law intro > negligence A > Flashcards
negligence A Flashcards
what are the 4 principles of negligence?
on the balance of probabilities:
- the defendant owes a duty of care to the claimant
- the defendant has breached the duty of care
-the defendants breach actually caused the damage
- the damage caused by the claimant was not too remote (could you have forseen that the damage would have happened)
in the court case the elements may overlap and are seen together rather than seperately
to be done for is tort law is it on the balance of probabilities or no reasonable doubt
on the balance of probability judged by the judged
whats defamation?
saying something about someone thats untrue
whats a negligance claim usually about?
whos at fault
do you go to jail for tort law?
no
what is tort law?
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.
its not a criminal offence
is there specific legislation for tort law?
no its all about a duty of care eg drivers have a duty of care for other road users not to speed
tort law example
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?
is to provide remedies for:
Harm
Loss
Infringement of Rights
what example could be a tort and 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.
will a party be liable automatically for every negligent act committed?
A party will not automatically be liable for every negligent act committed
what are the tests to see if a party owes a duty of care in order for it to be a negligent claim?
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’
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.
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.
Point of Law: Every person owes a duty of care to their neighbour who could be anyone reasonably foreseen to be injured by their act or omission.
what does the neigbour principle look at?
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.
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.
Ruling: 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.
when do you follow the three stage test?
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.
what is 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.
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.
Ruling: Knowledge about the harm of asbestos was known at the time of exposure. The risk was reasonably foreseeable.
Point of Law: There is more likely to be a duty of care if the harm or loss caused was reasonably foreseeable.
The three-stage test – stage two.
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
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
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
Point of Law: Manufacturers owe a duty of care not only to the immediate purchasers but also to the end-users or consumers of their products.
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.
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.
Point of Law: One person does not have a responsibility for the acts of a third party.
The three-stage test – stage three.
Was it ‘fair, just and reasonable’ to impose a duty of care?
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.
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.
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.
Point of Law: It must be fair, just and reasonable for there to be a duty of care.
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.
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.
Point of Law: It must be fair, just and reasonable for there to be a duty of care.
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.
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
Point of Law: It must be fair, just and reasonable for there to be a duty of care.
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.
Ruling: The police were liable. The defence of necessity might be available to police officers when looking at a claim for damage to property.
Point of Law: It must be fair, just and reasonable for there to be a duty of care
Failure 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.
duty of care - economic loss
Economic Loss
Pure economic loss – recovery is very limited
Economic loss as a consequence of personal injury or damage to property is covered.
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.
Ruling: The claim failed. Pure economic loss is not recoverable.
Point of Law: Pure economic loss is not recoverable.
Spartan Steel & Alloys Ltd v Martin & Co Ltd (1973)
Spartan Steel had a stainless steel factory which obtained its electricity by a direct cable from the power station. Martin were doing work on the ground with an excavator and negligently damaged that cable (Spartan Steel did not own the cable).
The factory had no electricity for 15 hours which caused physical damage to the factory’s furnaces and metal, loss of profit on the damaged metal and loss of profit on the metal that was not melted during the time the electricity was off.
Spartan Steel claimed all the three heads of damage.
Ruling: Spartan Steel could only recover the damages to their furnaces, the metal they had to discard and the profit lost on the discarded metal. They could not recover the profits lost due to the factory not being operational for 15 hours.
Point of Law: Pure economic loss is not recoverable.
Why limit economic loss?
Concerns about the opening of the litigation floodgates. E.g. increase in false or exaggerated claims. Spartan Steel v Martin & Co Contractors Ltd (1973)
Refers back to Ultramares Corporation v Touche (1931) over concerns that the defendant’s liability would be ‘in an indeterminate amount for an indeterminate time to an indeterminate class.’
Ultramares Corporation v Touche (1931)
Ultramares made loans to Touche’s clients after relying on their financial statements.
Touche’s client went bankrupt and Ultramares brought a suit seeking to extend liability to the accountant for negligence in financial reporting and, alternatively, seeking recovery on a fraud theory.
Ruling: The claim in negligence failed on the ground that the auditors owed the plaintiff no duty of care, there being no sufficiently proximate relationship.
It contained the now famous line on “floodgates” that the law should not admit “to a liability in an indeterminate amount for an indeterminate time to an indeterminate class.”
Point of Law: Pure economic loss is not recoverable.
Exceptions to the rules on economic loss?
