Legal Methods, Research and Writing II April 10, 2018 Nailah Robinson

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1 Legal Methods, Research and Writing II April 10, 2018 Nailah Robinson Disclaimer I have never been involved with the teaching or examining of Tort. I do not have access to the course materials. Our focus here is on legal writing. To succeed in your classes, I recommend attending your lectures and tutorials, consulting your class materials, and trying sample questions. You will see that I quote extensively on Professor Kodilinye s book. I always found it helpful to use a textbook or course-notes in preparing my past-paper questions. I found that writing the law in this clear and concise way helped me to remember it when I got into the real exam. Remember the recommended format for answering problem questions: Facts: (no need to repeat what is given in question) Issues: (can be done in subheadings) Rule: A mini-essay on the relevant law of the area (evolving doctrine, different interpretations of statute, conflicting precedents). Never forget the simple but powerful advice from former lecturer Mr. Owusu: Always state the principles clearly. You must take care to give a proper introduction, highlight any ambiguities, and explain which test you will be using. Application: Applying the test described above. No new law to be introduced in this section. Careful examination the facts from each point of view. Conclusion: Summarizing the results of your Application section and saying which side has the stronger argument. Tort Exam April/May Establishing in a claim for negligence that there was a breach of duty by the defendant is not an easy task in the first place; and this is even more so where the cause of the accident is unknown. Critically discuss this statement. Outline: Introduction How does one establish breach of duty? Is this an easy task? 1

2 What happens when cause of accident is unknown res ipsa loquitur Requirements Burden shifts to defendant Is this harder or easier than general breach? Conclusion Introduction [From Kodilinye] Negligence is the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff. The courts will generally examine the requirements for negligence sequentially: 1) whether there was a duty of care, 2) whether there was a breach of that duty, 3) whether the plaintiff has suffered damage for which the defendant is liable. This last requirement includes two aspects: causation in fact and remoteness in law. There are sometimes difficulties in proving all three components. Having decided that a duty of care was owed to the plaintiff in the particular circumstances, the court s next task is to determine whether the defendant was in breach of such duty. The test is an objective one whether the reasonable man, placed in the defendant s position, would have acted as the defendant did. In assessing the standard of care required, the court may consider the risk factor which has four elements: 1. The likelihood of harm 2. The seriousness of the injury that is risked 3. The importance or utility of the defendant s conduct 4. The cost and practicability of the measures to avoid harm The burden of proving negligence always lies on the plaintiff, but where the cause of the accident is unknown, he or she may be assisted by the doctrine res ipsa loquitur the facts speak for themselves. Where this is successfully invoked, the effect is to shift the onus onto the defendant to show that she was not negligent. The defendant may have to show the true cause of the accident or that she used reasonable care. To rely on the doctrine, the plaintiff must show: The thing causing the accident was under the defendant s care The accident was of such a kind it would not ordinarily have happened without the defendant s negligence. The doctrine has been used, for example, where a car suddenly mounted a sidewalk, where a parked bus suddenly caught fire, and where tree fell. 2

3 Where the doctrine applies, the defendant will often try to show that there was a latent defect or mechanical failure. This plea will not usually absolve the defendant unless she can also show that she routinely inspected and cared for the machine/vehicle. [You can expand what is written above by giving examples from cases. Make sure you look back at the question before you write your Conclusion to make sure that you are answering exactly what you were asked.] Conclusion It is true to say that establishing breach of duty is not an easy task. However, the second part of the statement is not entirely accurate: if res ipsa loquitur applies, the burden of proof shifts to the defendant. It can be argued that this makes the plaintiff s task easier rather than harder. While it might also be argued that res ipsa loquitur is the exception rather than the rule, given its widespread use in cases such as road accidents, it is suggested that the doctrine is common enough that it can generally be said that the plaintiff s task is not necessarily harder where the cause of the accident is unknown. [Notice that the hardest part of answering the question is sometimes the structure. This is not a question that calls for a full examination of the law of negligence. But nor does it call only for a focus on res ipsa loquitur. You have to strike a balance. I cannot emphasize enough how useful it is to write these essays before you get into the exam. Not only can you research the content, but you can play around with the structure until you find the best arrangement.] 3

