Tort means civil wrong, so where in criminal law a wrong is a crime, in civil law it is called a tort.
Negligence is one of the most important areas in tort. In order to establish negligence the following must be assessed:
- Was the defendant (the person you hold responsible for the ‘tort’) careless in his behaviour?
- And did this careless behaviour cause you a loss or injury?
Furthermore the following elements must be present in order for your claim to be successful:
- A duty of care must be owed by the defendant to you
- The defendant must have breached this duty of care
- And this breach must have caused you to suffer loss or damage
Is a duty of care owed to you?
The question of whether a duty of care exists is governed by the leading case of Caparo V Dickman. When deciding whether there was a duty of care owed the court will ask three questions:
- 1. Was your loss foreseeable?
- 2. Was there sufficient proximity between you and the defendant
- 3. Is it fair just and reasonable to impose a duty of care?
A good example of how this is applied can be found in one of the most famous cases in British legal history, that is the case of Donoghue v Stevenson (also known as the “snail in the bottle” case) which all lawyers have no doubt studied at some stage. Mrs Donoghue went to a café with her friend. Her friend bought a ginger beer and Mrs Donoghue drank some of the ginger beer and poured the rest into a glass to discover that a dead snail was also in the bottle. As a result, Mrs Donoghue was unwell suffering nervous shock and in a landmark Judgment the House of Lords found in her favour by a margin of 3-2. In this case Lord Atkin delivered another famous speech:
“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 that are called in question.”
What is proximity?
This means that you either need to be in the vicinity of the accident (for example you wouldn’t be able to claim compensation if you heard about a car accident on the radio) but you might be able to if you were present at the scene of the accident. This can become fairly technical so I wont bore you with the finer details.
In the case of Bourhill V Young the claimant suffered a miscarriage after hearing a fatal accident from around 50 yards away. She was unable to claim against the person at fault for the accident because there was no proximity between the two parties and it would not have been foreseeable that she was like to be harmed in this way by the accident. The Courts require a very close degree of proximity in these type of nervous shock or psychiatric harm cases
What does just fair and reasonable mean?
Sometimes even were loss or damage is foreseeable and there is proximity between parties, it may not be ‘just fair and reasonable’ to impose a duty of care for certain reasons. For example if a bank robber is injured by his accomplice’s careless driving in the ‘get away’ a claim would likely fail on the grounds of public policy; because the law does not exist to help those who are engaged in crime!
Conclusion:
If you can show:
- 1. That the defendant owed you a duty of care
- 2. That a reasonable person would have foreseen that you might be injured by the defendant’s acts
- 3. That there was sufficient proximity between the both of you
- 4. And that it is fair just and reasonable under public policy for the defendant to have owed you a duty of care
Then a duty of care is owed by the defendant and if this duty has been breached, you may be able to sue him for that breach and claim compensation for your injury/ loss sustained.
We understand that the above can seem a bit like gobbledygook, but we thought you might be interested in knowing the actual law behind most accident claims but don’t hesitate to give us a call if you want everything explained to you in plain, easy to understand language.
