Murad V Abebi Tort Law

Scenario Question1.

Murad v Abebi:

This is relating to negligence, which according to, “allows a claim where a defendant has breached a legal duty to take care, and as a result of that breach, damage or injury has been caused to the claimant.”^[1] For negligence to be established, we first need to prove that Murad owed Abebi a duty of care. Duty of care is defined as “the legal obligation to take reasonable care to avoid causing damage”, in Nettleship v Weston,^[2] it was stated that road users have a duty of care towards each other. Now since Murad, is a delivery driver, and Abebi was on the road also, they are both considered to be road users. Therefore, a duty of care is established between Murad and Abebi.

 Abebi should then argue that Murad breached his duty of care by hitting her with the car. In Blyth v Birmingham Waterworks Co (1856)^[3], it was stated that a driver breaches his duty of care when he fails to maintain the same standards of care as a reasonable driver would. In the case of Murad, who spent the night studying and was finding it hard to concentrate on the road due to tiredness, we can argue that the breach occurred, since a reasonable driver would not have taken the risk of driving while being tired and not fully concentrated.

After establishing the breach, it is necessary to prove that the damages suffered are caused by the breach, which is known as causation. For that, the “But for” test, which was established in Barnett v Chelsea & Kensington Hospital,^[4] is commonly used in order to establish factual causation. But for Murad driving carelessly and negligently due to tiredness, he would not have missed the entry and mistakenly entered the land, Hence, the accident would not have happened. Factual causation is met. As for Legal causation, the Wagon Mound Test^[5] is used in order to see whether the tort was foreseeable. In this case, As Hattie horses is a riding stable, it is foreseeable that Murad may collide with horses, with or without people riding them. Hence, the damage was foreseeable. Therefore, Causation is met. Moreover, the damage suffered by Abebi was foreseeable, since colliding with horses, is likely to amount to people being thrown on the ground resulting to personal injury. In such circumstances the remoteness of damage set also in the Wagon Mound test is satisfied.

However, Murad will be able to raise various defences. Murad can argue that there was contributory negligence based on the Law Reform Contributory Negligence Act 1945.^[6] The fact relating to this is Abebi and Zoe not having lights, or High Vis Jackets on and also the lights were fading. Murad can argue that this prevented him from seeing them coming, since there was dusk and it was evening. If Abebi and Zoe had lights on them, there will be a high possibility that Murad might see them. Therefore, the accident would not have occurred. Another arguable defence Murad can use, is Hattie moving Abebi’s body from the road, contrary to the advice of the call handler, which can be considered as a Novis Actus Interveniens which broke the chain of causation. A NIA is an intervening act that breaks the chain of causation, it was established in Knightley v Johns^[7]. Abebi had broken her neck and she subsequently developed paralysis in her lower limbs. Murad could argue that it was Hattie moving Abebi’s body that caused Abebi to break her neck and to develop paralysis. Hence, Hattie’s actions are considered as intervening.

Since all the elements are satisfied, Abebi might successfully bring a claim against Murad. However, Murad, having several defences against the claim, might reduce his liability.  

Hattie horse’s v Murad:

Murad has suffered injury (broken toe) due to a bale of hay. He can bring a claim against Hattie horses, under the Occupiers’ Liability Act 1984.^[8]

The existence of the warning at the entrance of Hattie horses indicates it is a private property. Murad “inadvertently” driven into the property, means he did not have the intention to enter the land, this is considered “mistaken entry”. However, in the law of Torts, this will give rise to trespass. Under the Occupiers’ Liability Act 1984, occupiers of land are still owed a duty of care towards non-visitors (i.e. trespassers).

