Question 1 (a)

Epeli and Emalus Island restaurant

Issue: Whether Epeli and Emalus Island restaurant owe a duty of care to Simi?

Rules: As per Caparo Industries plc v Dickman [1990] 1 All ER 568

To determine the issue of duty, 3 formal requirements that must be satisfied to if establish a duty
of care exist between the parties.

1.      Foreseeability of the damage: The damage suffered by the (P) was reasonably
foreseeable.

2.      A sufficient ‘proximate’ relationship between the parties, i.e. there must be a
relationship of proximity between (P) and (D) in time, space and proximity

3.      Even where the elements are satisfied, it must be just and reasonable to impose such a
duty.

Application:

1.      Foreseeability of the damage: The damage suffered by the (P) was reasonably foreseeable.
According to the facts of the case and taking into account the flammable nature of the rum on the
desert poses a fire hazard to Simi.

2.      A sufficient ‘proximate’ relationship between the parties, i.e. there must be a relationship
of proximity between (P) and (D) in time, space and proximity. Simi is a patron at the restaurant
having dinner with his fiancée Litia. Epeli is an employee of Emalus Island restaurant who
serves as a waiter to Simi and Litia.  

 
3.      Even where the elements are satisfied, it must be just and reasonable to impose such a duty.
Bearing in mind the practical implications of serving flammable desserts in a restaurant, there is
an expectation of safety measures imposed on the staff and the management of the restaurant.

Under ‘special relationships, prior creation of hazard and control of danger a liability exist as
per Grimshaw v Ford 119 Cal. App. 3d 757, 174 Cal. Rptr. 348 (1981) –  where the impact
ignited a fire in the Pinto and killed the claimants’ family members. A judgment was rendered
against Ford. The jury awarded the Gray and the Grimshaw family damages.

Control of Danger: Under special relationship of ‘employer – employee’ relationship, where a

person was in control of a dangerous situation (lighting fire to desserts) or of someone who
posed a risk to the plaintiff (untrained staff in areas of a fire hazards, in and dealing with
flammable products on the menu posed a risk to the third party. Knowledge that a third party is a
potential danger to others; and in a relationship with the third party requires the (D) to take
reasonable steps to avoid foreseeable damage. Case authority: Carmarthenshire CC v
Lewis [1955] where it was held that the education authority had taken charge of the child and had
a duty to take reasonable care to prevent him from causing harm to others. In this scenario,
Emalus Island Restaurant failed to train their new staff in areas of fire hazards, yet allowed Epeli
to serve a dessert of a flammable nature to Simi.

Conclusion

On a balance of probabilities, Epeli and Emalus Island restaurant owed a duty of care to Simi.

Poor Private Hospital

Issue: Whether Poor Private Hospital Owe a duty of Care to Simi?

 Rule: Caparo Industries plc v Dickman [1990] 1 All ER 568

1.      Foreseeability of the damage: The damage suffered by the (P) was reasonably foreseeable.

Application: Having a lack of prompt arrival of an ambulance can cause more harm to Simi as
he was hyperventilating and resulted in a heart attack.

 
2.      A sufficient ‘proximate’ relationship between the parties, i.e. there must be a relationship
of proximity between (P) and (D) in time, space and proximity

Application: It can be argued that since the hospital did have an ambulance, but no petrol to
operate the vehicle, the proximity cannot be established as per Kent v Griffith the call was
accepted and an ambulance was dispatched, hence proximity was established.

 3.      Even where the elements are satisfied, it must be just and reasonable to impose such a
duty.

Application: As a policy consideration, it would be unfair to impose a duty of care to defendant

if they lack the means to execute such duty.

 Conclusion

On a balance of probabilities, Poor Private hospital does not owe a duty of care to Simi.

 Dr Breanna

Issue: Whether Dr. Breanna owe a duty of care to Simi?

 Rule:  Caparo Industries plc v Dickman [1990] 1 All ER 568

1.      Foreseeability of the damage: The damage suffered by the (P) was reasonably foreseeable.

Application: Lack of medical attention at a reasonable time, Simi’s injury became worse as he

was hyperventilating and suffered a heart attack.

