T7 Negligence

Question 1

negligence definition

Answer 1

failure to exercise reasonable care, thereby causing injury to others or damage to property.

Question 2

to establish negligence, a claimant must prove that:

Answer 2

> the defendant owed a duty of care to the claimant
the defendant, breached that duty of care by failing to confirm to the required standard of conduct
the defendant’s breach of duty caused the harm, injury or damage to the claimant

Question 3

Duty of care - the “neighbour” principle

Answer 3

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour…
Who is my neighbour?
… 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 that are called in question”.

Question 4

duty of care- 3 stages test

Answer 4

1. foreseeability- was the damage or injury to the claimant foreseeable
2. proximity- was the relationship between the claimant and the defendant sufficient proximate
3. just and reasonable- to impose a duty of care

Question 5

duty of care case example- Caparo Industries plc v Dickman Ltd [1990]

Answer 5

Caparo Industries purchased shares in Fidelity Plc with faith they would be successful as the accounts that the company stated showed the company had made a pre-tax profit of £1.3 million. However these accounts were not correct and in reality Fidelity had made a loss of £400,000. Caparo claimed Fidelity was negligent, however no duty of care was owed due to the insufficient proximity between Caparo and Fidelity. Caparo v Dickman is a key authority to cite when making submissions about proximity (which tends to be an argument raised by defendants in many negligence proceedings).
> This case is key in establishing a tripartite test for the existence of a duty of care. According to the House of Lords, in order for a duty of care to arise in negligence:

The harm must be reasonably foreseeable as a result of the Defendant’s conduct;
the parties’ relationship must be proximate; and
it must be fair, just and reasonable to impose liability.

Question 6

stage 1&2- foreseeability of harm and proximity

Answer 6

> was the damage or injury to the claimant foreseeable
was the relationship between the claimant and the defendant sufficiently proximate
neighbour principle.

case example: Home Office v Dorset Yacht Co [1970]
Several of the young offenders then stole a boat and crashed it into the yacht of the Claimant. It was found the Home Office owed a duty of care as they were in a position of control over the 3rd party who caused the damage which was considered foreseeable by the court.

Question 7

stage 3- just and reasonable

Answer 7

> to impose a duty of care
the ‘floodgates’ argument; and
would the imposition of a duty of care prevent the defendant from doing his job properly?
Public policy considerations

case example: Hill v Chief Constable of West Yorkshire [1989]
Hill v Chief Constable of West Yorkshire [1987] UKHL 12, [1989] AC 53 was a judicial decision of the House of Lords in relation to the claim by the mother of Jacqueline Hill (one of the last victims of Peter Sutcliffe, the “Yorkshire Ripper”) against West Yorkshire Police that their negligence in failing to apprehend .

Question 8

establishing a duty of care

Answer 8

Duty of Care –
The defendant must owe the claimant a duty of care
E.g. –
> motorists owe a duty of care to other road users
> doctors owe a duty to their patients
> employers owe a duty of care to their employees.

Question 9

examples of establishing a duty of care

Answer 9

1) Statutory duty of care - E.g. Health & Safety at Work Act 1974, Occupiers Liability Act 1954

2) Common Law duty of care (Case law) – E.g. Nettleship v Weston [1971]

New/novel case…

3) Caparo 3 stage test (Caparo Industries v Dickman plc [1990])

Question 10

breach

Answer 10

Once a duty of care has been established, the courts must consider whether there has been a BREACH of that duty.

An Objective Standard:
If the reasonable person would not foresee injury or damage as a consequence of an action, then the defendant will not be negligent in failing to take precautions.

case example: Walker v Northumberland County Council [1995]
acts
Mr Walker was a social worker employed by the defendant who had a heavy, emotionally demanding caseload and suffered a mental breakdown in 1986. Upon his return to work, he repeatedly requested assistance, but the defendant provided no additional support and he suffered a second breakdown in 1987. He was dismissed due to ill health and brought an action against the defendant for breaching their duty of care to take steps to ensure he had a manageable workload.

Issues
The defendant employer is under a duty of care to provide a safe system of work to its employees per Wilsons & Clyde Coal Co Ltd v English [1938] AC 57. Mr Walker argued that the duty of care extended to taking reasonable steps to avoid the risk of exposing him to a workload which was detrimental to his mental health. The defendants argued that on policy grounds and due to a general lack of resources within the county council, it was inappropriate for the court to evaluate the reasonableness of their operational allocation of resources.

Decision / Outcome
There was no logical reason to exclude the risk of psychiatric injury from an employer’s duty of care. As the first breakdown was not reasonably foreseeable, the defendants were not in breach for failing to take steps to avoid it. The second breakdown, however, was foreseeable, if Mr Walker was not offered additional support. Regard should be had to the resources available to the defendant but it was right and proper for the court to evaluate their conduct, and given the gravity of the illness and the level of risk, the defendants were in breach of duty for failing to take reasonable steps to avoid it.

