Negligence 1 (introduction and duty of care)

Question 1

Introduction

Answer 1

• Negligence is one of a type of law known as torts.
• As we will see, negligence is governed by a different set of principles to those that govern contract.
• There is, however, one similarity between contract and tort – the governing principles have evolved over time through a series of decisions made by judges and very little of the law relating to negligence is contained in Acts of Parliament.

Question 2

Contract vs Negligence

Answer 2

• The main differences, in terms of the facts of cases, between contract and negligence, is that the former will always involve some prior contact between the parties before a contract is entered into. Not so negligence.
• Contracts will usually result from the deliberate act(s) of the parties.
• Negligence arises ‘accidentally’.
• Harm inflicted deliberately will be a matter for the criminal law.

Question 3

What is ‘Negligence’?

Answer 3

Negligence is the breach of a legal duty to take care which results in damage to the claimant.
-This definition contains the elements of negligence that have to be proven, if the claimant is to succeed in a legal action to obtain damages (compensation).

Question 4

What does a claimant have to prove?

Answer 4

There are three separate elements each of which have to be proven if a claimant is to be able to obtain damages from the person being sued. They are –

• That the defendant owed the claimant a Duty of care,
• That the defendant Breached of that duty, and
• That the defendant’s breach of duty caused the damage (harm) that the claimant has suffered.
• In short – duty, breach and damage

Question 5

First thing to prove is?

Answer 5

Whilst each of these three elements has to be proved by satisfying the tests that each element contains, if the claimant cannot show that the defendant owed him/her a duty of care, then the claimant’s case will be dismissed without the need for consideration of the other two elements.
The starting point will, therefore, be a discussion of the duty of care.

Question 6

Donoghue v Stevenson 1932

Answer 6

• D was drinking a glass of ginger beer from a bottle purchased by her friend. She had consumed some of the drink. When she poured the rest from the bottle, she found the decomposing remains of a snail. This caused shock and severe gastro-enteritis. She sued the manufacturer of the ginger beer (S) in tort.
• She could not sue the retailer in contract

Question 7

Lord Atkin’s ‘Neighbour Test’

Answer 7

“The rule that you must love your neighbour becomes in law: You must not injure your neighbour, and the lawyer’s question Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.”

Question 8

Who then, in law, is my neighbour?

Answer 8

The answer seems to be persons who are so 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

Question 9

Modern formulation

Answer 9

-This was set out by the House of Lords in Caparo Industries plc v Dickman & others 1990
The three criteria are –
-Foreseeability of damage
-Proximity of relationship, and
-That it is fair, just and reasonable that the law impose a duty

Question 10

Foreseeability

Answer 10

Could the reasonable man predict that someone would be harmed by his careless act? The precise nature of the harm suffered does not need to be predictable – not does the actual person harmed need to be identified in advance.

Question 11

Proximity

Answer 11

not just physical closeness, but a broader legal concept of proximity.

Question 12

Fair, Just and Reasonable

Answer 12

essentially this is dictated by policy considerations.

Question 13

Unforeseeable claimants

Answer 13

In some circumstances a defendant may owe a duty to a general class of people, but not to the particular defendant.
-Test = is injury to that claimant within the contemplation of a reasonable person.
The defendant’s conduct must have been negligent with regard to the particular claimant. It cannot be if the particular claimant or injury cannot be foreseen.

Question 14

Bourhill v Young 1943

Answer 14

An example of an existing scenario failing to provide an action for negligence.

• Here a road user (Y) was held not to owe a duty of care to a pedestrian (B).
• To succeed, B would have had to have proved that the injury that she sustained was one that Y ought reasonably to have contemplated as arising as a result of his negligence. HoL said that she could not do so.

Question 15

Haley v London Electricity Board

Answer 15

Blind man fell into hole dug in pavement by LEB. Hole guarded only by a large hammer.
Court found that it was reasonably foreseeable that a blind man would be walking along the pavement (a shopping street) and that the D had a duty to take steps to prevent this from happening.

Question 16

Omissions

Answer 16

The law does not require people to take steps to prevent other people from harming themselves.
Passive inaction = OK
Omissions during positive conduct = liability
e.g. You do not have to tell a blind man that he is about to fall down an open manhole cover, but you do have to take all necessary steps to prevent injury or damage to others whilst you are driving a car.