2.      A sufficient ‘proximate’ relationship between the parties, i.e. there must be a relationship
of proximity between (P) and (D) in time, space and proximity

Application: Dr Breanna was present at the time of the incident occurred, the relationship of
proximity can be established as she is a only qualified doctor present at the time of the incident.
Though she failed to act.
 

 3.      Even where the elements are satisfied, it must be just and reasonable to impose such a
duty. As established in Lowns and Woods (1995) 36 NWWLR 344, it was held that, in certain
circumstances, a doctor was under a legal duty to go to the aid of a stranger and could be liable
in damages for failing to attend when called upon to do so. This decision was a significant
departure from the previously accepted notion that at common law, there was no obligation to aid
a stranger. As foreseeability and proximity was established in Lowns v Woods, it was held that
the doctor owed a duty to plaintiff. However, under policy consideration, it won’t be fair and just
to impose a duty of care to Dr. Breanna while she was off duty, and obviously was not
capacitated with proper medical gear to prevent the Simi’s injury.

Conclusion

On a balance of probabilities, Dr. Breanna does not owe a duty to care to Simi.

Question 2

Litia

 1)     Issue;

Whether Litia can claim for the psychiatric injury?

 For secondary victims to qualify for damages as victims of psychiatric injury sustained after
witnessing harm brought upon a loved one (Primary victim) through negligence of a third party.

Rule

4 elements as requisite as set in Al** v Chief Constable of South Yorkshire (1991) UK HL 5 to

establish psychiatric injury was inflicted through the (D)’s negligence.
 

1.      Have a relationship of love and affection with the primary victim.

Application: Litia and Simi are in a romantic relationship, thus love and affection can be
established.

2.      Have direct perception of the event with unaided senses. Litia was present and
witnessed the event when the incident occurred to Simi.

3.      Have proximity to the event or its immediate aftermath. Litia was having dinner with
Simi when this incident occurred. According to the facts Litia after the incident became
withdrawn and was diagnosed with depression may qualify as proximity for the event, as it does
not mention how later she was diagnosed aftermath of the accident. This vitiates the close
proximity of the event test.

4.      Experience psychological injury via a single nervous shock. According to the facts,

there is no indication whether Litia’s depression was first triggered by witnessing Simi’s incident
or a relapse of earlier depressive episodes not connected with Simi’s incident. This test vitiates
the single nervous shock rule.

Conclusion

On a balance of probabilities, Litia’s circumstances and facts does not qualify the Al**’s 4 point
requite test, therefore cannot claim for Psychological harm inflicted by the defendant. 

Mojee

Issue: Whether Mojee can claim psychiatric injury to D as a result of witnessing Simi’s injuries
as a secondary victim.

 
Rule

4 elements as requisite as set in Al** v Chief Constable of South Yorkshire (1991) UK HL 5 to

establish psychiatric injury was inflicted through the (D)’s negligence.

1.      Have a relationship of love and affection with the primary victim.

Application: Mojee and Simi are not in a love and affection relationship.

2.      Have direct perception of the event with unaided senses. Mojee was not present at the
accident scene, though was shocked to see Simi’s state upon the arrival of the hospital.

3.      Have proximity to the event or its immediate aftermath. Mojee witnessed Simi’s

injuries at the hospital straight after the incident occurred. According to the facts Mojee after two
weeks of the incidence, his demeanor changed and was diagnosed with anxiety.

4.      Experience psychological injury via a single nervous shock. According to the facts,

there is no indication whether Mojee’s anxiety episodes not connected with Simi’s incident. This
test vitiates the single nervous shock rule. As the question would arise If Mojee’s anxiety was
first triggered by witnessing Simi’s incident or a relapse of earlier anxiety episodes.

Conclusion

On a balance of probabilities, Mojee's circumstances and facts does not qualify the Al**’s 4
point requite test, therefore cannot claim for Psychological harm inflicted by the defendant. 

 
  

  

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