Assignment 2 (A) Causes of action that Ellynathans estate would pursue against Zolla.

Negligence Negligence is defined as the breach of legal duty to take care which results to damage undesired by the defendant, to the plaintiff meaning that the plaintiff and the defendant need not have any relationship that creates duties and rights as between them. In this case, Zolla who is the headmaster owes his students a duty of care. The test for duty of care is foreseeability. If the plaintiff is found to have foreseen the injury, then he or she is found liable. In the case of Miriti v Firoze Construction Ltd where the defendant dug a trench close to the plaintiffs house and did not cover them. They were flooded with water and the plaintiffs child fell and drowned in the trench. It was held that it was foreseeable that children of young age would be attracted to such pools hence the defendant ought to have taken the necessary precautions. By Zolla having the knowledge of what Ellynathan was undergoing, he had foreseen the injury and is hence liable for his death. There is also a breach of duty in this case. The test for breach is that of a reasonable man; the question is that what a reasonable person under the circumstances would would have acted. However, the circumstances of the case differ and what may be reasonable in one case may not be so in another. In the case of Roe v Minister of Health, the doctor had administered to a patient a spinal anaesthetic in preparation of a minor operation. The anaesthetic was contained in a glass capsule which was kept in a solution of phenol-benzene which later leaked into the capsule and contaminated the anaesthetic. The patient became paralysed waist down. It was held that the doctor was not negligent since at that time it had not been discovered that the phenol solution could have leaked to the capsule. The standard is not that of a most skilled person but that of a reasonably competent person in that field. Zolla as a headmaster is supposed to curb some bad behaviour in school like that of Billy of bullying his fellow classmate Ellynathan. When the test of reasonableness is applied, a reasonable headmaster would have stopped Billys behaviour by punishing him. There must also be a causal link between the defendants acts and the plaintiffs injury. Three factors must be considered which are: factual causation, legal causation and the remoteness of the damage. When establishing factual causation, we apply the but for test. Were it not for the defendants act, the injury would not have occurred. The rule of causation was restated in Cork v Kirby Maclean Ltd: if the damage would not have happened but for a particular fault, then that fault is the cause of damage; if it would have happened just the same fault or no fault, the fault is not the cause of the damage. If not for Zolla not taking action against Billy, Ellynathan would not have faced his death. Legal causation must then be established, in that the plaintiff must show that under law the defendant is liable for the damages suffered. Zolla was aware of what was happening but did not take action and he was under an obligation to do so. Remoteness of damage must also be considered. The rule is that damage must be of a

kind which was foreseeable. Damage is remote if its against public policy to recover it. In this case, the damage is not remote and hence Zolla must pay for it.

The chances of the cause of action to succeed are high since the plaintiffs are able to establish the cause of action on the defendant. (B) The cause of action Besh would have against Ellynathans estate. Negligence Negligence is defined as the breach of legal duty to take care which results to damage undesired by the defendant, to the plaintiff meaning that the plaintiff and the defendant need not have any relationship that creates duties and rights as between them. The issue here will be; is there a duty not to cause emotional distress through reckless statements or acts? The answer is yes; where the defendant by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to the plaintiff which results to bodily harm. In Wilkinson v Downtown, the defendant by way of a joke told the plaintiff that her husband had been engaged in an accident and that she was supposed to go in a cab and with two pillows to fetch him. The resultant shock to Ps nervous system produced severe and permanent physical consequences. It was held that the defendant was liable. In Bourhill v Young, the plaintiff had just alighted from a car when she heard the sound of a collision between a motorcycle and a car. The motorcyclist was driving recklessly hence the accident and he died. The plaintiff was 40 feet away; she did not see the accident herself but only saw blood at the scene after the body was removed. The plaintiff stated that she suffered a nervous shock which led to her miscarriage. The plaintiff sued the motorcyclists estate and it was held that there was no duty between the plaintiff and the motorcyclists. In this case, there was no duty of care owed to Besh by Ellynathan. Besh was not put at a reasonable apprehension of immediate bodily injury. Ellynathan will not then be found liable for Beshs severe depression. The chances of Besh succeeding in the cause of action are very less since there is no duty of care, hence no liability.

