Consider whether grant Hayden and Ilsa have any rights and remedies against Callum, in connectionwith the injuries that each suffered, arising out of the collision between Callum’s car and thescaffolding. (25 marks)Grant has suffered personal injury and may bring a claim against callum in negligence. In order tosucceed in his claim he must prove that a duty of care was owed, that the duty was breached andthat damage was caused as a result.Duty of care was defined in Donoghue v Stevenson where a snail was found on some ginger beer.This case resulted in the neighbour principle, defined by lord Atkin, a neighbour in law is any personswhom it is reasonable to foresee may be harmed by your acts or omissions. This duty was furtherdeveloped in Caparo v Dickman where the 3 part test was implemented, this was foreseeability,proximity and fair, just and reasonable. In this scenario it was reasonably foreseeable that someinjury may be caused to grant on the scaffolding when it was hit, there was definitely proximity asthe grant fell as a result of the impact. It can be seen as fair just and reasonable to impose a duty ofcare as callum was in control of the car at the time of the incident.Breach of duty was defined in Blyth v Birmingham waterworks in which negligence was defined as“the omission to do something which the reasonable man …would do, or do something which aprudent and reasonable man would not do.” This is known as the reasonable person test and isobjective for example in Nettleship v Weston (1971) a learner driver was liable when she caused anaccident, the individual cannot claim they were doing their best if this is below the standard of thereasonable man. The reasonable man can change dependant on the defendant’s age andcapabilities. In Paris v Stepney Borough Council (1951) the reasonable person can be seen to takeextra care of the resulting damage from their actions are likely to be particularly serious. This can beapplied in this case as driving in a n absent minded way in a car is highly likely to cause serious injuryin some way.Damage must be caused by Callum’s act. This can be established through investigation causationboth in fact and in law. Causation in fact is found using the ‘but for’ test. Grant’s injury would nothave occurred but for callums actions therefore this satisfies the test. Causation in law is found ifthe act was the substantial and operating cause of the result. Cullum’s actions were the operatingand substantial cause of the injury. Once this has been established the remoteness of damage maybe considered, this was defined in the wagon mound where the claimants wharf set alight after oildrifted on the tide. Here the kind of damage, the sequence of events and the extent of the damagewill be considered.If this claim was successful grant may claim for damages in which he may receive compensation forloss of earnings, cost of medical treatment and for the injury itself. However his damages may bereduced due to contributory negligence, this is where the claimant has contributed to the damagecaused. In this case grant hung off the side of the scaffolding putting him in danger and failed towear a safety harness which would potentially have prevented his injuries. In this scenario theclaimant is not to blame for the incident but his actions made his injuries worse than they shouldhave been. An example of this is in Froom v Butcher (1975) where the claimant was not wearing aseatbelt and in O’Connel v Jackson (1971) where the claimant was not wearing a helmet while on amotorbike.
Hayden has not suffered any physical injury. However, he may be able to claim for psychologicalharm if he is suffering from an independently verified recognised psychiatric illness based on medicalevidence and falls into one of the categories accepted by the courts as a claim. The injury must bemore than mere emotion. In this scenario Hayden is suffering prolonged psychological problems. Inorder to succeed in a claim Hayden must prove he is either a primary of secondary victim in order fora duty to be owed. A primary victim is someone who is directly involved in an n incident and is eitherinjured or feared injury or a rescuer. In this scenario Hayden is a primary victim as he was narrowlymissed when grant fell from the scaffolding and could potentially have been injured. This can beseen in page v smith (1996) the claimant was involved in a road traffic accident and sufferedpsychiatric damage as a result even though they were unharmed physically.Ilsa may be classified as a secondary victim as she suffered psychiatric injury as a result of seeing theincident from across the road. The injury must be caused by a sudden shock as shown in Sion vHampstead Health Authority (1994) where there was a slow realisation which was not sufficient toclaim. The psychiatric damage must also be reasonably foreseeable and a person or reasonablefortitude may be affected in the same way, the individual cannot claim they are more susceptible topsychiatric injury. A secondary victim must be in close proximity the incident which Ilsa was and theincident must be perceived with the individuals own senses, which it was. The area where this claimwill most likely fail is upon investigation of a relationship as the claimant must have a close tie oflove and affection with the individual injured which as far as is known did not exist. Therefore thisclaim would fail.