Tort of Negligence

Question 1

What is negligence in tort law?

Answer 1

The tort of negligence covers losses that are suffered where there is no contractual relationship.

the tort of negligence gives rights to parties who have suffered a loss or injury due to someone’s lack of care.
It can arise in several situations e.g., in road accidents, injuries caused by poor workplace conditions or harm through negligent medical treatment.

Question 2

What is the primary objective of negligence?

Answer 2

. The primary objective of negligence is to provide compensation for the injured party.

Question 3

What does the Limitation Act 1980 state about negligence claims?

Answer 3

For negligence, the time limit is three years from the date of damage. For contract cases, it’s six years from the date of breach.

Question 4

What 3 things must the claimant prove to claim negligence

Answer 4

1. That the defendant owed the claimant a duty of care
2. That the defendant failed to perform that duty/breached that duty of care
3. That as a result the claimant suffered damage

Question 5

What is a neighbour?

Answer 5

The neighbour principle was laid down by Lord Atkin who said

‘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.’

Question 6

What is a case that relates to the neighbourhood principle?

Donoghue v Stevenson (1932)

Answer 6

Donoghue v Stevenson (1932) The “neighbour principle” is a fundamental concept in the law of negligence that originated from the landmark case of Donoghue v Stevenson in 1932.

Refers to Mrs Donoghue went to a cafe to have a ginger beer with her friend. The friend bought her a bottle of ginger beer and an ice cream i.e., as Mrs Donoghue did not purchase the ginger beer or ice cream, she did not have a contract with the retailer.

The ginger beer came in an opaque bottle so that the contents could not be seen clearly. Mrs Donoghue poured half the contents of the bottle over her ice cream and drank some from the bottle. She found a decomposed snail in the bottle and suffered personal injury as a result. She claimed against the manufacturer and her claim was successful.

The case established the neighbour principle/test

It is called the neighbour principle/test because the case established that you owe a duty of care to your neighbours.

A neighbour is someone that you can reasonably foresee would be injured by your acts or omissions.

In this case the defendant owed duty of care to the ultimate consumer

Question 7

Who has the onus in claiming negligence?

Answer 7

It is up to the injured party (the claimant) to prove the defendant failed to take reasonable care i.e., that they breached their duty of care.

The claimant must also establish that the defendant broke that duty of care. He must prove that the defendant did something that a reasonable man in the circumstances would not have done, or that the defendant failed to do something that a reasonable man in the circumstances would have done.

Question 8

What are the 8 criterias to consider to consider how reasonable the defendant shouldve acted

Answer 8

A. The likelihood of an accident happening

B. The extent of the potential harm

C. The practicability of taking precautions: risk-benefit analysis

D. Skilful claimants

E. The qualifications claimed by the defendants

F. Good Practice

G. Unhappy Outcomes

H. The burden of proof in negligence and res ipsa loquitur

Question 9

Explain the likelyhood of the accident happening and 2 cases that relates to it

Bolton v Stone (1952)
Miller v Jackson (1977)

Answer 9

The more likely it is that an accident will occur, the more care a defendant needs to take, although some risk on the part of the defendant is reasonable.

Bolton v Stone (1952) - a batsman, playing in a cricket ground run by the defendant cricket club, hit a cricket ball over a 17-foot-high fence.

The claimant, who was in the street outside the ground, was hit by the ball. A ball had been hit outside the fence six times in 30 years; therefore, the risk of it happening was foreseeable but small. It was held that the defendant club was not liable.

They had taken reasonable precautions in maintaining a 17-foot fence and the risk of a ball going over the fence was so small that the club was entitled to ignore it.

In contrast Contrast Miller v Jackson (1977) - the claimant’s house, which was close to a village cricket ground, was damaged by cricket balls. Balls were hit over the fence about eight or nine times a season, and the claimant’s property had been damaged more than once.

It was held that the defendant cricket club was liable. The risk was sufficiently large to have expected more precautions from the club.