(C) The cause of action by Ellynathans estate against the ambulances driver Negligence

Negligence is defined as the breach of legal duty to take care which results to damage undesired by the defendant to the plaintiff, meaning that the plaintiff and the defendant need not have any relationship that creates duties and rights as between them. The ambulance driver owes a duty of care to Ellynathan. The test is that of foreseeability. When the ambulance driver was called, it was obvious that there was an emergency but he delayed. This means that the damages were foreseeable and that the driver is liable for the damages incurred from his negligent actions. There is also a breach of legal duty by the ambulance driver. The test for breach of legal duty is that of the reasonable man. The standard is not that of the most highly qualified professional in the field in question; the skill required is that of a reasonably competent person in the field in question. A reasonable driver of an ambulance when called is supposed to respond immediately and as for him he delayed by around forty minutes leading to the death of Ellynathan. There is a causal link between the drivers negligent acts and Ellynathans death. Were it not for the driver delaying, Ellynathan would have been rushed to hospital and maybe his life would have been saved. Under law, the driver is negligent since he acted below the standards of a reasonable competent ambulance driver.

ASSIGNMENT 3 A CLAIM BY C AGAINST B NEGLIGENCE Negligence is a failure to behave with the level of care that someone of ordinary prudence would have exercised under the same circumstances. The behaviour usually consists of actions, but can also consist of omissions when there is some duty to act. There must be a duty of care between the plaintiff and the defendant. In this case, B owes C a duty of care as a neighbour in law. As described by Lord Atkins, a neighbour in law; are any persons who are closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question. Due to his already dry grass which had not been harvested and B had been warned by C a week before the incident, he posed danger to the maize farm of C. The test for duty of care is foreseeability. The danger posed by B not harvesting his grass was foreseeable and this means he was liable. As seen in the case of Miriti v Firoze Construction Ltd where the defendant dug a trench close to the plaintiffs house and did not cover them and they were flooded with water. The plaintiffs child fell and drowned in the trench. It was held that it was foreseeable that children of tender age would be attracted to such pools hence the defendant ought to have taken the necessary precautions.

Breach of legal duty must also be established. The test for the breach of legal duty is an objective test which is that of a reasonable man. The question is what a reasonable person would have done or omitted when faced with the same circumstances. As a reasonable person, he was supposed to harvest the dry grass since dry grass poses danger since it easily catches fire. There some precautions that the defendant would have carried out for him to escape liability. He didnt take any and this makes him liable. A causal link between the defendant and the plaintiff must also be established. When determining factual causation and apply the but for test, were it not for Bs omission, C would not have suffered the damages. Legal causation is also supposed to be established. The plaintiff must show that under law the defendant is responsible for the damages suffered. In this case, Bs omission makes him liable for the damages in law.

A CLAIM BY B AGAINST A NUISANCE Nuisance may be defined as the use of ones property in such a way that it causes discomfort or interference to the owners of adjacent properties. Private nuisance is essentially a land based tort. In order to bring a claim in private nuisance, a claimant must have an interest in the land in which he asserts his enjoyment or use has been unreasonably interfered with. Lord Denning view on private nuisance is that; in order to support an action on the case for a private nuisance, the defendant must have used his own land or some other land in such a way as injuriously to affect the enjoyment on the plaintiffs land in the case of Southport Corporation v Esso Petroleum. There must be unlawful interference. The claimant must prove that the defendants conduct was unreasonable, thereby making it unlawful. The rule is; use your own property as not to injure your neighbours. In this case, As tanker landed on its side and the fuel spill on Bs grass pasture which becomes the unlawful interference.