Negligence

Question 1

Definition

Answer 1

• The BREACH of a legal DUTY OF CARE which CAUSES DAMAGE/HARM undesired by D to C’s person, land or goods
• An act or omission by D in breach of any duty of care owed by D to C which causes harm to a claimant’s “interest protected by law”
• This harm must not be too remote (must be foreseeable)

Question 2

Duty of Care

Answer 2

• Was the defendant under a duty to act in a manner so as not to cause harm to the claimant?
• If not, then no liability can be imposed-irrespective of how reprehensible the defendant’s conduct was or how much the claimant has suffered
• NO duty of care = NO Liability

Question 3

Winterbottom v Wright (1842) 10 M&W 109

Answer 3

• The defendant contracted with the postmaster general to supply a mail coach for the purpose of carrying the mail along a particular route. A third party also contracted with the postmaster general to provide horses and a mail coachman to operate the mail coach. The claimant was the mail coachman contracted by the third party. The claimant was injured as a result of several latent defects in the coach and attempted to bring an action against the defendant with whom he had no contractual agreement.
• The claimant’s claim failed. It was held that although the defendant contracted to maintain the mail coach in a safe condition and undoubtedly failed to do so, the duty was owed under the defendant’s contract with the postmaster general. The defendant owed no duty to the claimant because the duty could not extend beyond the contractual one. It was considered that to allow the claimant’s claim to succeed would cause a duty to be held in all circumstances where harm occurred. There would be no limit to the number of claims that might arise. It was recognised that leaving the claimant without remedy was harsh, but that this should not influence the court’s decision.

Question 4

Donoghue v Stephenson [1932] AC 562

Answer 4

Prior to Donoghue:
No liability without some form of pre-existing relationship, such as a contract:

• Mrs D’s friend buys a ginger beer for her from a Café
• Mrs Donoghue poured the beer into a glass where she found a decomposed snail
• Mrs D suffers from gastroenteritis (physical illness) and shock.
• What is her relationship with either the café owner or the manufacturer?
• None whatsoever-no contract (no consideration?)
• Who can she claim damages from? Is there a cause of action?
• The courts found that the manufacturer had a duty of care and therefore her claim was successful

Question 5

‘The Neighbour Principle’

Answer 5

Lord Atkin - “persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being affected when I am directing my mind to the acts or omissions which are called into question.”

Question 6

Anns v Merton LBC [1978] AC 72

Answer 6

o D owed C a duty to take reasonable care (provided it was reasonably foreseeable that a failure to take a reasonable care by D would cause damage to C) UNLESS there was some policy reason why no duty should be held to be owed
o Broadens liability

Question 7

Test:

Caparo Industries v Dickman [1990] 1AllER568

Answer 7

• Three-stage ‘test’:
➢ Foreseeability
➢ Proximity
➢ Fair, Just and Reasonable to impose a duty
• NB: Not a test for the imposition of liability - Caparo provides us with guidelines.
➢ OR incrementally and by analogy: confirmed in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4

Question 8

Kent v Griffiths [2000] 2 All ER 474

Answer 8

forseeability
• An ambulance was called, and it failed to arrive in good time
• It was foreseeable the claimant would suffer some injury for the delay

Question 9

Osman v Ferguson [1993] 4 All ER 344

Answer 9

• Failure to: apprehend D; charge D with the offences that he had admitted; and to ascertain D’s whereabouts/failing to link him to the theft of the shotgun.
• No duty of care owed to the Osman family
• ‘Sufficient’ Proximity?
• Yes, they were in a closer relationship with the police than, for instance, Jacqueline Hill. In the circumstances they were more at risk than the public at large.
C/A: Claim struck out purely on the same policy grounds as Hill

Question 10

Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4

Answer 10

• C knocked to the ground and injured during an arrest of a drug dealer on a city street
• Court of Appeal: relied on Hill, held no DOC
Supreme Court:
• Caparo guidelines do not apply to all negligence cases only novel cases
• Incremental approach
• Lord Mance: ‘direct physical interface between the police and the public, in the course of an arrest placing an innocent passer-by at risk’, should now be recognised as ‘an established area of general police liability for positive negligent conduct which foreseeably and directly inflicts physical injury’ (at [97]).

Question 11

Caparo Industries v Dickman [1990] 1AllER568

Answer 11

• Three-stage ‘test’:
➢ Foreseeability
➢ Proximity
➢ Fair, Just and Reasonable to impose a duty
• NB: Not a test for the imposition of liability - Caparo provides us with guidelines.
➢ OR incrementally and by analogy: confirmed in Robinson v Chief Constable of West Yorkshire Police [2018] UKSC 4

Question 12

Stovin v Wise [1996] AC 923

Answer 12

proximity
Mr Stovin suffered serious injuries when he was knocked off his motorcycle by a car driven by Mrs Wise. She had pulled out of a junction in which visibility of traffic was hampered due to a bank of earth which was topped by a fence. The trial judge held that Mrs Wise was 70% to blame for the accident and that Norfolk County Council were 30% to blame because they knew the junction was dangerous and had been negligent in not taking steps to make it safe. The Council appealed.

