a).

Simi v Epeli and Emalus Island Restaurant

                                                                                                                                      

Issue: Do Epeli and Emalus Island Restaurant owe a duty of care to Simi?

Rule: A duty of care is defined as the responsibility of a person or business to act as a reasonable
person would act in a similar situation. A person who violates his duty of care by acting in a
negligent or reckless manner is then liable for any harm that another person suffers because of
his behaviour.  

Heaven v Pender (1883) 11 QBD 503, 509 per Brett MR “Whenever one person is by
circumstances placed in such a position with regard to another that every one of ordinary sense
who did think would at once recognize that if he did not use ordinary care and skill in his own
conduct with regard to those circumstances he would cause danger of injury to the person or
property of the other, a duty arises to use ordinary care and skill to avoid such danger.”

Caparo v Dickman, Identified three different ‘ingredients’ for duty of care: 1. Foreseeability of
damages 2. Proximity or Neighbourhood 3. Fair, just and reasonable to impose a duty

Fiji Gas Company Ltd v Secretary for Labour (1975) 21 FLR 133 - Employee was a Lautoka
Branch Manager, working Monday to Friday. Obliged to report to Suva at end of month. He
required transport to do his work. Accident when driving employer’s van on Sunday evening
after returning from Office after preparing monthly report. Employee was acting in the course of
his employment when accident occurred

There are three requirements for proving vicarious liability: 1. A tort must have been committed
2. There is an employee-employer relationship 3. There is sufficient connection between
commission of the tort and acts arising pursuant to the relationship

Application: Applying general rules of duty of care, Epeli was a waiter when he poured more
than necessary amount of rum onto the plates resulting in fire that caused Simi’s burn.  Epeli
failed in his duty of care by not being careful when serving Simi, and he himself had created the
accident. Heaven v Pender (1883) 11 QBD 503, 509 per Brett MR, “who did think would at once
recognize that if he did not use ordinary care and skill in his own conduct with regard to those
circumstances he would cause danger of injury to the person or property of the other, a duty
arises to use ordinary care and skill to avoid such danger.”  Epeli did not use ordinary care and
skill in his own conduct, he had to use care and skill to avoid danger. Epeli was dumbstruck and
did not assist Simi when the fire caught him, he never showed any duty of care towards Simi.
Applying Caparo v Dickman, It was reasonably foreseeable that more than enough rum will
cause fire and pose a risk, proximity of neighborhood, he was in close proximity and serving
customers and it is fair, just and reasonable to impose a duty.

As for the Emalus Restaurant, the principles of vicarious liability and the three requirements
would make it liable too, as a tort has been committed by Epeli which was duty of care, there is
an employer and employee relationship. The tort on Simi had been committed whilst Epeli being
employed by the restaurant. Applying Fiji Gas Company Ltd v Secretary for Labour (1975) 21
FLR 133, Employee was acting in the course of his employment when accident occurred, similar
to the current situation that Epeli caused this accident while being employed by the Emalus
Island Restaurant.

 Conclusion: Based on a balance of probabilities, Epeli and his employer, Emalus Island
Restaurant would be held liable for the injuries to Simi.

b). Simi v Poor Private Hospital

 Issue 1: Does the Poor Private Hospital owe a duty of care to Simi?

 Rule: in Caparo Industries v Dickman "three-fold test" to determine whether a duty of care is to

be found in a new situation:

·         harm must be reasonably foreseeable  ·         

.         the parties must be in a relationship of proximity

·         it must be fair, just, and reasonable to impose liability.

Kent v Griffiths [2000] 2 All ER 474 is an English tort law case from the Court of

Appeal concerning negligence, particularly the duty of care owed by the emergency services;
particularly the ambulance service. The emergency services do not generally owe a duty of care
to the public except in certain, limited circumstance

 Application: The poor private hospital does not owe a duty of care to Simi, Kent v
Griffiths [2000] 2 All ER 474 is an English tort law case from the Court of
Appeal concerning negligence, particularly the duty of care owed by the emergency services;
particularly the ambulance service. The emergency services do not generally owe a duty of care
to the public except in certain, limited circumstances, this is a private hospital and they would
have had a duty of care if payment of service had been made, harm must be reasonably forseen ,
and not having fuel in the ambulance , it can be reasonable forseen as having a presence of risk,
the parties were not in a relationship of proximity, Poor Private Hospital , owes no duty as it’s a
private hospital as no form of commitment took place between both the parties that is Simi and
the hospital. It is not fair, just and reasonable to impose a libilty on the hospital.