Negligent Misstatement - Hedley Byrne v Heller (from Misrep Lecture)
Recently extended to cover pure economic loss from negligent omissions (a failure to act) - White v Jones (1995)
Hedley Byrne v. Heller (1964) – see misrep lecture too
Hedley Byrne (HB) had a customer, Easipower Ltd, put in a large order. HB wanted to check their financial position, so asked their bank, National Provincial Bank, to get a report from Easipower’s bank, Heller & Partners Ltd. who replied in a letter that was headed, “without responsibility on the part of this bank”
It said that Easipower was, “considered good for its ordinary business engagements”.
The letter was sent for free.
Easipower went into liquidation, and Hedley Byrne lost £17,000 on contracts.
Hedley Byrne sued Heller & Partners for negligence.
Ruling: The HoL found for Heller because of the exclusion clause, but if it hadn’t been there, it would have found that the relationship between the parties was “sufficiently proximate” as to create a duty of care.
It was reasonable for them to have known that the info that they had given would likely have been relied upon for entering into a contract of some sort.
Point of Law: Pure economic loss from negligent misstatement is recoverable.
Spring v Guardian Assurance Ltd (1994)
Spring was employed by a company that acted as estate agents and agents for the sale of insurance products by Guardian Insurance.
When Guardian Assurance bought Spring’s employers, they dismissed from his job as a company sales representative.
Upon seeking employment with another company, he received an unfavourable reference from the first defendant and the new employer refused to appoint him.
He claimed this amounted to negligent misstatement, and that the company was liable for damages in tort.
Ruling: Guardian Insurance owed the plaintiff a duty of care in tort. An employer who provides a reference in respect of an employee to a prospective new employer owes a duty of care to the employee in respect of preparation of the reference.
Point of Law: Pure economic loss from negligent misstatement is recoverable.
White v Jones (1995)
Two daughters of 78-year-old Mr White sued Mr Jones for failing to follow their father’s instructions when drawing up his will.
Mr White and his daughters had fallen out briefly and he asked the solicitor to cut them out of the will. Before he died, they resolved their problems.
He asked Mr Jones to change the will again so that £9,000 would be given to his daughters.
After he died, with the will still the same, the family would not agree to have the settlement changed.
Ruling: Lord Goff held that the daughters would be able to claim. A special relationship existed between the daughters and the solicitor and that Mr Jones had assumed responsibility towards them even though there was no contract between them.
Point of Law: Pure economic loss from negligent omission is recoverable.
The test case for the ‘neighbour principle’ is Donoghue v Stevenson (1932)
true or false
true
“Damage over a certain value” is one of the Three-Stage tests
true or false
false
Is economic loss ever recoverable?
yes
You can be sued for negligence if you fail to act as a member of the public?
true or false
false
when is standard of care valid?
Standard of care taken by the ‘reasonable man’
The standard of care is an OBJECTIVE one.
The defendant must act with the degree of care and skill expected from a REASONABLE and PRUDENT person in the same circumstances.
No defence to say they are INEPT or UNSKILLED.
Eg Learner Driver, Novice Skier.
Nettleship v Weston (1971)
Mr. Nettleship, agreed to teach Mrs Weston to drive in her husband’s car, after he had checked her insurance policy.
During one of the lessons, the defendant lost control of the car and caused an accident in which the plaintiff was injured.
The defendant argued that the plaintiff was well aware of her lack of skill and that the court should make allowance for her since she could not be expected to drive like an experienced motorist.
Ruling: The Court of Appeal, held that applying a lower standard to the learner driver because the instructor was aware of her inexperience would result in complicated shifting standards.
E.g. Junior Doctor.
Point of Law: The defendant must act with the degree of care and skill expected from a reasonable and prudent person in the same circumstances.
Blyth v Birmingham Waterworks Company (1856)
The defendant had installed a fireplug into the hydrant near Mr Blyth’s house.
That winter, during a severe frost, the plug failed causing a flood and damage to Mr Blyth’s house. Blyth sued the Waterworks for negligence.
Ruling: The court found that the severe frost could not have been in the contemplation of the Water Works as it was so rare.
They could only have been negligent if they had failed to do what a reasonable person would do in the circumstances.
Point of Law: The defendant must act with the degree of care and skill expected from a reasonable and prudent person in the same circumstances.
Corporation of Glasgow v Muir (1943)
A group of children were having a day out with their Sunday school.
Due to rain, children went into a tearoom run by Glasgow Corporation.