Question 17

Omissions liability

Answer 17

Although, as a general rule, nobody can be liable for omissions, there are two circumstances where liability will be imposed.

1) where a defendant has acted.
2) where there is a special type of relationship between the parties.

Question 18

Where a defendant acts

Answer 18

Even if a defendant is doing something that they are not obliged to do, having decided to do it, it has to be done carefully.
Winfield & Jolowicz – if a person engaged in a rescue which he was not obliged to undertake negligently inflicts some positive harm upon the claimant he may be liable for that.

Question 19

Barrett v Ministry of Defence

Answer 19

• A sailor got so drunk he was insensible. A senior officer had the drunk taken to bed, where he was left on his own.
• Unfortunately, the drunk choked on his own vomit and died. MoD liable as the sailor should have been monitored to prevent this.
• Widow’s damages reduced as sailor held ⅔rds liable for his own death, as he voluntarily drank himself into a stupor.

Question 20

Omission further detail

Answer 20

There is a difference between not doing something to prevent harm and doing something that makes the situation worse.
The former, if an omission, is not justiciable.
The latter may give rise to liability.
Capital & Counties plc v Hampshire County Council.

Question 21

Capital & Counties plc v Hampshire County Council.

Answer 21

• A Fire Brigade does not have a common law duty of care and is not under a duty to respond to a 999 call, nor to take care when doing so.
• However, where a Fire Brigade creates the danger that causes injury, it will be liable in negligence.
• Here the senior fireman at the scene ordered that the sprinkler system on premises be switched off. This allowed the fire to spread making the fire damage worse than it should have been.
• County Council vicariously liable as they ‘owned’ the Fire Brigade

Question 22

Special relationship

Answer 22

The Law imposes an extra burden on those in a position of responsibility to others, e.g.
-Employer and Employee (Barrett v MoD)
-Parent & child
-Occupier & visitor
The issue is the reliance that one party to the relationship is entitled to place on the other party to ensure safety.

Question 23

Immunities and Limited duties

Answer 23

These are policy decisions taken by judges, so it will not come as a surprise to learn that judges have immunity from negligence!

• There are, however, sound practical reasons –
• An action against a judge risks merely re-litigating the original action.
• If a judge gets it wrong there is always the possibility of an appeal

Question 24

Stovin v Wise

Answer 24

Here the court found that a Highway Authority was not negligent when it had failed to take the measures necessary to remove an obstruction.
-Motorist emerging from side turning hit motorcyclist that she had been unable to see coming along the main road as there was an earth bank on the land next to the road that obstructed her view. The Authority had not removed the obstruction despite being aware of the danger it posed.

Question 25

Police

Answer 25

• The Courts are rather generous towards the police when it comes to the investigation of crime.
• No general duty of care is owed towards the public regarding the conduct of a criminal investigation, should the police fail to identify or capture a criminal who then injures a member of the public

Question 26

Hill v Chief Constable of West Yorkshire Police

Answer 26

• Here the mother of the last victim of a serial killer (The Yorkshire Ripper) failed in an action for damages arising from the murder of her daughter. She claimed the police were negligent in not arresting Sutcliffe earlier – before he murdered her daughter.
• HoL held that there was no general duty of care and that, as a matter of public policy, the police were immune from actions in negligence regarding the investigation and suppression of crime

Question 27

Osman v Fletcher

Answer 27

• Here a teacher formed an unnatural attachment to a schoolboy. After a series of events including an attack on the boy, the teacher shot the boy’s father dead and shot and injured the boy.
• Mother and boy sued the police. Matter eventually referred to the European Court of Human Rights, which said that the absolute defence granted by police immunity was wrong and that competing public interests must be examined in all cases.

Question 28

Swinney v CC of Northumbria

Answer 28

• Mrs S provided information about the man who knocked down and killed a PC in strict confidence as the villain (X) was known to be violent.
• Investigating officer left info in briefcase in car – stolen. Info then given to X who threatened S. She sued the police.
• CoA held that there was a duty to take reasonable care to prevent disclosure of info supplied by informers but, on the facts, police had not been negligent.