On point one, it is submitted that there is indeed a duty of care owed to the injured parties by Lord Fotheringay and his illegitimate son, Chinless. The damages to be claimed by the claimants here would be based on damages for psychiatric injuries. In succeeding in an action against negligence, there are three things (tests) that need to be fulfilled[1];
• That the defendant owes a duty of care
• That the defendant was in breach of that duty
• That the claimant suffered damage caused by the breach of duty by the defendant.
Lord Fotheringay is to be held liable in conjunction with Chinless through the term vicarious liability. Vicarious Liability is known as the situation whereby one person is held liable for the torts of another person. The test used in establishing this is the ‘control test’. This test shows that the master/employer can, ‘not only order or require what is to be done, but how itself shall be done’- per Hilbury J in Collins v Hertfordshire County Council[2]. In establishing that there is a duty of care owed to the claimants, the activities relating to each person’s personal injury has to be critically analyzed.
Tara Shamelessly- Brazen, Lord Fotheringay and Chinless
After carefully going through the stated facts of the accident, it can be submitted that Tara is owed a duty of care as a primary victim. In further explaining this, one can take into consideration the case of Alcock v Chief Constable of South Yorkshire. Through this case, it was established that to claim psychiatric damages, there are certain test to be fulfilled. Those tests include;
• Being in direct risk of the incident. For Tara, it is established that she was indeed in direct risk by plainly being a passenger in the car with Chinless. Due to his negligence, it is reasonable to state that Chinless was in breach of his duty as in the case of Haley v London Electricity Board[3]. In the above stated case, it was held that there were a sufficiently large proportion of blind people in the community; hence, adequate precautions should have been taken to protect them. Chinless, therefore owed Tara a duty of care as his passenger to not drive negligently.
• Reasonably Foreseeable. The reasonable man test can be seen in the Hughes v Lord Advocate[4] case. This case held that the action succeeded as the lamp was a foreseeable source of danger and the injury flowed from it, although in an unpredictable way. This goes to show that Chinless had the idea that driving too fast may have resulted in an accident, but he still went ahead in endangering lives by driving too fast through a course where various activities were holding.
• Causation. The accident caused by Chinless resulted in Tara being deeply traumatized by the thought that she had just survived an accident that had the possibility of hurting her really badly, or ending her life.
Charlotte, Lord Fotheringay and Chinless.
Charlotte can be classified here to be a secondary victim and so, it is submitted Lord Fotheringay owes a duty of care as well. In the case of McLoughlin v O'Brian[5], it was established by the court that the test of liability for nervous shock is the ordinary test of reasonable foreseeability. If it was reasonably foreseeable that the claimant would suffer some form of psychiatric damage as a result of the accident, the claimant would be entitled to damages. It is further stated, in considering the question of reasonable foreseeability there are no legal limitations of time, space, distance, nature of injuries, or the relationship of victim to plaintiff. Although these are all factors to be considered, they should not be solely relied on as requirements to claim damages. Also relevant here is the Alcock v Chief Constable of The South Yorkshire Police[6], where relations and close friends were able to prove their relations and proximity to the victims in order to claim damages for psychiatric injury. This therefore