At this time a large tea urn was being carried and the tea was spilt and scalded several children (Muir being one of them).
The parents of the girl sued Glasgow Corporation, claiming that they owed the child a duty of care and that they had breached this.
Ruling: The court held that the manageress in charge owed a duty of care, generally, to everyone in the tearoom.
However, she did not owe a duty of care to the Sunday school, to take additional precautions to prevent their being injured as a result of her allowing them to enter.
Lord Macmillan, stated that the reasonable man is: ‘….presumed to be free both from over-apprehension and from over-confidence’.
Point of Law: The defendant must act with the degree of care and skill expected from a reasonable and prudent person in the same circumstances.
Orchard v Lee (2009)
The claimant was a school dinner lady acting as a supervisor in a children’s playground.
She sustained injuries when a 13-year-old boy ran backwards into her while playing a game of tag.
She sued the boy in the tort of negligence.
Ruling: a child is only held to the standard of a reasonable child of his age rather than a reasonable adult.
“The requisite level of carelessness will not be found where the child is playing a game in a playground, not breaking the rules of that game, and not behaving in a manner which is significantly outside of the norms of a game of that nature played by 13-year-olds. “
The defendant was not in breach.
Point of Law: A child is only held to the standard of a reasonable child of his age rather than a reasonable adult.
The Lady Gwendolen (1965)
The defendants were Brewers who used a ship to move their stock from Dublin to Liverpool.
On the way they crashed.
They argued that they should not be judged by the standard of ship owners but instead by a lower standard as they were brewers.
Ruling: The court stated the point quite nicely: ‘the law must apply a standard which is not relaxed to cater for factual ignorance of activities outside brewing: having become ship owners they must behave as reasonable ship owners
Point of Law: Skilled defendants are not judged by a higher standard.
Bolam v Friern Management Committee (1957)
Mr Bolam was a voluntary patient at Friern Hospital where he agreed to undergo electro-convulsive therapy.
He was not given any muscle relaxant, and his body was not restrained during the procedure.
He flailed about violently before the procedure was stopped, and he suffered some serious injuries.
He sued the Committee for compensation. He argued they were negligent for (1) not issuing relaxants (2) not restraining him (3) not warning him about the risks involved.
Ruling: If the doctor acts in accordance with skilled medical opinion he is not negligent even if other doctors would have taken a different path. The hospital was not liable.
It brought about the Bolam test – “a doctor is not considered negligent if their actions align with the practices supported by a responsible body of medical opinion within the same field.”
Point of Law: The defendant must act with the degree of care and skill expected from other professionals in the same field.
Once the duty of care is determined, the next question is:
Did the defendant act below the Standard of Care? Was it reasonable in the circumstances to expose the claimant to the risk of harm?
Likelihood of Harm
Seriousness of the Harm
Practicability of precautions
Social Utility
General Practice
Bolton v Stone (1951)
A batsman from the visiting team hit the ball for six. The ball flew out of the ground, over a 17’ fence, hitting the claimant, Miss Stone, who was standing outside her house.
There was evidence that a ball had been hit that far out of the ground only very rarely, about six times in the last 30 years, although people living closer to the ground reported that balls were hit out of the ground a few times each season.
The claimant argued that the ball being hit so far even once was sufficient to give the club warning that there was a risk of injuring a passer-by.
Ruling: The cricket club were not negligent. They had erected a fence and the risk of it going over was very small.
“The risk in this case may have been foreseeable, but it was so highly improbable that a reasonable person could not have anticipated the harm to the claimant and would not have taken any action to avoid it.”
Point of Law: A reasonable person is not usually expected to take precautions against something where there is only a small risk of it occurring.
Miller v Jackson (1977)
Miller’s house was close to a village cricket green.
Balls were hit over the fence a few times a season and the property was damaged, as well as a chance of injury.
Ruling: The cricket club was liable. The risk was large enough to expect more precautions.
Point of Law: A reasonable person is not usually expected to take precautions against something where there is only a small risk of it occurring.
Hilder v Associated Cement Manufacturers Ltd (1961)
The Defendants owned a piece of unused land next to a road.
The defendants knew it was quite usual for some children to play football on the land.
The Claimants husband was on a passing motor bike and suffered a fatal accident when he was hit by a ball.
Evidence showed that the ball was frequently kicked into the road. The Defendants took no precautions i.e. no fence around the land.
Ruling: The Court concluded that there had been negligence. The defendant had to bear damages.