4 2. The occupier owes no real duty of care to trespassers, no matter how much it may be dressed up by some as one of common humanity. Critically examine this statement. [This is a narrow question. You must focus on duty to trespassers and not spend too much time discussing general occupier s liability.] Outline Introduction: some territories have OLA, others are governed by common law. The principles are generally the same. Occupiers owe a common duty of care to visitors which includes invitees and licensees. Trespassers are not protected by the statutes and special common law rules apply to them. Evolution of the doctrine: until 1972 only duty was to refrain from deliberately or recklessly causing harm to trespassers (Addie v Dumbreck (1929)). New rule: in 1972 British Rly Board v Herrington, no duty of care, but common humanity duty to act in accordance with common standards of civilised behaviour. This includes posting warnings and notice boards, building fences and chasing off trespassers. Trespasser who persists will usually not be able to sue. There have been some Jamaican cases on the topic where workmen trespassed in forbidden areas at work. In one case employer was found not liable, in second case, liability found. It has been argued that this was more akin to employer s liability, however. Conclusion agree with statement. 4

5 4. Tito and Mia, his classmate, had been to a party where they had both drunk too much. Tito offers Mia lift home after the party. She accepts. On the way there, Tito runs a red light and collides with a bicycle ridden by Omar. Omar is wearing dark clothing and his bicycle has no lights. As Mia gets out of the car to assist the fallen Omar, a car driven by Kashawn some 10 miles per hour above the speed limit strikes her. Both Omar and Mia are taken to hospital where Omar is given a penicillin injection to which he proves allergic and suffers a severe reaction. Mia is given two paracetamol pills and sent home but a thorough examination would have revealed that she had suffered serious internal injuries. She is now a quadriplegic. Advise Omar and Mia. Outline of issues (not part of answer). 1. Can Mia sue Tito? (Tito is drunk.) (Mia is also drunk) 2. Can Mia sue Kashawn? (10 miles per hour above speed limit) (Mia is drunk, walks into street) 3. Can Mia sue hospital? (no thorough examination) (no contributory negligence) 4. Can Omar sue Tito? (Tito is drunk, runs red light) (Omar has dark clothing, no lights) 5. Can Omar sue hospital? (common allergen) (no contributory negligence). Law Definition of Negligence [from Kodilinye] Negligence is the breach of a legal duty to take care which results in damage, undesired by the defendant, to the plaintiff. There are three elements: A duty of care owed by the defendant to the plaintiff; 5

6 Breach of that duty by the defendant; and Damage to the plaintiff resulting from the breach. Historically, similar actions could only be founded on breach of contract and the tort of trespass to the person. However, the tort of negligence has emerged as the principle means of compensating victims of accidents, particularly road accidents. In the present case, it will be explored whether Omar and Mia can bring actions for negligence against Tito and the Hospital. It will also be explored whether Mia can bring an action for negligence against Kashawn. Duty of care In general, a duty of care will be owed wherever in the circumstances it is foreseeable that, if the defendant does not exercise due care, the plaintiff will be harmed. There are a number of common situations in which it is well established that a duty of care exists. For example, the driver of a vehicle on the road owes a duty of care to other road users, pedestrians and occupiers of premises abutting the highway. In fact, the driver of a vehicle is under a duty to take proper care not to cause damage to other road users and to fulfil this duty should keep a proper lookout (Almon v Jones (1974)), observe traffic rules and signals (James v Seivwright (1971)), avoid excessive speed (Waaldyk v Trim (1977)), and avoid driving under the influence of alcohol or drugs (Owens v Brimmell (1976)). Breach of Duty Having established that a duty of care was owed, the court s next task is to determine whether the defendant was in breach of such duty. Under the doctrine of res ipsa loquitur, where there is prima facie evidence of breach of duty, such as failure to observe any part of the Highway Code, the burden shifts to the defendant to prove he was not negligent. 6