Question 11

factors to be weighed in establishing breach

Answer 11

The court will consider a number of factors when determining whether the defendant’s behaviour meets that expected of a reasonable man….
1) magnitude of the harm and practicality of precautions
2) special characteristics of the claimant and of the defendant
3) inexperience
4) the social utility of the defendants action

Question 12

professionals

Answer 12

Professional Person:
The required standard of care: the defendant must show the degree of competence usually to be expected of an ordinary professional skilled in that profession.
case example: Bolam v Friern Barnet Hospital Management Committee [1957]
The claimant was undergoing electro convulsive therapy as treatment for his mental illness. The doctor did not give any relaxant drugs and the claimant suffered a serious fracture. There was divided opinion amongst professionals as to whether relaxant drugs should be given. If they are given there is a very small risk of death, if they are not given there is a small risk of fractures. The claimant argued that the doctor was in breach of duty by not using the relaxant drug.

Held:
The doctor was not in breach of duty. The House of Lords formulated the Bolam test:

Question 13

proviso definition

Answer 13

– where conflicting medical opinion exists
the practice adopted must be based on logical and defensible grounds
i.e. can it “withstand logical analysis”

Question 14

Q: what is tort?

Answer 14

civil wrong which interferes/infringes upon another’s rights

Question 15

Q: what is the aim of tort damages?

Answer 15

restore injured party to pre-tort position

Question 16

causation in law and remoteness of damage

Answer 16

> the defendants breach CAUSED the claimant’s loss=
1) factual causation- the ‘but for’ test
“would the claimant have incurred the damage “but for” the defendant’s negligence?”

case example: Barnett v Chelsea & Kensington Hospital Management Committee [1969]

Mr Barnett went to hospital complaining of severe stomach pains and vomiting. He was seen by a nurse who telephoned the doctor on duty. The doctor told her to send him home and contact his GP in the morning. Mr Barnett died five hours later from arsenic poisoning. Had the doctor examined Mr Barnett at the time there would have been nothing the doctor could have done to save him.

Held:
The hospital was not liable as the doctor’s failure to examine the patient did not cause his death.

Introduced the ‘but for’ test ie would the result have occurred but for the act or omission of the defendant? If yes, the defendant is not liable.

2) legal causation- the remoteness of damage
> damage which is not reasonably foreseeable is TOO REMOTE from the breach and therefore not recoverable

case example: Overseas tankship Ltd. v. Morts Dock & Engineering Co. (The Wagon Mound (No. 1) [1961]
Facts
The crew members of the Overseas Tankship (UK) Ltd were working on a ship, when they failed to turn off one of the furnace taps. This caused oil to leak from the ship into the Sydney Harbour. Morts Dock & Engineering Co (The Wagon Mound) owned the wharf, which they used to perform repairs on other ships. The leaking oil on the water surface drifted to the site where Morts were welding metal. A supervisor enquired to find out whether the oil was flammable, which he was assured that it was not. However, a spark from welding and mixed with debris, caught fire from the spilt oil and this caused a fire to spread rapidly. This caused significant damage to Mort’s wharf.

Issues
The issue in this case was whether the crew could be liable for the damage to the wharf that was caused by the fire. In addition, would this also be the case even if it was unforeseeable, but a result of a negligent act.

Decision/Outcome
The court held that Overseas Tankship (UK) Ltd could not be held liable to pay compensation for the damage to the wharf. This case disapproved the direct consequence test in Re Polemis and established the test of remoteness of damage. This asks whether the damage would be reasonably foreseeable. In this case, the damage caused to the wharf by the fire and the furnace oil being set alight could not be foreseen by a reasonable person.

Question 17

civil liability

Answer 17

Once it has been established that the damage was a reasonably foreseeable consequence of the defendant’s breach, the defendant will be liable for all the damage of that type, no matter what the extent is.
case example: Smith v Leech Brain & Co [1962]
Facts
The complainant was employed as a galvaniser of steel for the defendants, Leech Brain & Co Ltd. He had been working and operating a machine in the workplace, when a piece of molten metal burnt his lip, after he stepped out from behind the protective shield. Although the burn was treated, he developed cancer and died three years later. The complainant had a pre-cancerous condition, before the burn had taken place. When he died, his widow brought a claim against Leech Brain & Co Ltd under the Fatal Accidents Act.

Issues
The issues in this case concerned whether the employers could be liable for the full extent of the burn and cancer that had developed as a result or would a person’s predispositions matter in the award of damages.

Decision/Outcome
The defendants were held to be negligent and liable for damages to the complainant. The complainant burnt his lip as a result of the defendant’s negligence in the workplace. The employers are liable for all of the consequences of their negligence; thus, liable for the employee’s death. His predisposition to cancer did not matter, nor did the results of the injury. The question of liability was whether the defendant could reasonable foresee the injury. Lord Parker stated that the eggshell skull rule and taking the victim as you find them has always been the established law and this was not affected by the ruling in the Wagon Mound case.

the “ egg-shell skull” rule–> the defendant must take his victim as he finds him