Negligence 1 (introduction and duty of care) Flashcards
Introduction
- 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.
Contract vs Negligence
- 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.
What is ‘Negligence’?
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).
What does a claimant have to prove?
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
First thing to prove is?
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.
Donoghue v Stevenson 1932
- 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
Lord Atkin’s ‘Neighbour Test’
“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.”
Who then, in law, is my neighbour?
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
Modern formulation
-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
Foreseeability
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.
Proximity
not just physical closeness, but a broader legal concept of proximity.
Fair, Just and Reasonable
essentially this is dictated by policy considerations.
Unforeseeable claimants
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.
Bourhill v Young 1943
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.
Haley v London Electricity Board
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.
Omissions
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.
Omissions liability
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.
Where a defendant acts
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.
Barrett v Ministry of Defence
- 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.
Omission further detail
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.
Capital & Counties plc v Hampshire County Council.
- 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
Special relationship
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.
Immunities and Limited duties
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
Stovin v Wise
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.