Held:
The council were not liable as liability related to an omission. There had only been three accidents in twelve years which was not enough to render the junction a ‘cluster site’ under the Council’s policy for prioritising funding which required five accidents in three years.

Lord Nicholls: “Proximity is a slippery word. Proximity is not a legal shorthand for a concept with its own objectively identifiable characteristics. Proximity is a convenient shorthand for a relationship between two parties which makes it fair and reasonable that one should owe the other a duty of care”

Question 13

Barnett V Chelsea V Kensington Hospital Management Committee [1969] 1 Qb 428
but for test

Answer 13

causation

’ D must have done the sole act which caused damage’

Question 14

balance of probability

hoston v east berkshire health authority

Answer 14

causation

51% chance = liable

Question 15

material increase

McGHEE V NATIONAL COAL BOARD [1972] 3 All ER 1008,

Answer 15

causation

‘multiple acts: one more prevalent’

Question 16

multiple tortfeasors

FAIRCHILD V GLENHAVEN FUNERAL SERVICES LTD [2002] UKHL 22

Answer 16

causation

‘must consider liability of non-materially increasing tortfeasors’

Question 17

Volenti non fit injuria



Smith v Baker (1891) AC 325:

Answer 17

“One who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong.”

Question 18

Volenti non fit injuria

Answer 18

D must show that:

1. C knew the nature and extent of the risk of harm; and
2. C Voluntarily agreed to it.

• Subjective test
• When it applies it is a complete defence; the claimant recovers nothing.

For the defence to apply:
• agreement by C to absolve D from legal responsibility for his conduct;
• this agreement must be voluntary, not due to compulsion by D or external circumstances; and
• C should have full knowledge of the nature and extent of the risk it is alleged that he has assumed.

Question 19

CONTRIBUTORY NEGLIGENCE

Answer 19

• A partial defence- when C’s injuries have been caused partly by D’s negligence and party by C’s negligence.
• Law Reform (Contributory Negligence) Act 1945 s.1(1): where “any person suffers damage as the result partly of his own fault… the damages recoverable shall be reduced”

Question 20

EX TURPI CAUSA NON ORITUR ACTIO
Defence also known as “illegality”


Answer 20

• From a disreputable cause no action will arise – a matter of public policy.
• D may have been negligent but C cannot profit from this fact as C was engaged in a criminal/immoral activity at the time.
“ Given that the doctrine is one of public policy, I would accept that there should indeed be more flexibility in its operation. The doctrine will not apply , for example in minor traffic offences”. Joyce v O’Brien [2013] EWCA Civ 546 per Elias LJ

Question 21

Breach of the Duty of Care
 questions

Answer 21

• Did the defendant’s conduct fall below the standard of care imposed on them by law?

Two Questions:
• What is the standard imposed by law?
• What facts are of relevance in determining whether or not the defendant’s conduct fell below this standard?

Question 22

Standard of Care

Blyth v Proprietors of the Birmingham Waterworks (1856) 11 Exch

Answer 22

• ‘Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate human affairs, would do, or doing something which a prudent and reasonable man would not do.’

Question 23

Special Standards of Care


Answer 23

• Children
• Mental/Physical Infirmities
• Special Skill or Competence

Question 24

Children

Answer 24

Mullin v Richards [1998] 1 All ER 920
“An ordinary prudent 15 year old”

Orchard v Lee [2009] EWCA Civ 295
“13 year old boys will be 13 year old boys who will play tag… If that is what they are doing and they are not breaking any rules they should not be held liable in negligence.”

Question 25

Mental or Physical Infirmities


Answer 25

Mansfield v Weetabix [1998] 1 WLR 126
“a reasonably competent driver unaware that he is, or may be, suffering from a condition that impairs his ability to drive”
Roberts v Ramsbottom [1980] 1 WLR 823

Question 26

Skilled Persons


Answer 26

Nettleship v Weston [1971] 2 QB 691
The standard of care expected of a learner driver was that of a reasonably competent driver – the learner’s “incompetent best was not good enough”

• Wilsher v Essex Area Health Authority [1988] AC 1074
• Wells v Cooper [1958] 2 All ER 527

Question 27

Professional Persons

Answer 27

Bolam v Friern Hospital Management Committee [1957] 2 All ER 118

“…[a doctor] is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art…”
“Putting it another way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view”

• Can be applied outside of medicine – to other professionals, e.g. Lawyers

Bolam test ‘refined’ in Bolitho v City and Hackney Health Authority [1996] 4 All ER 771

1. A doctor knows best only if they act reasonably and logically and get their facts rights.
2. If a particular practice, even if widely accepted within a profession, is logically unsupportable, a defendant cannot escape liability simply by showing that others would have acted as they did.
3. It was the court that had to satisfy itself that the medical experts’ opinion was reasonable - can apply a check to expert opinion if considered unreasonable.