Conclusion: 

On the balance of probabilities, the poor private hospital is not liable for duty of care to Simi.

 
Issue; does Dr. Breanna owe a duty of care to Simi

Rule: in Caparo Industries v Dickman "three-fold test" to determine whether a duty of care is to

be found in a new situation:

·         harm must be reasonably foreseeable  

·         the parties must be in a relationship of proximity

·         it must be fair, just, and reasonable to impose liability.

Applying in Caparo Industries v Dickman , The harm suffered by Simi was not foreseeable by

Dr Breanna, an off duty doctor cannot be carrying medical equipment foreseeing the risk of not
having this medical resources on spot being available,  it can be argued that she did not have the
resources to administer any form of medical treatment, she was not  in relationship of proximity
with Simi as she was not asked to provide medical treatment. A duty of care liability cannot be
imposed on Dr Breanna as a doctor-patient relationship has not been established. It would be
unfair to hold Dr Breanna liable because she was not equipped, neither it would be just as she
was off duty and it would not be reasonable as she was having a private dinner

Conclusion

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

Discuss whether Litia and Mojee can claim for psychiatric injury they suffered.

Issue

Can Litia claim for Psychiatric injury that she suffered?

Rule

1. Recognized Psychiatric Harm

2. Reasonably Foreseeability

3. Primary and Secondary Victims

McLoughlin v O’Brian [1983] 1 AC 410

In finding for C the House of Lords emphasised that recovery in such cases was not limited to
those who were participants in the event, and who feared that they or a close relative would
suffer some sort of personal injuries. 
Chadwick v British Railways Board ([1967] 1 WLR 912) the duty of D was confirmed to extend
to those who came upon the ‘immediate aftermath’ of an incident, even if they do not see or hear
the incident with their unaided senses.

Application

Litia was with Simi when the incident. Depression is a recognized injury under PTSD It is
reasonably foreseeable that she will also suffer from the incident as she has witnessed that her
boyfriend got burnt, any reasonable person would after witnessing such incident will think it
could have happened to them. Applying In McLoughlin v O’Brian spouse was able to claim
damages after seeing injured family members from accident caused by defendant’s negligence,
even though Simi and Litia are not in matrimonial relationship, she has seen her boyfriend of
four years getting hurt by the defendants acts. Chadwick v British Railways Board ([1967] 1
WLR 912 the duty of D was confirmed to extend to those who came upon the ‘immediate
aftermath’ of an incident, even if they do not see or hear the incident with their unaided senses.,
the elements of Chadwick v British Railways Board ([1967] 1 WLR 912) are also met as Litia
had been a seen the consequence if the accident,

Conclusion

On the balance of probabilities, Litia can claim for psychiatric injury damages.

Issue

Can Mojee claim for psychiatric injury he suffered?

Rule

1. Recognized Psychiatric Harm

2. Reasonable Foreseeability

3. Primary and Secondary Victims

Application

Mojee has been diagnosed for anxiety, a recognized psychiatric harm, however him being a
nurse it is reasonable foreseeable that he will come across such patient and has to be prepared in
the call of duty. In hospital it is bound that accident and cases of such gravity will be
encountered by nurses. He did not see the incident happening as he was not at the restaurant and
is a secondary victim, the elements of psychiatric injury to be claimed are not met.
Conclusion

On the balance of probabilities it is concluded that Mojee cannot claim for psychiatric injury
damages.

Reference

Heaven v Pender (1883) 11 QBD 503, 509 per Brett MR

Caparo v Dickman

Fiji Gas Company Ltd v Secretary for Labour (1975) 21 FLR 133

Kent v Griffiths [2000] 2 All ER 474

McLoughlin v O’Brian [1983] 1 AC 410

Chadwick v British Railways Board ([1967] 1 WLR 912

Permalink

In reply to Asishna Ansu

Re: Tutorial 6 (Week 8): Liability for Failure to Act
(Omissions)

by Khalid Hassan - Monday, 27 April 2020, 3:16 PM

A nice submission, similar to my views.
Made nice reading.

Regards

Khalid
PermalinkShow parent

In reply to Asishna Ansu

Re: Tutorial 6 (Week 8): Liability for Failure to Act
(Omissions)
 by Suliana Lefaoseu - Tuesday, 28 April 2020, 12:07 AM
Talofa Asishna

I agree with every conclusion you have provided. All the defendants are held liable for their
actions and owe a duty of care to the plaintiff except Dr. Breanna.

Cheers.
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