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Tort Law Problem Question - opinions wanted

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    Brenda is employed by Leonard, to drive Leonard’s car, as his chauffeur. Brenda suffers from a heart condition about which she has been to see Dr. John on a number of occasions. Dr. John tells Brenda that she is fit to drive and that she does not need to take any pills. Later, whilst driving Leonard, who is hoping to conclude a valuable business contract in Hong Kong, to the airport, Brenda suffers a heart attack, loses control of the car and crashes into Alan. The front bumper of the car is destroyed. Leonard misses his flight to Hong Kong and the business deal falls through. Brenda is traumatised by the accident and suffers post traumatic stress disorder.

    Alan’s leg is severely injured in the accident and he is forced to walk with a stick at all times. Whilst out walking at night in his local public park, which is open, but unlit, he slips on a loose paving stone and falls on his bad leg. Dimlittle Borough Council had considered installing lampposts, and had money put aside for this purpose, but in the wake of the depressing recession, decided that this money would be better spent on a piece of inspiring art work in the town centre. His leg is now so badly injured that it has to be amputated. Dr. Dan, who has had little sleep due to long working hours, is so tired that he amputates Alan’s healthy leg. Dr. Dan feels awful about this but feels it is simply more evidence of the problems inevitably caused by staff cutbacks at the hospital. He cannot understand how the local NHS trust could retrench clinical staff when it is under a statutory duty pursuant to the NHS Standards Act 2011* to “promote the physical and mental health of the people of England”.



    Claimants-

    Leonard –

    Pure economic loss, consequential economic loss

    Due to Brenda’s accident, and Dr John’s negligence

    Brenda –

    Psychiatric injury (PTSD), primary victim,

    as a result of Dr John’s negligence

    Alan –

    Leg injury

    Due to Brenda’s accident , and Dr John’s negligence

    Contributory negligence – shouldn’t have been walking under severe injury

    Amputation
    Due to breach of occupiers’ duty by Council


    What do you reckon people?
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    You missed out Alan's potential claim against Dr Dan (he amputated a healthy leg!) and the Hospital (vicariously liable, potential breach of statutory duty).
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    What's the best way to structure such a question?

    Currently in negligence problems I deal with each claimant separately in different paragraphs... then I address whether the damage suffered by these claimants is sufficient in law to form the basis of a claim in negligence.

    Then duty of care, breach of duty, causation. This is the first negligence question i've done so any criticism of this (rough) approach would be much appreciated.
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    Guys, can someone help out here? Please

    Is Leonard's loss of a 'business meeting' actual economic loss, or merely the loss of a chance?

    As Brenda crashed his car, and the 'front bumper was damaged' - does this mean that Leonard's economic loss/ loss of a chance is CONSEQUENTIAL upon physical damage, and thus can claim? I was thinking, the front bumper has been damaged, but surely this does not preclude the car from still working - i.e. the economic loss/loss of chance is not DIRECTLY consequential upon the damage to the car?

    Alternatively, is the damage (heart attack) to Brenda herself classed as 'physical damage', as she is presumably under a contractual relationship with Leonard? Could it be argued that this Leonard's loss is consequential upon the damage to Brenda in this way?

    Finally, do you think that Dr John's statement not to take any pills and that Brenda was 'fine' could be relied upon by Leonard as a negligent mistatement, causing his economic loss/loss of a chance?