7 Causation Having established that the defendant owed a duty of care and breached the duty, the court next turns to causation. There are two elements: causation in fact and remoteness of damage in law. However, the defendant may not be liable if the act of a third party breaks the chain of causation. Causation in fact A useful test which is often employed is the but for test. That is to see whether the damage would not have happened but for the defendant s negligent act. In Barnett v Chelsea and Kensington Hospital Management Committee (1968), the deceased experienced persistent vomiting after drinking a cup of tea. He went to the casualty department of the defendant hospital. A nurse telephoned the casualty officer who was himself tired and unwell, and who recommended that the deceased return home and consult his own doctor in the morning. Some hours later, the deceased died of arsenic poisoning. In an action for negligence, it was held that while the hospital was in breach of its duty, this breach could not be said to have been the cause of death it could not be said that he would have lived but for the doctor s negligence. Remoteness of damage The law sets limits on the defendant s liability by holding liable for only those consequences which are not too remote in law. Consequences are too remote if the reasonable man would not have foreseen them. And the harm which is occurs must be the same kind, type and class as that which is foreseeable. For example, in Witter v Brinks (1992), a company s driver was on his way home and off duty when the company car stalled. When he got out to look at it, he was held up and injured by a gunman. The court held that this type of injury was not foreseeable on the part of the company. The defendant will be liable for the damage even if the harm suffered was greater than would have been expected of a normal person due to some special physical weakness or sensitivity on 7

8 the part of the plaintiff. For example, a person who carelessly inflicts a minor injury to a haemophiliac may be held liable for his death (Bidwell v Briant (1956)). This is known as the egg-shell principle. Novus actus interveniens The defendant may be relieved from liability if an independent event by a third party causes damage to the plaintiff. This may snap the chain of causation. The court s decision usually depends on the policy to be pursued in allocating responsibility for negligent conduct. One test is whether the intervening event was within the likely or foreseeable risk created by the defendant s negligence. For example, a decorator at work alone in a house carelessly went out for two hours and left the door unlocked. He was held liable for the loss when a thief stole goods as this act was within the foreseeable risk caused by his breach of duty. On the other hand, a plaintiff cannot recover damages for aggravation or prolongation of his injuries which was due to his own neglect or wilful default. Defences Contributory negligence is carelessness on the part of the plaintiff which combines with the defendant s negligence or breach of duty. The plaintiff s negligence may have been a contributing cause of the accident, such as where he steps into the road without keeping a proper lookout and struck by a car being negligently driven by the defendant. It is not necessary that the plaintiff s negligence be a cause of the accident, but that it contribute to the damage. For example, failure to wear a seatbelt or a helmet may not cause the accident, but might contribute to the damage. A person is thus contributorily negligent if he takes a ride with a person whom he knows to be under the influence of alcohol (Owens v Brimmell (1973)). The standard of care of the plaintiff for his own safety is that of a reasonable, prudent person. In Kunwarsingh v Ramkelawan (1972), a driver collided with a van which was parked in the road without lights. Both drivers were found to be negligent the van s driver for parking in the road without lights, and the car s driver for failing to keep a proper lookout and driving too fast in conditions where he could not see more than 8 feet. 8

9 Volenti non fit injuria means that no one can enforce a right which he has voluntarily waived. This is a voluntary assumption of risk. In the past, volenti was a complete defence. However, it has declined with the introduction of the contributory negligence doctrine. Instead of the plaintiff being completely unable to recover, damages are apportioned according to the plaintiff s carelessness. Where a passenger takes a lift from a driver he knows to be intoxicated, volenti may apply to absolve the driver of injury to the passenger from negligence. The doctrine of volens does not apply where the plaintiff incurs a risk to rescue a third party from a perilous situation in which he has been placed by the defendant s negligence, for a rescuer acts under the impulse of duty, whether legal, moral or social, and does not, therefore, exercise that freedom of choice which is essential to the success of the defence. The Present Situation 1. Can Mia sue Tito? (Tito is drunk.) (Mia is also drunk) 2. Can Mia sue Kashawn? (10 miles per hour above speed limit) (Mia is drunk, walks into street) 3. Can Mia sue hospital? (no thorough examination) (no contributory negligence) 4. Can Omar sue Tito? (Tito is drunk, runs red light) (Omar has dark clothing, no lights) 5. Can Omar sue hospital? (common allergen) (no contributory negligence). In the present case, Omar and Kashawn as drivers both had a duty of care to all road users. Tito, who has had too much to drink, runs a red light. There is prima facie evidence of a breach of duty. Kashawn is driving 10 miles per hour over the speed limit. This is also prima facie evidence of a breach of duty. The hospital doctors have a duty of care to Omar and Mia to treat them with all due care and attention. 9

