Negligence Duty of care basics

Question 1

Negligence

Answer 1

In everyday terms, negligence means failure to pay attention to what ought to be done or to take the required level of care. Its everyday usage implies a state of mind (carelessness), whereas the tort of negligence is concerned with the link between the defendant’s behaviour and the risk that ought to have been foreseen.

Question 2

To succeed in a negligence action the claimant must prove three things:

Answer 2

1 That the defendant owed him a duty of care.
2 That the defendant was in breach of that duty ; and
3 That the claimant suffered damage caused by the breach of duty, which was not too
remote.

Question 3

Duty of care,

Answer 3

therefore, exists as a control device in order to determine who can bring an
action for negligence and in what circumstances.Although there were some attempts in the late nineteenth century to develop a general
test, there was no accepted test until 1932.

Question 4

Donoghue v Stevenson [1932]

Answer 4

A friend of the claimant purchased ginger beer in an opaque bottle. The claimant poured half of the
ginger beer into a glass and drank it. She then poured the remainder into the glass and saw
the remains of a decomposed snail. She claimed to have suffered illness as a result. She sued the
manufacturers of the ginger beer in negligence as she had no contract with either the retailer or the
manufacturer. The House of Lords laid down that a duty was owed by the defendant to the claimant.

Question 5

Two-stage TEST

Answer 5

A two-stage test was established. The first stage was to establish that the parties satisfied the requirements of the neighbour test. If this was done then a duty would exist unless the court found that policy dictated that there should be no duty.( Anns v Merton London Borough Council

Question 6

Junior Books v Veitchi (1983),

Answer 6

(1983), where the House of Lords seemed to go one step further. The
House appeared to suggest that what were previously good policy reasons for limiting liability
\should now not prevent an extension where the neighbour principle justified recovery. They there-
fore allowed recovery for purely economic loss when previously this had not been
permitted.

Question 7

The Caparo test

Answer 7

Was the damage caused reasonably foreseeable?
● Was there a relationship of proximity between claimant and defendant?
● Is it just and reasonable to impose a duty?

Question 8

(Reasonable foreseeability)

Answer 8

Essentially, the courts have to ask whether a reasonable person in
the defendant’s position would have foreseen the risk of damage.

Question 9

Langley v Dray foreseeable case (Reasonable foreseeability)

Answer 9

where the claimant was a policeman who was
injured in a car crash when he was chasing the defendant, who was driving a stolen car. The Court
of Appeal held that the defendant knew, or ought to have known, that he was being pursued by
the claimant, and therefore in increasing his speed he knew or should have known that the claimant
would also drive faster and so risk injury. The defendant had a duty not to create such risks and he
was in breach of that duty.

Question 10

Palsgraf v Long Island Railroad (1928).could not for see (Reasonable foreseeability)

Answer 10

The case arose from an incident when a man was boarding a train, and a member of the railway staff negligently pushed him, which caused him to drop a package he was carrying. The box contained fireworks, which exploded, and the blast knocked over some scales, several feet away. They fell on the claimant and she was injured. She sued, but
the court held that it could not reasonably be foreseen that pushing the passenger would injure
someone standing several feet away. It was reasonably foreseeable that the passenger himself might
be injured, but that did not in itself create a duty to other people.

Question 11

Haley v London Electricity Board (Reasonable foreseeability)

Answer 11

The defendants dug a trench in the street in order to do repairs. Their workmen
laid a shovel across the hole to draw pedestrians’ attention to it, but the claimant was blind, and
fell into the hole, seriously injuring himself. It was agreed in court that the precautions taken would
have been sufficient to protect a sighted person from injury, so the question was whether it was
reasonably foreseeable that a blind person might walk by and be at risk of falling in. The Court of
Appeal said that it was: the number of blind people who lived in London meant that the defendants
owed a duty to this category of people.

Question 12

(Proximity)

Answer 12

In normal language, proximity means closeness, in terms of physical position, but in law it has a
wider meaning which essentially concerns the relationship, if any, between the defendant and the
claimant.

Question 13

Watson v British Boxing Board of Control (2000),(Proximity)

Answer 13

where the claimant was the famous
professional boxer Michael Watson, who suffered severe brain damage after being injured during
a match. He sued the Board, on the basis that they were in charge of safety arrangements at professional boxing matches, and evidence showed that if they had made immediate medical attention
available at the ringside, his injuries would have been less severe. The Court of Appeal held that
there was sufficient proximity between Mr Watson and the Board to give rise to a duty of care,
because they were the only body in the UK which could license professional boxing matches, and
therefore had complete control of and responsibility for a situation which could clearly result in
harm to Mr Watson if the Board did not exercise reasonable care.

Question 14

Not enough proximity case

Answer 14

Sutradhar v Natural Environment Research Council

Question 15

(Justice and reasonableness)

Answer 15

Where justice and reasonableness are specifically referred to, it is usually because a case meets
the requirements of foreseeability and proximity, but the courts believe there is a sound public policy
reason for denying the claim.

Question 16

McFarlane v Tayside Health Board (1999).(Justice and reasonableness)

Answer 16

The
claimant had become pregnant after her partner’s vasectomy failed, and claimed for the costs of
bringing up the child. The courts denied her claim, on the basis that it was not just and reasonable
to award compensation for the birth of a healthy child – something most people, they said, would
consider a blessing.

Question 17

Mitchell v Glasgow City Council(Justice and reasonableness)

Answer 17

the claimants were the wife and daughter of a man
who had been killed by their neighbour. The neighbour rented a house from the defendant council,
and had a history of abusing the claimants’ family, including making threats to kill them. In an
attempt to solve the problem, the council called the neighbour to a meeting, and told him that if
his behaviour did not improve, they would consider evicting him. Within an hour, he had gone back
home and attacked his neighbour, inflicting injuries which proved fatal. The claimants argued that
the council were aware that he had made death threats, and had a duty of care to warn them about

the meeting, because they had reason to suspect he might attack anyone he suspected of complain-
ing about him to the council. The House of Lords said that it was not fair, just and reasonable to

impose such a duty, because that would mean that a similar duty must apply to all other landlords,
and to social workers, in similar situations. Imposing a duty to warn, and liability if warnings were
not issued, would deter landlords from taking steps to deal with anti-social behaviour by tenants,
which would not be desirable. In this case, the council had done their best to deal with the problem,
and it was better that they took those steps than did nothing at all. The situation might have been
different if the council had, by their words or behaviour, undertaken responsibility for the claimants’
safety, but, as they had not, no duty should be imposed.