Module 8: Law of Negligence Flashcards
What branch of law is negligence in?
Scotland- law of delict
England- law of tort
What are the two obligations imposed under negligence branch of law?
Primary duty to avoid wrongful conduct
Secondary obligation to make reparation for damage caused by breach of primary
What is negligence?
Breach of a legal duty of care which results in damage (often unintentional) to another
To establish negligence a pursuer/claimant must prove what?
Owes duty of care
Breached
As a result suffered loss/damage/injury
What is duty of care?
Reasonable care not to cause foreseeable harm to others
e.g. statute, implied term in contract
Donoghue v Stevenson 1932
Duty of care
Gifted ginger beer with snail in
Manufacturer claim no contract as she didn’t buy
Manufacturer should have been able to foresee someone other than person buying would drink it
DUTY TO ULTIMATE CONSUMER
Neighbour principle
What is the neighbour principle?
We owe a duty of care to anyone whom we can reasonably foresee might be harmed by our actions
Hedley Byrne Ltd v Heller and Partners 1964
Heller provided credit reference that was a negligent misstatement but included disclaimer
Did avoid liability
Obiter dicta duty of care could be owed by parties in a SPECIAL RELATIONSHIP to take reasonable steps to minimise risk of pure economic loss
Would have been liable without disclaimer
What is a special relationship?
Professional advisers
Expert capacity
Home Office v Dorset Yacht Co Ltd 1970
Officers supervising young offenders allowed to escape
Stole boat and crashed into other boats
Supervisors owed duty of care to owners of damaged boats
Caparo Industries v Dickman 1990
C takeover of F based on audit
Overvalued F
C sued for recovery of economic loss
Auditors owed duty of care to shareholders as a body not individually C
Established 3 criteria that should be satisfied before duty of care owed
What are the 3 criteria that should be satisfied for duty of care?
Reasonably foreseeable?
Relationship of proximity?
Fair, just and reasonable?
Hughes v Lord Advocate 1963
Workmen left manhole open with shelter and warning lamps
Young children went in knocked lamp and was badly burned
Reasonably foreseeable that there was a risk of injury by burning
What is the determinate class?
Limited class of persons who might reasonably suffer damage as a result of negligence
Bourhill v Young 1942
Y crashed car and died
B didn’t see it but heard and saw blood
Claimed suffered miscarriage
NO relationship of proximity so no duty of care
Didn’t see and nit at risk of physical injury
Hill v Chief Constable of West Yorkshire Police 1988
Mrs H mother of last victim of Yorkshire Ripper
Police had Sutcliffe and released him
Then he killed Mrs H daughter
Sued
Would result in police carrying out their ‘duties in a detrimentally defensive manner’
Not FAIR, JUST OR REASONABLE
Next step once duty of care established?
Prove there was a breach
Factors to consider as to whether a duty of care has been breached?
Professional/skilled person
Probability of injury- higher risk greater care
Seriousness of risk
Practicability and costs- can’t eliminate all
Latimer v AEC Ltd 1952
Employee slipped on floor after flooded, sawdust down but not on that section
Not liable as had done all that was necessary to reduce risk
Only way to completely avoid is to close factory but that no reasonable
What does res ipsa loquitur mean?
Facts speak for themselves
Scott v London and St Katherine Docks Co 1865
Hit by sugar that fell from window
Res ipsa loquitur
Facts spoke for themselves, negligent for allowing to fall from window
Causation and remoteness of damage?
No liability in negligence unless loss or injury has been caused by breach of duty of care
What is the but for test?
If the loss would not have occurred but for the defendants conduct
Then they caused the loss
Wilsher v Essex Area Health Authority 1988
Premature baby became blind after birth
Argued doctor negligent by not noticing high dose of oxygen received
Number of possible causes of the blindness, only 1 was oxygen
Couldn’t identify which so no direct link shown
What does novus actus interveniens mean?
Intervening act
Courts will only attribute liability where the chain of events in unbroken
McKew v Holland, Hannen and Cubitts Ltd 1970
McKew injured leg due to negligence of employer
Tried to descend stairs with no help
Injured other leg
Not liable to injuries to other leg because his conduct was an NOVUS ACTUS INTERVENIENS
How my the chain of causation be broken?
By claimant
3rd party act
Unforeseeable natural event
Remoteness of damage rule?
Can’t be claimed unless naturally and directly arise out of wrongdoing
The Wagon Mound 1961
Ship docked and refuelled
Oil negligently leaked
Spark fell and started fire
Pollution was the foreseeable risk not fire
What are the factors that must be in place for a special relationship to exist?
1 person must be acting in a professional or expert capacity
Other relied on the advice given
Person giving advice knows it will be relied on
ADT Ltd v BDO Binder Hamlyn 1955
BDO joint auditor of BSG
Overvalued BSG and ADT paid more than should have
BDO responsible for statement that represent true and fair view
Audit negligent
BDO assumed duty of care to ADT
What are the most commonly relied upon defences in negligence cases?
Contributory negligence
Volenti non fit injura
What is contributory negligence?
Claimant aggravated/exacerbated injury or damage by own negligence
May reduce compensation if can prove they were partially at fault
Sayers v Harlow UDC 1958
Locked in public toilet because of faulty lock
Tried to climb out and injured herself
Method used to climb out contributed to her injures so compensation reduced
What is volenti non fit injura?
If actions carry an inherent risk If can be shown both parties expressly consented to the risk or it can be implied by conduct Awareness of risk alone not sufficient Aware and consented PROVIDES COMPLETE DEFENCE
Titchiner v British Railways Board 1983
Climbed through gap in fence and trespassed on railway
Hit by train
Sued BRB for failing to keep safe
Fencing adequate, she accepted risk of injury by breaking through gap
BRB not liable
What is Vicarious Liability?
Exception to general rule which normally requires victim to sure wrongdoer personally
e.g, commonly employer is vicariously liable for employee acting within scope of employment
For an employer to be vicariously liable what two conditions must be met?
Contract of employment
Commit wrong whilst acting within the course of his employment
Kirkby v National Coal Board 1958
Miner went into adjoining field to smoke
Prohibited by employer and under statute
Caused explosion
Employer NOT vicariously liable as on ‘frolic of his own’ not what employed to do
What are the 4 potential categories to determine if employer is vicariously liable for employees actions?
IS:
Carried out instruction
Does what employed to do even in an unauthorised manner
IS NOT
Outwith scope of employment
Use employers time for ‘frolic of his own’
Rose v Plenty 1976
Milkman employed 13 y/o R to help deliver milk
Contrary to instruction from employer
R injured
Milkman’s purpose was to further employer’s interests
Employee was vicariously liable
