2018 ZB Question 3 - MIX
Jafari was driving along the High Street in his newly purchased ‘Enigma’ car. He was approaching a red traffic
light when the brakes on the car failed and he crashed into a minibus. The manufacturer had sent out an urgent
recall of the ‘Enigma’ car because a fault was discovered in the braking system. The recall letter to Jafari was
posted to an incorrect address. Consider the principal issues of law which will arise if the parties below attempt
to recover the losses they suffered arising from the following:
(a) Jafari was injured in the crash.
(b) Before the minibus set off the passengers were reminded to ensure their seat belts were securely fastened.
Harry, a twelve-year-old boy who had not followed the instruction to fasten his seat belt, was thrown from
his seat and suffered a head injury.
(c) Malcolm, the driver of an oncoming car, swerved to avoid the accident and crashed into the garden wall of a
nearby house. Jack, the passenger in Malcolm’s car, was seriously injured. At the time of the accident
Malcolm and Jack were fleeing the scene of a crime where they had snatched two laptop computers from a
shop. Jack is taking an action in negligence against Malcolm (and also against Malcolm’s insurers).
(d) Estelle, the owner of the garden wall, was not at home at the time of the accident but her Fido, Fido, who
was in the garden, became very distressed with the noise from the crash. Laura, Estelle’s neighbour, went
into the garden to try and calm Fido. As soon as Laura entered the garden Fido bit her leg. Laura’s injury was
severe and required hospital treatment.
In advising, Jafari, Harry, Jack would bring action against Enigma for physical injury suffered by them due
Enigma’s negligent manufacturing the car which cause the accident. Jack may also bring action against Malcolm
and Malcom’s insurers for his reckless driving which cause J’s injury. Laura would bring action against Estelle to
claim compensation for the injury and hospital treatment which caused by E’s Fido. In order for action to be
successful. All parties will first need to establish the tort of negligence against potential defendants. According
to Lochgelly Iron v Mc Mullan, both parties will need to prove on a balance of probabilities that there is an
existing duty of care and the defendant breached it, causing some damage to them and the damage is not to
remote.
Frist issue whether the defendant owes a duty of care to claimants?
Jafari, Harry and Jack v Enigma
According to Robinson v Chief Constable of West Yorkshire Police, court will consider what has been decided
previously and follow the precedents. Is no decided precedent, court will consider the closest analogies in the
existing law and weight up the reasons for and against imposing liability (incremental approach). However, court
will resort to Caparo test (ie. foreseeability, proximity, just, fair and reasonable) only where it is invited to depart
from precious authority (novel situation).
As a manufacturer, who do you owe a duty of care to? Well in the case of Donoghue v Stevenson, court held
although manufacture and consumer may be in different part of world and never meet before, the duty is owed
as manufacture able to foresee that any negligence on his part with regarding to the manufacturing of product
would ultimately affect his consumer.
Applying to the fact, Enigma as manufacturer of car thus owes duty of care to anyone have sufficient proximity.
Proximity means closeness in relationship between the defendant and the claimant. Closeness in relationship
does not however mean that the parties must know each other or be related to one another but rather they
must share a relationship in which one is able to foresee harm to another by his actions or inactions. Therefore,
for the defective brake system, it is foreseeable that not only the driver of the car would suffer injury but also
to any other person involved in the accidents. Thus, following precedent duty of care is established for the
physical injured suffer by Jafari, Harry and Jack.
Jack v Malcolm
In applying Donoghue neighbour principle, it would appear that in the case of a driver, a duty is owed to all other
road users. The standard of care owed to other road users is that of a reasonable driver. This was described
in Nettleship v Weston as the standard to be expected of a competent and experienced driver. In the case, the
, claimant was a friend of the defendant and was teaching her to drive. Prior to such an arrangement the claimant
had sought assurances from the defendant that appropriate insurance had been purchased in the event of
accident. On the third lesson the defendant was executing a simple manoeuvre at slow speed when she panicked
which resulted in the car crashing into a lamppost injuring the claimant. The defendant was subsequently
convicted of driving without due care and attention. Court held that the duty of care owed by a learner driver
to the public (including passengers) was to be measured against the same standard that would be applied to any
other driver.
Applying to the fact, Malcolm as driver owes duty of care to his passenger Jack following reasonable driver
standard. Thus, duty of care is established.
Laura v Estelle
It has been established at common law that those who attempt rescue are owed a duty of care by those who
create dangerous situations, in which it is foreseeable rescuers may intervene. This duty can apply to
professional rescuers such as doctors or lifeguards as much as ordinary individuals, and may even apply where
the rescuer engages in a careless or reckless rescue attempt. The basis for this liability was first recognised in
Haynes v Harwood, here, a child who threw a stone at a horse, causing it to bolt, was liable to a policeman who
attempted to stop it subsequently, and was injured. The duty was confirmed in the later case of Baker v T E
Hopkins, Ld. Wilmer states assuming the rescuer not to have acted unreasonably, therefore, it seems to me that
he must normally belong to the class of persons who ought to be within the contemplation of the wrongdoer as
being closely and directly affected by the latter’s act.
