L8 - Negligence Pt. 1 Flashcards
How is Negligence of Tort defined?
- A civil wrong arising from an act or failure to act, independently of any contract, for which an action for personal injury or property damages may be brought.
- came from Old French, from Medieval Latin tortum, literally: something twisted, from Latin torquēre to twist
What are some key facts about Tort law?
- Non-contractual.
- Not a criminal offence.
- Imposed by law
- E.g. A driver in a car owes a duty of care to other road users.
- E.g.2 An owner of a property owes a duty of care to any visitors.
- Often any losses can be covered by insurance.
What is the primary function of tort law?
- Primary function is to provide remedies for:
- Harm
- Loss
- Infringement of Rights
When can a tort be a criminal offence?
- Could be a tort and a criminal offence:
- E.g. A driver in a car drives recklessly and knocks a cyclist of their bike.
- Criminal – prosecuted for reckless driving
- Civil (tort) – cyclist sues for damages for the bike and personal injury.
What other civil ‘wrong doings’ does tort cover?
- Negligence
- Trespassing
- Nuisance
- Defamation
When can their be an established liability under Tort Law?
Base on the balance of probabilities:
- The defendant owed the claimant a duty of care to the claimant
- The defendant breached the duty of care
- The defendant’s breach caused the damage.
- The damage suffered by the claimant was not too remote (reasonably foreseeable)
In a court case:
- The elements may overlap
- Issues are looked at together rather than separately.
What come under the Duty of Care as a liability for Negligence?
- A party will not automatically be liable for every negligent act committed.
- The defendant must owe the injured claimant a duty of care.
- If the claimant cannot prove this then the defendant cannot be liable in negligence.
- The general test for establishing the existence of a duty of care is based on the ‘neighbour principle’
What was the Case of Duty of Care as a liability of Negligence?
- Donoghue v Stevenson (1932)
What was the Case of Donoghue v Stevenson (1932)?
- Mrs Donoghue was drinking a bottle of ginger beer in a café in Paisley.
- It was bought by her friend.
- A dead snail was in the bottle. She fell ill, and she sued the ginger beer manufacturer, Mr Stevenson for £500.
- No contract with Stevenson so couldn’t sue under contract law.
What was the Issue of Donoghue v Stevenson (1932)?
Issue: Duty of Care
What was the Ruling of Donoghue v Stevenson (1932)?
Ruling. Every person owed a duty of care to their neighbour who could be anyone reasonably foreseen to be injured by their act or omission.
Reasonable to assume someone other than the purchaser may drink the contents so a duty of care was owed to the ultimate consumer.
Why did the Duty of Care test come around?
- The test is objective. It does not look at what the defendant could actually foresee.
- It looks at what a reasonable person ought to have foreseen in the circumstances.
- Since 1932 the neighbour principle developed cautiously at first, then expanded rapidly in the 70s and 80s.
- In the late 1980’s it came to an end as the courts sought to check the growth.
What was the Case that lead to the Three Stage Test for Duty of Care?
Caparo Industries v Dickman (1990)
What was the Case of Caparo Industries v Dickman (1990)?
- Caparo were buying additional shares in Fidelity plc before mounting a takeover bid.
- They relied on the accounts prepared by Dickman.
- The accounts showed a profit of £1.3m but were wrong (the actual figure was
a loss of £465k. - Caparo sued Dickman for negligent misstatement.
What was the Issue of Caparo Industries v Dickman (1990)?
Issue: Duty of Care
What was the Ruling of Caparo Industries v Dickman (1990)?
Ruling. HoL said that Dickman was not liable. Auditors had no duty of care to the public at large. The audit was for shareholders to exercise control over a company, NOT to provide information for takeovers and share dealings.
Led to the Three Stage test.
What was the three stage test for Duty of Care?
Developed out of case law. If a duty of care had clearly been established in previous case law then a duty would still exist. If not follow the three-stage test:
- Was the harm or loss caused reasonably foreseeable?
- Was there a sufficient relationship of proximity between the claimant and the defendant?
- Was it ‘fair, just and reasonable’ to impose a duty of care?
ALL three stages need to be met – cannot claim for them separately as they are linked.
What was the case of Duty of Care as a liability of negligence as harm or loss caused was reasonably foreseeable?