10 Mia v Tito Mia might argue that she would not have suffered injury but for the fact that Tito got into an accident. Had he not run into Omar, Mia would not have gotten out of the car and would not have been in the street when Kashawn passed. She would not have become a paraplegic. Tito will argue strenuously that there were two actions that broke the chain of causation: 1) Mia s action in getting out of the car and going into the street and 2) Kashawn s action in hitting Mia. It does not seem foreseeable that causing one accident would cause your otherwise uninjured passenger to get hit by a car in the street. It is suggested that Tito s response is likely to find favour with the court, and he will not be held liable for Mia s injuries. In the event that some negligence is found, Tito may also raise the issue of contributory negligence that Mia contributed to her own damage by accepting the ride in the first place knowing that he had had too much to drink. In the past he might have attempted the defence of volenti which would have been a complete defence, but as mentioned, this has fallen out of favour. Mia v Kashawn Mia will argue that she would not have suffered injury but for Kashawn s action in hitting her. While we are not told what the speed limit is, we are told that Kashawn exceeded the speed limit by 10 miles per hour. If he was driving slowly, then one would certainly have expected he would have had time to see and avoid her. If he was driving quickly, then he had an increased duty to keep a good lookout for other road users (Kunwarsingh). Kashawn will try to argue that Mia contributed to her own damage by being in the street. We are not told whether she kept a proper look out, an especially relevant question given that she had had too much to drink. In response Mia might try to cast herself as a rescuer, which would be a defence to this type of claim. Kashawn will also argue that Mia would not have suffered so much damage but for the failure of the doctors at the hospital to properly treat her. He will attempt to distinguish Barnett on the basis that modern medicine has many ways to treat internal injuries. 10

11 Mia v Hospital Mia will also try to recover from the hospital for their failure to properly examine her. The hospital doctors have a duty of care to her to treat her with all due care and attention. In response to her claim and Kashawn s allegations, the hospital will raise Barnett. Although there would seem to be clear negligence on their part, we are not told whether Mia s injuries would have been cured if she had been properly examined. One important factor, however, is that the type of harm that Mia suffered is a foreseeable consequence of the accident. Omar v Tito Given the breaches of the Highway Code, driving under the influence and running a red light, there is prima facie evidence of negligence on Tito s part. However, he will raise the issue of contributory negligence as Omar had dark clothing and no lights. It is likely, however, that the court will find that the greater portion of negligence lies with Tito who should have been driving more cautiously in a situation where visibility was so low (Kunwarsingh). Tito will also raise the issue of novus actus interveniens in relation to the hospital s treatment of Omar. He will argue that an allergic reaction to penicillin is not a foreseeable type of the possible harm that would be caused by his actions. He will also argue that penicillin sensitivity is not the type of physical weakness captured by the eggshell-skull principle. Omar v Hospital The doctors at the hospital provided a penicillin injection to Omar. Given that penicillin is a common allergen, this would also seem to be prima facie evidence of negligence. 11

12 Conclusion It is unlikely that Tito will be held liable for Mia s injuries. Although he created the situation where she had to act as rescuer, it is likely that the court will find that the chain of causation was broken by Kashawn s actions. It is likely that Kashawn will be held fully liable for Mia s injuries, and that the hospital s failure to act, though negligent, will not be seen as breaking the chain of causation. It is likely that the hospital will be held liable for Omar s injuries arising from the allergic reaction, especially given that penicillin is a common allergen. Tito will be liable for those injuries which Omar suffered as a direct result of the accident, though it is likely that Omar will be found contributorily negligent in that regard. 12

13 [Students told me that nuisance had not been covered, so we did not go through this example in lecture.] 3. Qia decides to give up her job to go into business making wooden rocking horses. Each horse sells for $100. She installs an electric lathe in her garage. The noise from the lathe, which Qia uses for four hours every day of the week, annoys Ron, her neighbour s brother, who is staying with hi. Ron is retired with a heart condition and enjoys sitting quietly in the garden doing the daily newspaper puzzles. Ron suffers a heart attack that his doctor suggests is a consequence of the stress caused by the noise. Ron s daughter, Sonia, who is staying with him to assist in his recovery, decides to clean the living room rug by taking it outside and beating the dust off it. Some of the dust drifts over into Qia s garage and sticks to some newly painted rocking horses that will now have to be sanded and repainted. During the time spent doing this, Qia could have made two or three more horses for sale. Advise Qia. Issues: Can Ron sue Qia in private nuisance? Can Ron sue Qia in public nuisance? Can Qia sue Sonia in public or private nuisance? Can Ron sue Qia in private nuisance? Law The tort of nuisance has been described as a Catch-all for a multitude of ill-assorted sins, including emission of noxious fumes, loud noises and destructive vibrations. A private nuisance is one in which the actions of the defendant cause substantial and unreasonable interference with the plaintiff s enjoyment of her land. This can be physical damage (which is usually easiest to measure), interference with enjoyment, and interference with easements and access. The courts must strike a balance between the neighbours the right of the defendant to use his land as he wishes, and the right of the plaintiff to enjoy her land. The injury will therefore not be actionable unless a) the damage physical or substantial (if non-physical) and b) the defendant s conduct was unreasonable in the circumstances. In considering whether the interference is substantial, the usual standard is whether the inconvenience materially interferes with the ordinary physical comfort of human existence: Vanderpant v Mayfair Hotel (1929). 13

