Chapter 4: Negligence

Question 1

What is negligence?

Answer 1

Negligence is the breach of a legal duty to take care, which results in damage to another.

Question 2

What are the three things a claimant must prove in order for an action in negligence to succeed?

Answer 2

That a duty of care was owed to him or her by the defendant.

The defendant breached that duty.

As a consequence of that breach, damage or loss has been suffered.

Question 3

What is meant by a ‘duty of care’?

Answer 3

There is a duty to take reasonable care not to cause foreseeable harm to others.

Question 4

What is the ‘neighbour principle’?

Answer 4

The case of ‘Donoghue v Stevenson’ was the first to establish that a duty of care may be owed to a person, even where no contractual relationship exists.

Question 5

Facts of ‘Donoghue v Stevenson (1932)’

Answer 5

A bottle of ginger beer was purchased in a cafe.
Donoghue drank part of it then discovered the remains of a decomposing snail in it.
As a result, she became severely ill.
The manufacturer claimed that as there was no contractual relationship between himself and the claimant he did not owe her a duty of care.

Question 6

Held in ‘Donoghue v Stevenson (1932)’

Answer 6

Everyone owes a duty of care to their ‘neighbour’, to ‘persons so closely and directly affected by my act that I ought to have reasonably have had them in contemplation as being so affected.’
Thus a manufacturer owes a duty of care to a consumer of their product.

Question 7

Outcome of Hedley Byrne v Heller

Answer 7

The HOL redefined the neighbour principle by acknowledging that a claim for financial loss suffered could be made if a ‘special relationship’ existed between the claimant and defendant.

Question 8

What case laid down four tests should be followed in determining whether a duty of care exists?

Answer 8

The Nicholas H (Marc Rich & Co v Bishops Rock Marine) 1995

Question 9

What are the four tests that should be followed in determining whether a duty of care exists?

Answer 9

Was the damage reasonably foreseeable by the defendant at the time of the act or omission?

Is there a neighbourhood principle or sufficient proximity between the parties?

Should the law impose a duty of care between the parties?

Is there a matter of public policy which exists or requires that no duty of care should exist?

Question 10

Who does the burden of proof lie with?

Answer 10

It is usually up to the claimant to prove that there has been a breach.

However in the case of ‘res ipsa loquitur’ the burden of proof shifts to the defendant.

Question 11

What is the principle of ‘res ipsa loquitur’?

Answer 11

The facts of the case speak for themselves.
In these situations, it is felt that the fact there is a harm shows there must have been a breach.

Question 12

What is meant by ‘standard of care’?

Answer 12

The claimant must show that the defendant failed to take the degree of care which a reasonable person would have taken in the circumstances.

Question 13

What are the three principles established by case law in relation to the standard of care?

Answer 13

Particular skill

Lack of skill

Lack of hindsight

Question 14

What is the standard of care under a particular skill?

Answer 14

If the defendant possesses a particular skills, the standard of care expected will be that of a reasonable person with that skill.

Question 15

What is the standard of care under a lack of skill?

Answer 15

Lack of training or the peculiarities of the defendant are not relevant.
The standard of skill expected from a trainee accountant is the same as that of any reasonable accountant.

Question 16

What is the standard of care under a lack of hindsight?

Answer 16

Focuses on the defendant’s knowledge at the time. Therefore, hindsight or knowledge of facts at a later date is irrelevant.

Roe v Minister of Health (1954)

Question 17

Facts of ‘Roe v Minister of Health (1954)’

Answer 17

A doctor administered an anaesthetic using all normal precautions at the time of his actions.
The patient was paralysed due to contamination of the anaesthetic due to contamination in a way not discovered until later.

Question 18

Held in ‘Roe v Minister of Health (1954)’

Answer 18

The doctor could not be judged against information that was not available at the time of his actions.
He had followed proper practice at that time.

Question 19

What does ‘body of opinion’ mean?

Answer 19

A professional is expected to follow the general practice and body of opinion in that area.

Question 20

What does ‘advantage and risk’ mean?

Answer 20

When deciding if reasonable care has been taken the courts will weigh up the benefit and risk of the defendant’s actions.

Question 21

What does ‘emergency’ mean?

Answer 21

If an emergency situation caused the defendant to act negligently, this will be taken into consideration.

Question 22

What does ‘vulnerability’ mean?

Answer 22

If the claimant is vulnerable and the defendant is aware of this vulnerability, then a higher standard of care is expected.

Paris v Stephney Borough Council (1951)

Question 23

Facts of ‘Paris v Stephney Borough Council (1951)’

Answer 23

Paris was employed by the council on vehicle maintenance.
It was not normal practice to supply the workers with protective goggles when working.
Paris was already blind in one eye.
Whilst working a chip of metal flew out and hit him in his good eye rendering him completely blind.

Question 24

Held in ‘Paris v Stephney Borough Council (1951)’

Answer 24

Paris was especially vulnerable to injury, and as such a higher standard of care was owed to him than to other workers.

Question 25

With regard to loss caused by the breach it what case will there be no liability on the defendant’s part?

Answer 25

If the damage was caused by something or someone else.

Question 26

When would it be determined that the defendant has not caused the loss?

Answer 26

If the claimant would have suffered the loss regardless of the defendant’s conduct.

Barnett v Chelsea & Kensington Hospital (1969)

Question 27

Facts of ‘Barnett v Chelsea & Kensington Hospital (1969)’

Answer 27

B attended the hospital complaining of severe stomach pains and vomiting.
The doctor on duty didn’t examine him but told the nurse to send him home and tell him to contact his GP the next day.
B was suffering from arsenic poisoning and died during the night.

Question 28

Held in ‘Barnett v Chelsea & Kensington Hospital (1969)’

Answer 28

By the time B attended the hospital his symptoms were too advanced and there was nothing the hospital could have done to prevent his death.
There was no causal link between the hospital’s breach and his death and as such they were not liable to his wife.

Question 29

What three losses are normally recoverable?

Answer 29

Loss as a result of personal injury.

Damage to property.

Financial loss directly connected to personal injury (i.e. loss of wages).

Spartan Steel Alloys v Martin Co Contractors (1972)

Question 30

What loss is not usually recoverable?

Answer 30

Pure financial loss is very rarely recoverable.

Spartan Steel Alloys v Martin Co Contractors (1972)

Question 31

Facts of ‘Spartan Steel Alloys v Martin Co Contractors (1972)’

Answer 31

The claimant was halfway through smelting a steel ingot when a cable was damaged by the defendant, causing the electricity supply to be cut off.

Question 32

Held in ‘Spartan Steel Alloys v Martin Co Contractors (1972)’

Answer 32

The claimant was entitled to damages for the damaged ingot (physical harm) and the loss of profit on that ingot (financial losses due to physical harm).
However, they were not entitled to damages for the lost profits due to the general disruption to the business as these were purely financial in nature.