Jim’s Estate v Trump Investments.

Survival action

1. Duty of care

This is a novel fact scenario, so a duty of care must be established through firstly satisfying the test of
reasonable foreseeability (Donoghue v Stevenson). Was Jim likely to be so closely and directly affected
by Trump Investment’s failure to act on the warning, that Trump should have had him in mind while
doing the omission?

Since Jim is the neighbor of the house in which a fire was seen, and had reported his concern, I suggest
the test of reasonable foreseeability is satisfied (Donoghue v Stevenson).

Next, the salient features approach in Caltex Refineries v Stavar should be applied. Jim was reliant on
Trump to address the risk, Trump had complete control of any actions to reduce the risk, the nature of
harm was serious, and it was likely. These factors would be enough to establish a duty of care (Caltex
Refineries v Stavar).

There are no policy considerations which could negate the existence of a duty of care. Note that due to
the ruling in Annett’s, Jim hearing the news of the fire over the telephone will not exclude liability from
Trump Investments.

2. Breach of Duty

The standard of duty owed by Trump was that of a reasonably prudent person (Vaughn v Menlove).

The Civil Liability Act (CLA), 5B-C will establish whether or not the duty of care was breached. The risk of
the reported fire spreading was reasonably foreseeable s5B(1)(a), and it was not an insignificant risk
under s5B(1)(b). The key question is what a reasonable person in Trump’s position would have done.
Consider under s5B(2) that the harm was likely to occur, and if it did would be serious. Moreover the
burden of taking precautions was low, meaning it is more likely an ordinary person would have taken
them (see Wagon Mound 2). Lastly, there was no social utility in the omission, (contrast with Zhi Meng
Jiao). I suggest that there is a breach of duty under the CLA, resulting in actual damage.

3. Causation and the scope of liability

Under s5E the onus of proof is on the plaintiff (Jim’s estate) to prove causation on the balance of
probabilities. Under s5D(1)(a), the omission of Trump was a necessary condition of the harm; if the
company had taken action, the fire would not have reoccurred and spread. Under s5D(1)(b), Trump’s
scope of liability should be analysed. The harm is not too remote; it is a reasonably foreseeable
consequence of Trump’s omission.
However, the decision of the students to light and leave the fire may be novus actus interveniens. If so,
this would breach the chain of causation. It is rare that a defendant would be held liable for the actions
of a third party, but in this case, the spreading fire is just the kind of thing likely to occur if Trump
declined to take action (Dorset Yacht Co.) I suggest that the student’s actions would not be novus actus.

4. Defences

Trump would raise the defence of contributory negligence, referring to when Jim ran into the fire. Under
the CLA, the court can reduce the plaintiff’s damages by 100% (s5S) as a consequence of contributory
negligence. However this is unlikely to occur, as the court must apportion damages according to the
separate parties’ departure from a reasonable standard, (Pennington v Norris). In practice, in an action
in negligence, the defendant is culpable (Hoyts v Wynbergen) for at least 50% of the damage.

5. Damages

In the survival action, the estate can only claim damages from the period between the injury and the
death. Jim’s estate would claim medical expenses and loss of earning capacity.

However, the court will make a reduction for the known vicissitude of life, Jim’s unrelated heart
condition (Jobling). The purpose of damages is to put the plaintiff in the position they would have been
in but for the accident (Lutz v Parramatta). Therefore it is likely that Jim’s estate will only receive
damages for the period of six months between his original injury, and after that they would be reduced
according to the severity of his heart condition.

B. Thelma and Philip v Trump Investments

Both Thelma and Philip would bring actions for psychiatric injury.

1. Duty of care

The duty of care to Thelma is a novel fact scenario, and has been established above in the action by
Jim’s estate.

The duty of care owed to Philip falls within the established category of a duty to a rescuer. Trump
investments owes a duty to Philip, who goes to the rescue of Thelma, (a party Trump endangered
through their negligence) (Chapman v Hearse).

Both Thelma and Philip suffer purely psychiatric harm, and so must overcome the limitations on liability
provided by the CLA.