14 In considering the reasonableness of the defendant s conduct, the court will consider the locality, the utility of the conduct, the plaintiff s abnormal sensitivity, the duration of the harm, and any malice. In Sheppard v Griffith (1973), the High Court of Guyana examined a case where the plaintiff lived next to a hotel in which the juke box was played at all hours. The court considered the nearness of the buildings, the time when the noise was made, the frequency of the noise, the nature and degree of the noise, and the effects of the noise. In that case, an injunction was granted restraining the hotel from using the juke box after midnight. Only a person with an interest in land (as owner or tenant) can sue in private nuisance. A guest, lodger or even member of the owner s family cannot sue: Malone v Laskey (1907) reaffirmed by the HL in Hunter v Canary Wharf (1997). Application Since Ron does not have an interest in the land, he will not be able to sue Qia in private nuisance. [Although private nuisance does not apply, several of the elements are repeated in public nuisance, so we did not waste the time we spent explaining it.] Can Ron sue Qia in public nuisance? Law A public nuisance is committed where a person carries on some harmful activity which affects the general public or section of the public or where an obstruction is caused on the public highway. It is a crime actionable by the Attorney General, and also a tort actionable if a plaintiff can show that the defendant s conduct has caused him particular damage over and above that suffered by the general public. One view of particular damage is that it must be different in kind and not merely in degree from that suffered by the general public: Stein v Gonzales (1985); Ricket v Metropolitan Rly (1867). Another view is that it is sufficient to show damage which is appreciably greater in degree: Southport Corp v Esso Petroleum (1954), Metropolitan Board of Works v McCarthy (1874). For example, in the case of Halsey v Esso Petroleum (1961), the plaintiff s sleep was disturbed by the noise of D s vehicles, and his car, which was parked in the street, was damaged by acid smuts from D s factory. 14

15 The range of persons who can sue is larger in public nuisance than in private since the plaintiff need not have an interest in the land, and can recover for personal injuries. The proper defendant is the creator of the nuisance. The occupier of the land from which the nuisance emanates may also be liable, but not always. If the nuisance is created by the occupier s employee during the course of employment then vicarious liability will apply. If created by a licensee of the occupier (e.g. Guest, lodger, visiting relatives), the occupier will only be liable if he knew or ought to have known about the nuisance and failed to take steps to control the licensee. If nuisance is caused by natural forces, the occupier will be liable if he fails to take reasonable steps to abate. Some general defences apply, but not many. Application Ron v Qia The court will consider firstly whether Qia s conduct was reasonable. In considering the reasonableness of the defendant s conduct, the court will consider the locality, the utility of the conduct. As per Shepperd v Griffith, the court will also consider the time and frequency of the noise. We are not told anything about the locality. However, given that there does not seem to be any other noise in the area, it may be assumed that it is a quiet area. In contrast to the hotel cases, the noise is only made 4 hours per day every day of the week. Ron can argue that this is excessive. However, Qia can argue that this is far less than a usual working day, and falls during the day when noise levels are generally higher. Ron also seems to be unusually sensitive. Conclusion: it is unlikely that Ron would succeed. Qia vs Sonia The dust is a one-off occurrence and arises in the course of ordinary daily activities. It does not materially interfere with the ordinary physical comfort of human existence. It is unlikely that Qia will be able to claim in either public or private nuisance. Indeed, the court is more likely to find that she should have safeguarded her work against such hazards. 15