The duty of care owed to a rescuer is separate from that owed to those he is rescuing. Where individuals
trespassed onto a railway line, putting themselves in danger, they were not owed a duty of care; however, the
stationmaster who attempted rescue and was fatally injured was owed a duty of care, as it was foreseeable, he
would attempt a rescue. Equally, a duty of care may arise where an individual imperils himself, and a rescuer is
injured, despite the individual clearly owing himself no duty of care.
Applying to the fact, although prima facie Laura as rescuer is owed duty of care by Estelle, it may argue that
Estelle did not create any danger situation and it is not foreseeable that Laura will enter into garden to calm the
dog Fido. The fact there is no actual danger to Fido, Laura act suggest to be unreasonable, thus no duty is owed
by Estelle.
Second issue whether the defendant breach the duty of care to claimant?
This will be based on whether they will be judged based on the reasonable man standard or professional body
standard (Blyth v Birmingham Waterworks). This is an objection test which does not take into account
defendant’s characteristics (Glassgrow Corp v Muir).
Jafari, Harry and Jack v Enigma
According to the fact, since Enigma is manufacturer of car and has skill and knowledge of the product,
professional body standard shall apply. A manufacture is not guilty of negligence if he has acted in accordance
with acceptable practice endorsed by a reasonable, respectable and responsible school of thought within his
profession (Bolam v Friern Hospital Management Committee). Defective in the brake system of car is definitely
not with the practice of any other car manufacturer, thus Enigma fall below the standard of care expected of
him. Further, Enigma is foreseeable any defective in the main components of car (ie. the brake system) is likely
to cause injury and can went on to cause serious harm (The Wagon Mound No.2). Although Enigma would to
argue that they have taken step of precaution by sending letter to the owner of the car Jafari, it may dismiss as
the letter was also send negligently to incorrect address (Latimer v AEC). If Enigma would to argue it is a common
mistake, it may also dismiss by court as court have not accepted common practice as a conclusive defence and
neglect of duty does not cease by repetition to be neglect of duty (Bank Montreal v Dominion Guarantee). Thus
breach is establish.
Jack v Malcolm
Jafari was driving along the High Street in his newly purchased ‘Enigma’ car. He was approaching a red traffic
light when the brakes on the car failed and he crashed into a minibus. The manufacturer had sent out an urgent
recall of the ‘Enigma’ car because a fault was discovered in the braking system. The recall letter to Jafari was
posted to an incorrect address. Consider the principal issues of law which will arise if the parties below attempt
to recover the losses they suffered arising from the following:
(a) Jafari was injured in the crash.
(b) Before the minibus set off the passengers were reminded to ensure their seat belts were securely fastened.
Harry, a twelve-year-old boy who had not followed the instruction to fasten his seat belt, was thrown from
his seat and suffered a head injury.
(c) Malcolm, the driver of an oncoming car, swerved to avoid the accident and crashed into the garden wall of a
nearby house. Jack, the passenger in Malcolm’s car, was seriously injured. At the time of the accident
Malcolm and Jack were fleeing the scene of a crime where they had snatched two laptop computers from a
shop. Jack is taking an action in negligence against Malcolm (and also against Malcolm’s insurers).
(d) Estelle, the owner of the garden wall, was not at home at the time of the accident but her Fido, Fido, who
was in the garden, became very distressed with the noise from the crash. Laura, Estelle’s neighbour, went
into the garden to try and calm Fido. As soon as Laura entered the garden Fido bit her leg. Laura’s injury was
severe and required hospital treatment.
In advising, Jafari, Harry, Jack would bring action against Enigma for physical injury suffered by them due
Enigma’s negligent manufacturing the car which cause the accident. Jack may also bring action against Malcolm
and Malcom’s insurers for his reckless driving which cause J’s injury. Laura would bring action against Estelle to
claim compensation for the injury and hospital treatment which caused by E’s Fido. In order for action to be
successful. All parties will first need to establish the tort of negligence against potential defendants. According
to Lochgelly Iron v Mc Mullan, both parties will need to prove on a balance of probabilities that there is an
existing duty of care and the defendant breached it, causing some damage to them and the damage is not to
remote.
Frist issue whether the defendant owes a duty of care to claimants?
Jafari, Harry and Jack v Enigma
According to Robinson v Chief Constable of West Yorkshire Police, court will consider what has been decided
previously and follow the precedents. Is no decided precedent, court will consider the closest analogies in the
existing law and weight up the reasons for and against imposing liability (incremental approach). However, court
will resort to Caparo test (ie. foreseeability, proximity, just, fair and reasonable) only where it is invited to depart
from precious authority (novel situation).
