1. Consider whether grant Hayden and Ilsa have any rights and remedies against Callum, in connection
with the injuries that each suffered, arising out of the collision between Callum’s car and the
scaffolding. (25 marks)
Grant has suffered personal injury and may bring a claim against callum in negligence. In order to
succeed in his claim he must prove that a duty of care was owed, that the duty was breached and
that 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 persons
whom it is reasonable to foresee may be harmed by your acts or omissions. This duty was further
developed 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 some
injury may be caused to grant on the scaffolding when it was hit, there was definitely proximity as
the grant fell as a result of the impact. It can be seen as fair just and reasonable to impose a duty of
care 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 a
prudent and reasonable man would not do.” This is known as the reasonable person test and is
objective for example in Nettleship v Weston (1971) a learner driver was liable when she caused an
accident, the individual cannot claim they were doing their best if this is below the standard of the
reasonable man. The reasonable man can change dependant on the defendant’s age and
capabilities. In Paris v Stepney Borough Council (1951) the reasonable person can be seen to take
extra care of the resulting damage from their actions are likely to be particularly serious. This can be
applied in this case as driving in a n absent minded way in a car is highly likely to cause serious injury
in some way.
Damage must be caused by Callum’s act. This can be established through investigation causation
both in fact and in law. Causation in fact is found using the ‘but for’ test. Grant’s injury would not
have occurred but for callum's actions therefore this satisfies the test. Causation in law is found if
the act was the substantial and operating cause of the result. Cullum’s actions were the operating
and substantial cause of the injury. Once this has been established the remoteness of damage may
be considered, this was defined in the wagon mound where the claimants wharf set alight after oil
drifted on the tide. Here the kind of damage, the sequence of events and the extent of the damage
will be considered.
If this claim was successful grant may claim for damages in which he may receive compensation for
loss of earnings, cost of medical treatment and for the injury itself. However his damages may be
reduced due to contributory negligence, this is where the claimant has contributed to the damage
caused. In this case grant hung off the side of the scaffolding putting him in danger and failed to
wear a safety harness which would potentially have prevented his injuries. In this scenario the
claimant is not to blame for the incident but his actions made his injuries worse than they should
have been. An example of this is in Froom v Butcher (1975) where the claimant was not wearing a
seatbelt and in O’Connel v Jackson (1971) where the claimant was not wearing a helmet while on a
motorbike.

2. Hayden has not suffered any physical injury. However, he may be able to claim for psychological
harm if he is suffering from an independently verified recognised psychiatric illness based on medical
evidence and falls into one of the categories accepted by the courts as a claim. The injury must be
more than mere emotion. In this scenario Hayden is suffering prolonged psychological problems. In
order to succeed in a claim Hayden must prove he is either a primary of secondary victim in order for
a duty to be owed. A primary victim is someone who is directly involved in an n incident and is either
injured or feared injury or a rescuer. In this scenario Hayden is a primary victim as he was narrowly
missed when grant fell from the scaffolding and could potentially have been injured. This can be
seen in page v smith (1996) the claimant was involved in a road traffic accident and suffered
psychiatric 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 the
incident from across the road. The injury must be caused by a sudden shock as shown in Sion v
Hampstead Health Authority (1994) where there was a slow realisation which was not sufficient to
claim. The psychiatric damage must also be reasonably foreseeable and a person or reasonable
fortitude may be affected in the same way, the individual cannot claim they are more susceptible to
psychiatric injury. A secondary victim must be in close proximity the incident which Ilsa was and the
incident must be perceived with the individuals own senses, which it was. The area where this claim
will most likely fail is upon investigation of a relationship as the claimant must have a close tie of
love and affection with the individual injured which as far as is known did not exist. Therefore this
claim would fail.