For an occupier to owe a duty of care towards a trespasser, three conditions stated in the s1(3) of the Occupiers Liability Act 1984 need to be satisfied. First, the occupier should be aware of the danger or should have reasonable grounds to believe it exits, considering Hattie horses is a stable, the occupier might be aware that a bale of hay is a danger, however it is foreseeable that a stable will contain bales of hay.  Secondly, the occupier should know that the trespasser may come in the vicinity of the danger, based on the facts, it is obvious that the occupiers expect visitors to be next to the bale of hay. And finally, the occupier should be expected to protect from the danger. In this case, the occupier is not expected to protect visitors from a bale of hay given the nature of the business/land, as it is used as part of the business activity. It can also be argued that, since it was a dusk evening and it was dark, Murad failed to take care of his own safety by running inside the stable looking for help, in the dark without lights.

On this basis, since not all the conditions are met, it seems unlikely that Hattie horses owe a duty of care to Murad.

Murad v Zoe:

PTSD is a recognised medical condition as it was held in Hinz v Berry^[9], Hence, Zoe, although physically intact, can successfully bring a claim against Murad for psychiatric injury, which is “the term usually used in negligence cases to describe an injury that affects the mind, rather than the body”^[10].

We should first, establish whether Murad owe Zoe a duty of care. The damage suffered by Abebi was Psychiatric rather than physical, it was due to the sudden shock of the accident. There are two categories under Psychiatric injury in tort, primary and secondary victims. Considering Zoe was in the zone of the danger, since she was present at the place of the accident, and Murad’s car was coming towards her and Abebi, hence was put at risk too. A reasonable man in Murad’s position would have foreseen that Zoe might be injured as well. Therefore, Zoe is a primary victim (Page v Smith [1996])^[11] and is likely to be owed a duty of care from Murad.

Zoe, is likely to be awarded damage for her psychiatric illness and also for loss of earnings since she can no longer work.

Murad v Tam:

Tam can bring a claim for Psychiatric Illness against Murad, under negligence. In order to claim for psychiatric damage, Tam needs to suffer from a recognised medical condition; In the case of Hinz v Berry [1970]^[12], the court ruled that a grief, is not considered as a recognised medical condition. Hence the claim cannot be made. However, the breach of duty and causation are established.

As tam was not physically present in the place of the accident, and just witnessed the live stream, he can be classified as a secondary victim. In order for a defendant to be owed a duty of care, claimant needs to meet the criteria of being a secondary victim, stated in the case of Alcock & ors v Chief Constable of South Yorkshire [1992]^[13] as the Alcock control mechanisms which are, the relationship between the Primary and Secondary victim which should be a close tie of love and affection, the distance between the victims, which should be proximate and finally the means by which the secondary victim watched the accident. ^[14]

Tam is Abebi’s father. In the case of Alcock, the relationship parent-child, was recognised as being a relationship of close tie of love and affection. Hence, the 1st condition is met. However, for the 2nd condition, it is only mentioned in the scenario that Tam witnessed the accident via the live stream without mentioning his location (being close or far from the victim), so evidence is needed in order to establish whether this condition is met. However, one can argue that the facts are partly similar to the Alcock case, where most claimants’ claims succeeded. The similarity to the case of Alcock & ors v Chief Constable of South Yorkshire [1992] rise also in the 3rd condition, as it states that secondary victims should witness the accident by their own unaided senses. Tam watched the accident via the live stream, which is non edited.

Murad breach of duty is set when causation is established. The “But for” test is positive in this case, since but for Murad colliding with Abebi’s horse, Tam would not have been grief-stricken.

Any claims against Murad would also involve Floss foods indirectly, under Vicarious liability. Floss foods, being Murad’s employer, it can be vicariously liable for the damages if these requirements are met.

Essay question :

Duty of care is a term used in Tort law, that is defined as « the legal obligation to take reasonable care to avoid causing damage»^[15]. Similarly to physical injury, psychiatric illness is also considered to be a damage in Tort, and the claimant can successfully claim for damages, if he satisfies the requirements needed.  However, this area of Tort law, was severally critisiced since many argue that some rules of it, are unfair to most claimants.