How to answer an essay question (Torts)

Here is a practice essay-style Tort question, and further down the page is the methods you should use to answer the question. An example answer to the essay question will be revealed soon, so please post yours in the comments below. 

"Dan, a 14 year old boy who was using his mobile phone, crossed the road without checking the traffic and was hit by a car driven by Kate. Kate was driving well over the speed limit. Pete saw the accident and because he had first aid training, he ran to assist Dan who was badly injured. Dan was taken to hospital. His mother, Maggie, was away working at the time of the accident and although she was told about it immediately, it took her six hours to reach the hospital. She fainted when she saw the horrific extent of Dan's injuries. Both Pete and Maggie have since been diagnosed as suffering from psychiatric illness as a result of their experiences."

And here's how you would go about tackling this essay...

1~ First you should analyse the facts

• Dan, a 14 year old boy who was using his mobile phone, crossed the road without checking, and was hit by a car driven by Kate.
• Kate was driving well over the speed limit
• Pete saw the accident and as he had first aid training, ran over to assist Dan who was badly injured. 
• Dan was taken to hospital.
• His mother, Maggie, was working away at the time of the accident and although she was tld about it immediately, it took her six hours to reach the hospital. She fainted when she saw the horrific extent of Dan's injuries. 
• Both Pete and Maggie have both been diagnosed as suffering from psychiatric illness as a result of their experiences. 

2~ Draw out the facts of the problem in a diagram if it helps you. Here's one I made for this problem...

3~ Establish who might have a claim and who might be sued. This can be done in a table under the headings "claimant" "defendant" and "other" or can be drawn out like below...

4~ Now it's time to identify the issues that may be involved and this will be crucial to whether or not they may be able to successfully claim. 

Dan's negligence? 14 year old: standard of care and duty to secondary victims

Kate's negligence: driving over the speed limit. Makes her liable for subsequent injuries? Breaks causation from Dan?

Pete ran to assist Dan: suffered psychiatric illness: primary victim as rescuer or secondary victim as a bystander?

Dan taken to hospital: physical injuries. Sue Kate but contributory negligence? 

Maggie arrived six hours later to hospital. She then fainted when she saw the horrific injuries: secondary victim? Immediate aftermath?

This question raises some issues of ambiguity, this is good because it gives you a chance to show off your knowledge of the law, by saying something along the lines of "Pete could be considered a rescuer as --- and so would be a primary victim according too ---, however Pete could also be considered a bystander according to --- however this would make him a secondary victim and unlikely to receive compensation as a result of his injuries."

5~ Rules of Law to be applied:

   Dan’s negligence?  14 year old: standard of care

   Standard of child: Mullins.

   Duty of care for secondary victims from self risk - Greatorex

—

—   Kate’s negligence: driving over limit. Makes her liable for subsequent injuries? Breaks causation from D?

   Ordinary driver standard: Nettleship. Is intervention outside risk created by D: Lodge?

—

—   Pete ran to assist Dan: suffered psychiatric illness: primary victim as rescuer or secondary as bystander?

   Rescuer unlike bystander has been owed duty: Chadwick/Bourhill. But White seems to require physical risk as in Page. Not meet Alcock criteria for 2ry

—

—    Dan taken to hospital: physical injuries. Sue K but contributory negligent?

   owed duty: Donoghue; damages reduced for contrib negligence:1945 Act Froom

—  Maggie six hours to hospital. Fainted when saw horrific injuries: secondary victim. Immediate aftermath?

   Proximity: McLoughlin two hours OK; Alcock eight hours too late;

   Seghal all part of same story?

6~ And now all that's left to do is put all the different parts of your answer together...

—D was probably negligent despite age standard in Mullins. Hence, contributory negligence to any claim against K (1945 Act, Froom) and might be liable to P and M if owes a duty and if chain of causation not broken.

—

—K owed D duty Donoghue  and in breach Nettleship, hence liable for his injuries. May be liable for psychiatric illness to P and M if owes a duty; negligence may break chain of causation from D’s negligence if outside risk Lodge; probably no break so D may also be liable, but Greatorex.

—

—P may be owed a duty if rescuer treated as primary victim following Chadwick but White interpretation of Chadwick suggests only if in zone of danger. If not primary victim, is a secondary victim but does not meet Alcock criteria, so treat as mere bystander not owed duty: Bourhill

—M may be owed duty if sufficient proximity to meet Alcock criteria as illustrated in Mcloughlin. Note Alcock held eight hours too long but Seghal puts emphasis on being part of same story. Note also Law Commission report suggest should be owed duty.

If you're struggling to remember all the different facts, here's an easy mnemonic to help you remember...