LAW OF TORTS AND CASE ANALYSIS

Question 1

Issue

 Philip is wrongly or accidentally been the victim of reckless and careless driving by Jake

which brings in the circumstance regarding tort of negligence.

 Simon, is treated wrongly by the junior doctor who incorrectly decided that amputating his

arm would be the appropriate treatment which brings in the circumstance regarding tort of

negligence.

 Fatima suffered a nervous breakdown after hearing the news of her son which causes her

psychiatric tort of damage.

 Susan suffered post-traumatic stress disorder which also causes her psychiatric tort of

damage.

Rule

Under the subsection (1) of section 1 of the “Law Reform (Contributory Negligence) Act

1945”, it is stated that:

“Due to his own fault or whether relatively of the liability of some other persons

or person, where any individual agonises damage, by cause of the liability of the person

suffering the damage, a claim in esteem of that damage intend to not to be defeated; but the

damages are recoverable in esteem thereof shall be abridged to such amount, if the courts

considers just and fair regarding claimant’s share in the accountability of the damage.”
 Moreover, it is provided that, to conquest any defense rising under an agreement, this

subsection shall not function. And, it is also provided that where any representation offering for

the limitation of liability is valid to the claim.

Analysis

As it was observed in “Cassidy v Ministry of Health [1951] 2 KB 343”, in which the

plaintiff demanded a regular treatment, at a hospital run by defendant in order to fix the bones in

his wrist. Because of one of the doctor’s negligence, the operation affected his fingers to turn out

to be stiff. Hence, on the basis of displaced liability, the plaintiff indicted the defendant in the

tort of negligence. The issues that were highlighted are, if alongside doctor, negligence is upheld,

then under the principle of displaced liability, it is every now and then possible to hold their

employer liable. However, the torts pledged by an employer’s servant in the period of their

service, this principle holds that an employer is legally accountable. Under modern law, the

corresponding term of ‘servants’ is ‘employee’. Therefore, for the negligence, the doctor who

was responsible was not one of their servants, as argued by the defendant, as they didn’t have

any influence over his job.

So, in the background of displaced liability, the issue was the significance of ‘servant’.

Accordingly, the “Court of Appeal” held in the favour of plaintiff that defendant was vicariously

liable. The practices he is occupying in the hospital and especially he is engaged in the practical

and specialised work, does not justify in any means that doctor is certainly not a servant.

Moreover, the court held that if a person was chosen for the occupation by the defendant, he is a

servant of the defendant and is entirely associated into the defendant’s administration.
 Therefore, in the case of Simon it is quite visible that the hospital is solely responsible for

amputating his arm and his inappropriate treatment.

Whereas, it was observed in “Scott v London & St Katherine Docks Co [1865] 3 H&C

596”, that applicant was injured when weighty bags of sugar cane fell from the defendant’s

crane, as claimant was a dockworker. In the tort of negligence, the appellant took legal action

against the defendant. The issues that were highlighted in this case is to proof negligence which

requires the proof that the duty of care is breached by the defendant to the appellant. It is

necessary to proof that the defendant lacked to act as a reasonable person in their role, by the

appellant and must establish, to evaluate breach is made. The issue for the appellant was to prove

negligence and if they can’t, how it can be proven that what the defendant did to enforce the

impairment.

However, the “Court of Appeal” held that, in this particular case a verdict of liability was

probable. On the doctrine of “the thing speaks for itself”, the court decided to rely upon. By

analysing the complete situation, the court proposed the principle that this circumstance do not

normally incur in the absence of negligence of some kind. Hence, the court held that, if someone

had not remained negligent, this accident was clearly the sort of thing which would never

incurred. It was considered liable, hence the defendant was not able to prove that he had not

breached his duty.

Therefore, the same goes according to the case of Philips, as he can claim against the tort

of negligence against Jake, due to this rough and reckless driving.

 While, as it was observed in the case of “Rahman v Arearose Ltd [2001] QB

351”, in which Mr Rahman was viciously assaulted at work and to secure him from the assault

his leading defendant or the employer had negligently miscarried to take step. This resulted onto

develop psychiatric conditions and Mr Rahman wanted compensatory damages in negligence.

The issue that was highlighted in this case is that the injury Mr Rahman suffered with was

breached by both defendants i.e. surgeon and employer at work. According to the “1978 Act of

Civil Liability”, both defendants were equally responsible for the amount of damage that was

caused to the fast food manager, as argued by the second defendant.

Hence, the decision that was held by the Court of Appeal was that, in the cases where the

torts incurred concurrently, only then the 1978 Act is valid and for the financial loss and initial

attack, the first defendant was solely liable. Whereas, for the blindness, the second defendant was

solely liable. The verdict announced by the court was that, one-third of the damages will be paid

by the first one and two-thirds from the second one.

Conclusion

From the above discussion it can be quite clearly illustrated that the torts of

liability is considered an important principle and the losses faced by Philips, Simon, Fatima and

Susan were all somehow associated with the torts of liability and torts of negligence. All case

laws relating to the case of each and every claimant is analysed briefly and commentary

regarding the advice has been made significantly.