The Court found the defendant to be negligent for failing to take precautions to prevent footballs from being kicked onto the road because, given the circumstances, there was a significant likelihood that passers-by would sustain injuries as a result of such accidents
Point of Law: A reasonable person is not usually expected to take precautions against something where there is only a small risk of it occurring.
Haley v London Electricity Board (1965)
Some workmen were digging a trench in a pavement. They went off to lunch. They had nothing to fence of the trench, so they left a shovel and pick at one end and a sign at the other end to warn pedestrians.
The claimant, a blind man, tripped on the sign and fell hitting his head. As a result of the fall, he became deaf.
The defendant argued they had done all that was necessary to warn an ordinary person of the danger and there was no need to take extra as it was not foreseeable that a blind person would be walking unaided down that street.
Ruling: The defendant was in breach of duty. It was foreseeable that a blind person might walk down the street and they should be given appropriate protection.
Point of Law: A reasonable person is not usually expected to take precautions against something where there is only a small risk of it occurring.
Paris v Stepney Borough Council (1951)
Paris was employed by the then Stepney Borough Council as a general garage-hand. He had sight in only one eye, and his employer was aware of this.
The council only issued eye protection goggles to its employees who were welders or tool-grinders. In the course of his usual work, Paris received an injury to his sighted eye.
Ruling: On appeal it was decided that Stepney Borough Council was aware of his special circumstances and failed in their duty of care to give him protective goggles
Point of Law: A reasonable person is expected to take greater steps if the seriousness of harm is particularly great.
Latimer v AEC Ltd (1953)
The claimant worked in the defendant’s factory and slipped up on the factory floor. The factory had become flooded due to adverse weather conditions.
The defendant’s had put up warning signs mopped up and placed sawdust in the most used places to make it as safe as possible.
Ruling: There was no breach of duty. There was no duty to close the factory. The defendant only had to take reasonable precautions to minimise the risk which they had done. There was no need to go to great expense to eliminate any possible risk and thus no obligation to close the factory.
Point of Law: An employer’s duty to provide a safe working environment does not extend to eliminating all risks entirely, but rather to take reasonable precautions to mitigate those risks to a reasonable extent.
The Wagon Mound No2 (1967)
The defendant’s vessel, The Wagon Mound, leaked furnace oil at a Wharf in Sydney Harbour due to the failure to close a valve.
Some cotton debris became embroiled in the oil and sparks from some welding works ignited the oil.
The fire spread rapidly causing destruction of some boats and the wharf.
Ruling: The defendants were in breach of duty. Although the likelihood of harm was low, the seriousness of harm was high and it would have cost nothing to prevent it.
“a reasonable man would not dismiss such a risk from his mind and do nothing when it was so easy to prevent it.” Lord Reid
Point of Law: If the seriousness of harm is particularly great, even though it is unlikely but the cost of reducing them is low, then a reasonable person would mitigate the risk.
Watt v Hertfordshire County Council (1954)
A woman had been involved in a traffic accident and was trapped underneath a lorry.
The fire services were called to release the woman. They needed to transport a heavy lorry jack to the scene of the accident.
The fire chief ordered the claimant and other firemen to lift the jack on to the back of a truck
There was no means for securing the jack on the truck and the firemen were instructed to hold it on the short journey.
In the event the truck braked, and the jack fell onto the claimant’s leg causing severe injuries.
Ruling: There was no breach of duty. The emergency of the situation and utility of the defendant’s conduct in saving a life outweighed the need to take precautions.
Point of Law: It is not a breach if a defendant takes reasonable risks in an emergency situation
The Bank of Montreal v The Dominion Gresham Guarantee and Casualty Company (1930)
A ship sank in the Channel as the bow doors were not sealed.
Ruling: Just because it was general practice not to seal the door did not mean that it became reasonable not to do so.
‘Neglect of duty does not by repetition cease to be neglect of duty’
Point of Law: If the defendant acted in accordance with general practise, the defendant was not negligent. However, neglect of duty does not by repetition cease to be neglect of duty. (see also the Herald of Free Enterprise in 1987)
If there are easy precautions to take, you need to take them even if the likelihood of it happening is small
true or false?
true
You can always defend yourself by saying that you are not an expert
true or false?
false
You don’t have to take precautions to prevent damage to others caused by people illegally using your property.
true or false
false
If you are in an emergency situation you can take reasonable risks
true or false
true