Margereson v JW Roberts (1996)
What was the Case of Margereson v JW Roberts (1996)?
- A factory occupied by R Ltd in Leeds deposited large amounts of asbestos dust outside its perimeters.
- R Ltd admitted that it had taken inadequate steps to deal with the problem of dust contamination.
- M, as a child, had played in the factory’s loading bay where there was very great asbestos contamination.
- She developed mesothelioma.
What was the issue of Margereson v JW Roberts (1996)?
Issue: Duty of Care – Reasonably foreseeable
What was the Ruling of Margereson v JW Roberts (1996)?
Ruling. Knowledge about the harm of asbestos was known at the time of exposure. The risk was reasonably foreseeable.
What does it mean by proximity under the second stage of the Duty of Care Three Stage Test?
2 - Was there a sufficient relationship of proximity between the claimant and the defendant?
Refers to legal proximity, not physical proximity
- Personal relationship
- Length of time between events
- Whether goods have been tampered with
What were the 3 Cases of Duty of Care as a liability of negligence as there was a sufficient relationship of proximity between the claimant and defendant?
- Evans v Triplex Safety Glass Company Ltd (1936)
- Home Office v Dorset Yacht Co (1970)
- Topp v London Country Bus (South West) Ltd (1993)
What was the Case of Evans v Triplex Safety Glass Company Ltd (1936)?
- Mr. Evans had bought a car from Vauxhall fitted by the manufacturer with a windscreen manufactured by Triplex Glass.
- Mr. Evans and his family were injured during an accident when the windscreen was shattered due to a collision.
- The claimant has to show proof in order to get a claim that he/she has used the product appropriately according to the instructions given
What was the Issue of Evans v Triplex Safety Glass Company Ltd (1936)?
Issue: Duty of Care - proximity
What was the Ruling of Evans v Triplex Safety Glass Company Ltd (1936)?
Ruling. Triplex Glass did not owe Mr. Evans a duty of care as the glass could have been weakened in the time elapsed.
In addition the defect may have been caused by other reasons such as poor fitting by Vauxhall.
What was the Case of Home Office v Dorset Yacht Co (1970)?
- 10 borstal trainees were working on Brownsea Island in the harbour under the control of three officers employed by the Home Office.
- Seven trainees escaped one night.
- The trainees boarded a yacht and collided with another yacht, the property of the respondents, and damaged it.
- The owners of the yacht sued the Home Office in negligence for damages.
What was the Issue of Home Office v Dorset Yacht Co (1970)?
Issue: Duty of Care – proximity. 3rd party
What was the Ruling of Home Office v Dorset Yacht Co (1970)?
Ruling.
Usually one person is under no duty to control another, but here, the court ruled that there was a duty of care. There was a special relationship between the Home Office and the boys. The damage was foreseeable.
What was the Case of Topp v London Country Bus (South West) Ltd (1993)?
- The defendant bus company left a mini-bus in a lay-by overnight.
- It was unlocked and the keys left in the ignition.
- The driver who was expected to pick the bus did not turn up for his shift.
- Thieves stole the bus and drove it away.
- The bus knocked a woman off her bicycle and killed her.
- Her husband brought an action for damages.
What was the Issue of Topp v London Country Bus (South West) Ltd (1993)?
Issue: Duty of Care – proximity. 3rd party
What was the Ruling of Topp v London Country Bus (South West) Ltd (1993)?
Ruling.
The bus company did not owe a duty of care for the acts of the third party. It was not foreseeable that thieves would take the bus and run a woman off her bicycle.
Why is the Third Test of the Three Stage Test of Duty of Care different?
Can be used to show no duty of care even if the first two tests are met.
Usually a matter of public policy and the court decides if it is in the public interest.
What were the 4 Cases of Duty of Care as a liability of negligence that is fair, just and reasonable to impose it?
- Marc Rich v Bishop Rock Marine (1995)
- Hill v Chief Constable of West Yorkshire (1989)
- Swinney v Chief Constable of Northumbria Police (1996)
- Rigby v Chief Constable of Northamptonshire (1985)
What was the Case of Marc Rich v Bishop Rock Marine (1995)?
- After a ship suffered a crack in its hull a surveyor from a classification society inspected the ship and recommended that after certain repairs the ship could continue its voyage.