    HELP PLEASEEEEEE
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    BUMP
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    I think your approach is fine. I tend to look for the type of damage first; physical, personal, consq. economic loss, pure economic loss, psychiatric harm. That allows you to establish duty. Then, as you say, go through each claimant in terms of duty, breach, causation, etc.. Focus shifts obviously from C to D. Have you considered that Dr. John may be not liable? Bolitho? Who then is the D? Brenda? Possible defences or maybe no point in sueing an employee when you can get to the employer. Is Leonard vicariously liable for Alan's injury? In relation to Leonard's losses - I'd consider mentioning policy arguements. Think about old man Denning in Spartan Steel and re-word it - people miss flights everyday for numerous reasons. Sometimes they just have to get on with it and make different arrangements or maybe they should have insured against it. Why couldn't he arrange to hold the meeting by video conference? The law cannot be expected to compensate for the intervention of fate. If everyone who missed a flight was to be compensated ......... etc, etc.. The amputation of an already damaged leg rings of Baker v Willoughby. It's a good question - virtually every aspect of negligence is in there - and all arguable. Good luck with it.
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    Sorry, it was along day - he cut off the good leg - nothing to do with Baker v Willoughby. Talking nonsense again!
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    Thanks a lot - I agree, it's a good question, brings a lot of areas into play - one last question, if you don't mind.

    Like you said above, yes, I pretty much concluded Dr John wasn't negligent (in regard to Brenda) on the basis of Bolam/Bolitho... i.e. he wasn't in breach.

    The thing is, that sort of messes up my bit for Leonard, which comes after my paragraph on Dr John/Brenda - as his claim is based on that very negligence. The only other conceivable person to sue would be Brenda - but I can't see how, in any case, she could have been negligent.

    Thus I want to progress and discuss the stuff that you raised above, but as I have pretty much eliminated all possible defendants it precludes any discussion. I haven't written a problem question in yonks, and my structure/technique is poor - how can I get around this?
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    (Original post by firesale1)
    Thanks a lot - I agree, it's a good question, brings a lot of areas into play - one last question, if you don't mind.

    Like you said above, yes, I pretty much concluded Dr John wasn't negligent (in regard to Brenda) on the basis of Bolam/Bolitho... i.e. he wasn't in breach.

    The thing is, that sort of messes up my bit for Leonard, which comes after my paragraph on Dr John/Brenda - as his claim is based on that very negligence. The only other conceivable person to sue would be Brenda - but I can't see how, in any case, she could have been negligent.

    Thus I want to progress and discuss the stuff that you raised above, but as I have pretty much eliminated all possible defendants it precludes any discussion. I haven't written a problem question in yonks, and my structure/technique is poor - how can I get around this?
    In any question DO NOT immediately close off an option. You've concluded he PROBABLY wasn't negligent. Consider, briefly, the alternative that you are wrong. This will allow you to consider the extended negligence claim.

    (Also, check out the negligence from medical issues driving cases - I can't quite recall them but I believe they have almost (but not quite) conflicting results which you could use for Brenda)

    (Disclaimer: if none of this makes sense, apologies, I had a bit of a nasty accident yesterday from which I'm recovering and may be incoherent)
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    (Original post by firesale1)
    The thing is, that sort of messes up my bit for Leonard, which comes after my paragraph on Dr John/Brenda - as his claim is based on that very negligence. The only other conceivable person to sue would be Brenda - but I can't see how, in any case, she could have been negligent.

    Thus I want to progress and discuss the stuff that you raised above, but as I have pretty much eliminated all possible defendants it precludes any discussion. I haven't written a problem question in yonks, and my structure/technique is poor - how can I get around this?
    This may not be much help and might only re-state what you already know. In answering a tort question I'd never be afraid to conclude that there are no amenable defendants. If your argument is well made, supported by authority and put forward with confidence, you'll most likely score well. Don't feel you always have to find a defendant. Remember that problem questions are designed to be full of ifs, buts and maybes so put them all in. Candidates who, as Gethsemane says, close off options and don't discuss all of the possiblities score less well.

    The classic structure is ILAC - Indentify the issues, identify or state the Law, Apply the law to the facts and Conclude. Generally I'd try to identify the issues in an intro and go on to state and apply the law in seperate paras relating to each claimant or incident in turn, pulling it all together in a conclusion. In concluding I'm rarely stating a right or wrong answer but very often simply saying what the strongest argument appears to be.

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Updated: January 6, 2012
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