As a manufacturer, who do you owe a duty of care to? Well in the case of Donoghue v Stevenson, court held
although manufacture and consumer may be in different part of world and never meet before, the duty is owed
as manufacture able to foresee that any negligence on his part with regarding to the manufacturing of product
would ultimately affect his consumer.
Applying to the fact, Enigma as manufacturer of car thus owes duty of care to anyone have sufficient proximity.
Proximity means closeness in relationship between the defendant and the claimant. Closeness in relationship
does not however mean that the parties must know each other or be related to one another but rather they
must share a relationship in which one is able to foresee harm to another by his actions or inactions. Therefore,
for the defective brake system, it is foreseeable that not only the driver of the car would suffer injury but also
to any other person involved in the accidents. Thus, following precedent duty of care is established for the
physical injured suffer by Jafari, Harry and Jack.
Jack v Malcolm
In applying Donoghue neighbour principle, it would appear that in the case of a driver, a duty is owed to all other
road users. The standard of care owed to other road users is that of a reasonable driver. This was described
in Nettleship v Weston as the standard to be expected of a competent and experienced driver. In the case, the
, claimant was a friend of the defendant and was teaching her to drive. Prior to such an arrangement the claimant
had sought assurances from the defendant that appropriate insurance had been purchased in the event of
accident. On the third lesson the defendant was executing a simple manoeuvre at slow speed when she panicked
which resulted in the car crashing into a lamppost injuring the claimant. The defendant was subsequently
convicted of driving without due care and attention. Court held that the duty of care owed by a learner driver
to the public (including passengers) was to be measured against the same standard that would be applied to any
other driver.
Applying to the fact, Malcolm as driver owes duty of care to his passenger Jack following reasonable driver
standard. Thus, duty of care is established.
Laura v Estelle
It has been established at common law that those who attempt rescue are owed a duty of care by those who
create dangerous situations, in which it is foreseeable rescuers may intervene. This duty can apply to
professional rescuers such as doctors or lifeguards as much as ordinary individuals, and may even apply where
the rescuer engages in a careless or reckless rescue attempt. The basis for this liability was first recognised in
Haynes v Harwood, here, a child who threw a stone at a horse, causing it to bolt, was liable to a policeman who
attempted to stop it subsequently, and was injured. The duty was confirmed in the later case of Baker v T E
Hopkins, Ld. Wilmer states assuming the rescuer not to have acted unreasonably, therefore, it seems to me that
he must normally belong to the class of persons who ought to be within the contemplation of the wrongdoer as
being closely and directly affected by the latter’s act.
The duty of care owed to a rescuer is separate from that owed to those he is rescuing. Where individuals
trespassed onto a railway line, putting themselves in danger, they were not owed a duty of care; however, the
stationmaster who attempted rescue and was fatally injured was owed a duty of care, as it was foreseeable, he
would attempt a rescue. Equally, a duty of care may arise where an individual imperils himself, and a rescuer is
injured, despite the individual clearly owing himself no duty of care.
Applying to the fact, although prima facie Laura as rescuer is owed duty of care by Estelle, it may argue that
Estelle did not create any danger situation and it is not foreseeable that Laura will enter into garden to calm the
dog Fido. The fact there is no actual danger to Fido, Laura act suggest to be unreasonable, thus no duty is owed
by Estelle.
Second issue whether the defendant breach the duty of care to claimant?
This will be based on whether they will be judged based on the reasonable man standard or professional body
standard (Blyth v Birmingham Waterworks). This is an objection test which does not take into account
defendant’s characteristics (Glassgrow Corp v Muir).
Jafari, Harry and Jack v Enigma
According to the fact, since Enigma is manufacturer of car and has skill and knowledge of the product,
professional body standard shall apply. A manufacture is not guilty of negligence if he has acted in accordance
with acceptable practice endorsed by a reasonable, respectable and responsible school of thought within his
profession (Bolam v Friern Hospital Management Committee). Defective in the brake system of car is definitely
not with the practice of any other car manufacturer, thus Enigma fall below the standard of care expected of
him. Further, Enigma is foreseeable any defective in the main components of car (ie. the brake system) is likely
to cause injury and can went on to cause serious harm (The Wagon Mound No.2). Although Enigma would to
argue that they have taken step of precaution by sending letter to the owner of the car Jafari, it may dismiss as
the letter was also send negligently to incorrect address (Latimer v AEC). If Enigma would to argue it is a common
mistake, it may also dismiss by court as court have not accepted common practice as a conclusive defence and
neglect of duty does not cease by repetition to be neglect of duty (Bank Montreal v Dominion Guarantee). Thus
breach is establish.
Jack v Malcolm