- A few days later the ship sank and its cargo was lost so the cargo owners sued a number of parties including the classification society.
What was the Issue of Marc Rich v Bishop Rock Marine (1995)?
Issue: Duty of Care – Was it ‘fair, just and reasonable’ to impose a duty of care?
What was the Ruling of Marc Rich v Bishop Rock Marine (1995)?
Ruling. House of Lords held that the elements of forseeability and proximity were satisfied.
However the defendants were an independent, non profit making entity, created for the sole purpose of promoting the safety of lives and ships at sea, fulfilling a role otherwise fulfilled by the state.
- On this basis it was held that to impose a duty of care would be unfair, unjust, and unreasonable.
What was the Case of Hill v Chief Constable of West Yorkshire (1989)?
- Between 1975 and 1980, Peter Sutcliffe killed 13 young women and attempted to kill seven others. His last victim, Jacqueline Hill, a 20-year-old student at Leeds University, was murdered in Leeds on 17 November 1980.
- Mrs Hill sued on the grounds that the police had acted too late in the first murders.
What was the Issue of Hill v Chief Constable of West Yorkshire (1989)?
Issue: Duty of Care – Was it ‘fair, just and reasonable’ to impose a duty of care?
What was the Ruling of Hill v Chief Constable of West Yorkshire (1989)?
Ruling. House of Lords While a chief police officer has an obligation to enforce the law, there were no specific requirements as to the manner in which they must do so.
There is generally no duty of care to individual members of the public.
What was the Case of Swinney v Chief Constable of Northumbria Police (1996)?
- Mr & Mrs Swinney came across information relating to the identity of a person responsible for the unlawful killing of a police officer. - They passed this information on to the police which was later stolen from an unattended police car.
- Mr & Mrs Swinney received violent threats and suffered psychiatric injury as a consequence. They brought a negligence claim against the police for the psychiatric injury suffered.
What was the Issue of Swinney v Chief Constable of Northumbria Police (1996)?
Issue: Duty of Care – Was it ‘fair, just and reasonable’ to impose a duty of care?
What was the Ruling of Swinney v Chief Constable of Northumbria Police (1996)?
Ruling. By accepting the information, knowing of its confidential nature, the police had assumed a responsibility to deal with the information in an appropriate manner. A duty should be owed to protect informers, and to encourage them to come forward without an undue fear of the risk that their identity will subsequently become known to the suspect or to his associates
What was the Case of Rigby v Chief Constable of Northamptonshire (1985)?
- The police fired a gas canister into the plaintiffs’ premises in order to flush out a dangerous psychopath.
- There had been a real and substantial fire risk in firing the canister into the building and that risk was only acceptable if there was fire fighting equipment available to put the fire out at an early stage.
- No equipment had been present at the time and the fire had broken out and spread very quickly.
What was the Issue of Rigby v Chief Constable of Northamptonshire (1985)?
Issue: – Was it ‘fair, just and reasonable’ to impose a duty of care?
What was the Ruling of Rigby v Chief Constable of Northamptonshire (1985)?
Ruling. The police were liable. The defence of necessity might be available to police officers when looking at a claim for damage to property.
Can there be Negligence if people Fail to Act?
- No duty for failing to act even if someone suffers
- Saving someone in water
- Stopping a child running into traffic.
- Essentially no liability for pure omission.
- However if it is part of you job – e.g. lifeguard – you have a duty to act.
Can there be Negligence if there is Pure Economic Loss?
- Pure economic loss – recovery is very limited
- Economic loss as a consequence of personal injury or damage to property is covered.
What are the 3 Cases of Economic Loss is a Duty of Care which is liable for Negligence?
- Weller v Foot and Mouth Research Institute (1966)
- Spartan Steel v Martin & Co Contractors Ltd (1973)
- Ultimares Corporation v Touche (1931)
What was the Case of Weller v Foot and Mouth Research Institute (1966)?
- A virus escaped from the defendant’s premises and affected cattle rendering them unsaleable.
- The claimant, an auctioneer, brought an action for loss of profit he would have made had the cattle not been so affected.
What was the Issue of Weller v Foot and Mouth Research Institute (1966)?
Issue: Duty of Care – Economic Loss