First, under s32(1) the psychiatric injury must be of normal fortitude. I suggest this is satisfied in this
case, by reference to Tame and the level of normal fortitude required there.
Thelma, under s32(2), may have suffered sudden shock, was at the scene and would have witnessed
herself and family imperiled, and had a close relationship with her imperiled brother and mother. Philip,
under s32(2), simply witnessed at the scene people being injured and put in peril, (Wicks v State Rail). I
suggest these factors would be enough to overcome s32 for both plaintiffs.

Philip must them also satisfy s30, which he does, having witnessed at the scene the fire and danger to
Jim’s family. Although he did not witness the fire starting (as far as we know), the family continued to
be in peril until taken to satisfy (Wicks v Rail).

Both Philip and Thelma suffered a recognized psychiatric illness under s31.

2. Breach

Trump’s breach of duty was established above under s5B-C of the CLA; the risk of fire resulting from the
omission to act was foreseeable, not insignificant, and using the Shirt formula, a reasonable person
would have taken precautions.

3. Causation and scope of liability

As in Jim’s estate’s action, the injury to Philip and Thelma resulted from the fire. The fire was a
necessary condition for the occurrence of the harm (CLA s5D(1)(a)).

The injuries also fall within the scope of liability, since injury to someone within the house was a
reasonably foreseeable risk, and thus liability extends to any rescuer (Chapman v Hearse). The damage is
not too remote from Trump’s negligence.

4. Defences

There are no available defences.

5. Damages

Thelma could claim special damages for her medical expenses between the injury and the trial. She
could also claim non-economic general damages in the form of damages for pain and suffering.

If Philip’s working capacity has suffered, he could claim special damages regarding loss of earning
capacity. He could also claim general damages for economic loss of earning capacity. However, we are
not given this information on the facts. It is more likely that he would claim non-economic general
damages, in the form of pain and suffering damages.

Both Thelma and Philip could possibly recover economic general damages for medical treatment, if their
conditions require it.
C. Dora’s Family v Trump

Dora’s family can only bring a Compensation to Relatives claim if Dora could have brought one if she was
living (Comp to Relatives Act, s3(1)). Therefore, duty, breach, and causation must be established
between Dora and Trump investments.

1. Duty of care

This has been established previously in Thelma’s action.

2. Breach

This has also been established in Thelma’s action.

3. Causation

Again, please see discussion in Thelma’s action.

The above are relevant because both Thelma and Dora were residents in the house at the time of the
fire, and what is owed to one is equally owed to the other.

4. Damages

Generally, an action cannot be maintained for loss where that party is dead (Baker v Bolton). However
the Compensation to Relatives legislation has abrogated this.

The condition precedent in the CRA s3(1) has been satisfied above. Dora’s family must fit into the
definition of family in CRA s5 and s7. If the action was brought by her children, they would be within this
definition.

However, they must also prove that Dora’s death was productive of actual financial loss, (Franklin v
South Eastern Railway). On the facts, we are never told whether Dora is earning or not. If she is, the
children will be able to claim damages for her loss of earning capacity. If she provided services to the
children, this is also considered a financial loss, assuming a market value can be placed on them (Nguyen
v Nguyen). If there is no loss of income or services, no damages will be recoverable.

D. Baroque Carpentry V Trump

The company would bring an action for loss of service due to Jim’s injury. The action cannot extend to
the period of Jim’s death (Barclay v Penberthy).
The duty, breach and causation of Jim’s injury is established above. The contributory negligence of Jim
may lead to a reduction of damages available to Baroque, and the damages they could receive will also
be limited by the vicissitudes of life principle discussed earlier.

Baroque would only be able to recover direct financial losses; the actual cost of hiring a replacement
carpenter for the six months of Jim’s injury before his heart condition began.

If they paid Jim sick leave of any kind, Baroque would also be able to recover those costs.

Other legal issues

Trump Investment’s negligence is not an act, it is an omission. A defendant will not often be held liable
for an omission to act, as there is no automatic requirement in law to take an action.

However, in this case, I suggest the omission or failure to act was sufficiently negligent that it would give
rise to legal actions in tort law.