BUSINESS LAW
ATTY. CHRISTIAN GEORGE LLANES MELITANTE, BSBA, LLB, MBA,
REALTOR
• Molly is a single mother. She takes her daughter Rhonda (a two year old infant) to a local
playground. While lighting a cigarette, Molly starts talking with another young parent, Dilbert. Molly
is distracted by Dilbert’s good looks and gritty charm. Meanwhile, Rhonda starts to wander over to
the road.
• Dilbert notices a possible catastrophe and rushes out after Rhonda. Dilbert just manages to save
Rhonda from being run over by Bob, who is driving a van within the speed limit and quite safely.
However, Dilbert has too much forward momentum and collides with Bob’s van. Dilbert is seriously
injured. Bob skids off the road and crashes into some playground equipment. Luckily, no children are
using the equipment. Laura, driving at speed behind Bob, sees the above-related events and puts her
foot down hard on the brakes. Laura’s car skids on an oil slick and crashes into a tree. Some distance
behind the tree was Leonard. Leonard thought that Laura’s car might hit him and he started running
away screaming ‘Oh Lord, don’t take me now!’ Leonard has an underlying personality disorder and
develops a paranoid fear of going out into the street. As a result, he loses his job and his livelihood.
• The accident involving Leonard is witnessed by Sherry, Rhonda’s grandmother, who is also at the
park. Sherry suffers from a brief fright, but believes that she will be alright. However, she later
develops post-traumatic stress disorder as a result of this event, combined with the news that Rhonda
barely escaped a serious injury. She had not seen the incident involving Rhonda herself, because she
had been busy setting out the picnic lunch.
Suggested Answer
In the case presented, there are potential actions arising out of
two motor-vehicle accidents involving two drivers: Bob and Laura.
In consequence of the accidents: Dilbert was “seriously injured” by
Bob’s van; Leonard has developed a paranoid fear of going out on
the street as a result of Laura’s crash; and Sherry has developed a
post-traumatic stress disorder on account of Laura’s accident. As a
result thereof, Dilbert, Leonard and Sherry have potential actions
in negligence.
For Dilbert, the landmark case of Donoghue vs Stevenson laid down the essential elements for
a negligence claim, such as: Duty of Care, Breach of Duty, Causation and Remoteness of Damage.
It is well-established that control of a motor-vehicle creates a duty of care owed to those who
might, reasonably foreseeably, be harmed by negligent exercise of that control. Accordingly, it is
clear that Bob, as a motorist, owed Dilbert, as a pedestrian, a duty of care. Such Duty of Care
owed to Dilbert shall be assessed, if breached, from the standard of care that a reasonable man
would do, in essence the standard of a competent and experienced driver. On probabilities, the
facts stated that Bob was driving “within the speed limit” and “quite safely”, which is consistent
with a competent and experienced driver’s actions. Moreover, the facts stated further that Dilbert
had too much forward momentum which, impliedly, contributed (if not caused) his collision with
Bob’s van. In view of this, it appeared that Bob met the standard of a competent and experienced
driver and, by extension, was exercising reasonable care for the purposes of the law. Accordingly,
Bob has not breached his duty of care to Dilbert.
For Leonard, Laura, on the other hand, clearly owes Leonard a common-law duty of
care on the same basis upon which Bob owed Dilbert a duty of care, as a pedestrian. But,
it should be based on probabilities as well if Laura exercised reasonable care by driving to
the standard of a competent and experienced driver.
It is clear from the factual nexus that Laura was “driving at speed behind Bob” and
crashed into a tree despite having put “her foot down hard on the brakes”. Equally, it is
plain that a competent and experienced driver would not be driving “at speed” behind a
van. However, although the facts stated that Laura was driving at speed it does not
necessarily follow that she was driving in excess of the speed limit. Nonetheless, driving
at speed seems to suggest a standard of driving which is within the threshold of a
competent and experienced driver.
In relation to Loss and Causation, the facts stated that Laura crashed into a tree which
Leonard was “some distance behind”; that Leonard thought Laura’s car “might” hit him and
therefore ran away screaming and that Leonard has an “underlying personality disorder”. At the
onset, the fact that Leonard has an underlying personality disorder does not alter Laura’s liability
for Leonard’s loss. However, it is plain from the facts that Leonard was not physically injured;
rather, his injury is “psychiatric” and therefore ‘nervous shock’.
Applying the Caparo Test, in establishing a negligence claim, there must be the presence of
reasonable foresight of harm; relationship of proximity; and it is just, fair and equitable to impose
such duty. It is clearly mentioned that the loss must be of a “kind” which is “reasonably
foreseeable”. It can be deduced that paranoia and loss of job and livelihood should be taken
differently as regards reasonably foreseeable. Loss merely need be of a “kind” which is
reasonably foreseeable, it follows that paranoia of going outside would naturally follow a car
accident, particularly when coupled with the application of the thin-skull rule; on the other hand,
financial loss is of a kind which is too remote. Nevertheless, despite the paranoia suffered by
Leonard, in relation to the “but for” test, there can be no probability that it was truly caused by the
driving of Laura “at speed” behind Bob.
For Sherry, she was a witness rather than a participant, hence, the concept of a “secondary
victim”. Establishing a duty of care not to cause psychiatric damage is generally more difficult
than with physical injury. The courts distinguish between ‘primary’ and ‘secondary’ victims.
Primary victims are those who are objectively within the zone of physical danger. Secondary
victims are those who are not. If the claimant is a primary victim, they need only establish that it
was reasonably foreseeable that they would suffer physical harm. A secondary victim, on the other
hand, must establish that it was foreseeable that a person of reasonable fortitude would suffer
psychiatric harm. To show this the claimant must satisfy the test in Alcock vs. Chief Constable of
South Yorkshire, namely that: 1. A close tie of love and affection to a primary victim;
2. Witness the event with their own unaided senses; 3. Proximity to the event or its immediate
aftermath; and 4. The psychiatric injury must be caused by a shocking event.
There is nothing to suggest that Sherry has a close tie of love and affection for Leonard
therefore it is unlikely that a claim would succeed based on witnessing his accident.
In sum, balancing all the facts stated, Bob will not be liable to Dilbert.
Despite a duty of care being owed, there is no breach of that duty. Laura,
who stands the same with Bob, is likely not to be liable to Leonard.
However, there are the issues of whether harm was reasonably foreseeable,
the medical recognition of Leonard’s condition and the legal issue of
remoteness. Laura will not be liable to Sherry due to a lack of relationship in
respect of witnessing Leonard’s accident and proximity in relation to
Rhonda’s accident.
THANK YOU