Elements of a successful negligence claim
In order for a claim in negligence to succeed, four elements have to be satisfied:
Duty - does the law recognise that a duty of care is owed?
Breach - has the defendant failed to live up to the standard of care required?
Damage - has the claimant suffered injury or loss?
Causation - is the defendant wholly or partly responsible for bringing about such loss or injury?
The principle imposing liability in tort for such careless behaviour was established in the leading case of Donoghue v Stevenson and remains valid today subject to inevitable refinements and modifications.
Gillian owes a duty of care to her clients. She was in dereliction of this duty by allowing George (in breach of an express prohibition) to drive Marcia. Marcia has suffered demonstrable harm in the form of the immediate assault and psychological aftermath. However, it is doubtful that the necessary causation exists. Even though it can be argued that were it not for Gillian’s actions, Marcia would not have suffered harm, the damage to Marcia can be said to be too remote in that it was not a foreseeable consequence of her actions. In The Wagon Mound (No.1) , Viscount Simonds held that “the essential factor in determining liability is whether the damage is of such a kind that the reasonable man should have foreseen”. If George were incapable of driving and physical injury resulted, this might have been reasonably foreseeable but a sexual assault is not a reasonably foreseeable consequence of breaching the prohibition of non-employees from driving. In any event, the assault by George is a novus actus interveniens - an action unrelated to Gillian’s negligence breaking the requisite chain of causation.
It follows therefore that the taxi firm will not be held liable: in addition to the issue of remoteness discussed above, while the firm could be held vicariously liable for the acts of employees such as Gillian, George was not an employee. Although, if he were, even so extreme an act as a sexual assault might be regarded as “in the course of his employment” (Lister v Hesley Hall ). The firm is probably further protected by the fact that although in accordance with the principles of Lister (warden of a school boarding house sexually abusing pupils - employers held liable) they could be held responsible for such an attack were it carried out by an employee, by adopting a policy of female-only employees and expressly forbidding the delegation of driving, they might be regarded as having taken reasonable steps to care for the safety of Marcia in this respect.
George will however be held liable for the psychological damage to Marcia as well as any physical injury. There has been considerable reluctance on the part of the courts to allow recovery in respect of purely psychiatric illness on the grounds of the difficulties surrounding foreseeability of such damage and the pubic policy reluctance to “open the floodgates” to such claims. However, in Page v Smith it had been argued in the Court of Appeal that claims should succeed where the risk of psychiatric illness was foreseeable in the case of a person of reasonable fortitude. This approach was upheld by Lord Lloyd who stated that the “floodgates” argument in respect of encouraging bogus claims was overcome by the control mechanisms imposed by the law: proximity between defendant and victim and the requirement that a defendant should have foreseen “injury by shock to a person of normal fortitude or ordinary phlegm”. Thus there should be no doubt as to George’s liability to Marcia not only in respect of the assault but also in respect of her mental illness since such a consequence can be anticipated even in persons of normal fortitude.
The assault by Marcia upon Paul clearly gives rise to liability on the part of Marcia in the torts of assault and battery. However, the question arises as to whether there is any responsibility on the part of Marcia’s Consultant Psychiatrist and the hospital authorities which employed him. Clearly, if Marcia were to suffer damage as a result of negligent medical treatment, there would be primary liability to her on the part of the practitioner and vicarious liability on the part of his employers. However, can there be liability to Paul who was a third party and not the patient? The authors of Markesinis and Deakin’s Tort Law concede that in America such actions have been successful but comment:
“In English law, actions of this nature are fraught with difficulties because they involve potential liability for an omission (to warn or prevent conduct) and the voluntary act of an intermediary.”
They argue that the suggestion that a doctor can never owe a duty of care to someone who is not his patient is “untenable”. It was held in Sion v Hampstead HA that a doctor can in principle be held liable to the relatives of a patient if the particular requirements of proximity and public policy (discussed above) can be satisfied. Each such case will turn upon its own factors and there must be some doubt that the Consultant or his employers would be held liable to Paul in this case. Again the issue of foresee ability will have to be examined. It is said that Marcia’s condition left her with an aversion to male drivers. This much would have been known to the Consultant. Indeed, the “strong recommendation” of his employers was that she was not to be transported by male drivers. If, therefore, as a result of the Consultant disregarding this advice, harm were suffered by Marcia in the form of an exacerbation of her illness, it is highly probable that he would be held liable to her. (It should be noted in this context, however, that the Consultant may seek to exonerate himself by arguing that the “therapy” of exposure to male drivers was justified by reference to the accepted standards of his profession and the accepted state of medical knowledge prevailing at the time.) However, even if it were established that his actions in placing Marcia with Paul were negligent, to what extent does his duty extend to Paul?
Tags: breach, claimant, dereliction, donoghue v stevenson, duty of care, negligence, psychological aftermath, sexual assault
