs claimed for normal loss of profits during the period of delay and
also for the loss of abnormal profits from a highly lucrative contract which they could
have undertaken had the boiler been delivered on time in this case it was decided that
damages could be recovered in regard to the normal profits as the loss was a natural
consequence of the delay
...


2 d) Causation
Causation refers to the chain of causation between the tort(s) and the damages
...
Causation is concerned with consequences and nonconsequences in a factual sense
...
He or she must show that this injury was caused
by the defendant’s negligence
...
The but for test is used
to establish whether the defendant‘s negliengence was the cause of the injury to the
claimant
...
Subsequently the plaintiff was shot in the same leg by another person
...
It was held that the defendant was only liable for the
first injury and not the amputation
...


1 e)
NOVUS ACTUS INTERVENIENS
Someone or something breaks the chain of causation between one person’s negligent act
and another’s injuries
...
If the intervening act is reasonably
foreseeable one cannot escape liability
...
The issues are whether
the whole sequence of events is the probable consequence of the defendant’s actions and
whether is reasonable foreseeable that these events may happen
...
If the defendant’s breach has placed the
claimant in a position where the natural event can add to that damage the chain will not
be broken unless the natural event was totally unforeseen, Also where the act of the third
party following the breach of the defendant causes further damage to the claimant, such
an act may be deemed to be novus actus; the defendant will not then be liable for damage
occurring after the third party’s act or Act of the claimant himself or herself
...
The bird eventually drops the twig at
a gas station
...


Let’s use a case scenario
Example: If one causes X and X brings about a non-foreseeable intervening act Y and Y
causes your injury, one is not liable
...
As a result the victim goes looking for the first available
party
...
Kanellos (1973)
Fire in restaurant Put out by carbon-dioxide fire extinguisher The sound of the safety
equipment is like rushing gas A customer yells “gas leak” and panic ensues The plaintiff
is trampled The plaintiff can not recover, the intervening act could not have been
foreseen
...
The ship was sent for repair and on this voyage suffered extra
damage caused by severe whether conditions
...
It was held that bad whether acted as a new interviening act for
which the defendant was not liable
...




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