Question 10

Explain the extent of potential harm and a case relating to this

Paris v Stepney Council (1951)

Answer 10

This principle states that the greater the risk of harm the more the defendant must do to reduce the risk of harm.

the claimant was blind in one eye and the defendant was aware of this disability. The claimant was working in the defendant’s garage under a vehicle, when a piece of metal went into his good eye and blinded him. At the time it was not standard practice to issue safety goggles.

It was held that the potential severity of damage to the claimant was greater than for other workers (i.e. the increased risk of total blindness) and, therefore, the defendant was liable for not providing him with goggles.

Question 11

What is the practicability of taking precautions - risk benefit analysis and a case that relates to it

Answer 11

The standard of care expected must strike a balance between protection for the claimant and not over-burdening the defendant. Some risk is normal, and the law is not aiming to create a risk-free environment.

Sometimes, the law requires risk assessments to be carried out before certain activities and if they are carried out properly it can show the employer has done all that is required.

Latimer v AEC (1953) – A factory suffered a flood which left the floor slippery. The defendant spread sawdust over the most used walkways (although not those less commonly used) and issued employees with warnings to be careful.

The claimant suffered an injury when he slipped in an area that had not been treated with sawdust. The claimant argued the defendant should have shut the factory completely, but it was felt that the extent of the risk and the likely injury did not justify this response. The precautions taken were reasonable in the circumstances.

These precautions was held reasonable therefore they were not liable.

Question 12

What is skilful claimants and a case relating to it?

Roles v Nathan (1963

Answer 12

If a claimant has a particular skill which means he should be aware of any danger, the defendant will not be expected to take steps to protect the claimant from that danger.

Roles v Nathan (1963) – two chimney sweeps were overcome with fumes while attempting to seal a hole in a flue. The boiler was alight but should have been switched off when the work took place. It was held the defendant was not negligent. The sweeps should have known, given their experience, that the boiler should have been extinguished before work began.

Question 13

What is the qualifications claimed by the defendants and the case relating to it?

Bolam v Friern Hospital Management Committee (1957)

Answer 13

If a defendant holds himself out as having a reasonable degree of skill and care i.e., because they hold qualifications in a certain area, they will be liable if they fail to act with that degree of skill and care.

Bolam v Friern Hospital Management Committee (1957) - the claimant sustained a fractured pelvis whilst undergoing electro-convulsive therapy (ECT) at the defendant’s hospital. He made three complaints (1)
the doctor had not warned him of the risks
(2) he had not been given relaxant drugs
(3) he had not been restrained during the treatment.

It was held that the doctor was not in breach of his duty because at the time, the way the treatment was administered, was accepted (just not by everyone).

McNair J stated: ‘A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.

Question 14

What is good practice and the case relating to it?

Thompson v Smiths Ship Repairers Ltd (1984)

Answer 14

If a defendant complies with accepted and current good practice this may be evidence of acting within the relevant duty of care.

Thompson v Smiths Ship Repairers Ltd (1984) – the defendant employer did not provide ear protectors to their employees. This was held not to amount to a failure to take reasonable care until they had been alerted to ensure the workers used them via a government circular.

Question 15

What is unhappy outcomes and a case relating to it?

Luxmoore May v Messenger May Bakers (1990)

Answer 15

Even though all reasonable care has been taken, the claimant may still suffer damage. Proof of damage to the claimant does not necessarily prove the defendant failed to take reasonable care.

Luxmoore May v Messenger May Bakers (1990) – the defendants were auctioneers who failed to correctly value two paintings owned by the claimant. As a result, the claimant lost money when they were sold. It was held the claimants had failed to prove that the defendants had acted without reasonable care i.e., a competent valuer could have made the same mistake.

Question 16

What is the burden of proof in negligence and the 3 criterias for the rule to apply

Answer 16

The burden of proof in negligence normally falls on the claimant and he must prove his claim on the balance of probabilities.

However, if the doctrine of ‘res ipsa loquitur’ (the thing speaks for itself) applies, the burden falls on the defendant to show he was not negligent.

In summary, “res ipsa loquitur” allows a claimant in a negligence case to meet their burden of proof by presenting the facts of the case that are so obvious that negligence can be inferred without direct evidence of the defendant’s act or omission.

the person who brings the lawsuit (the claimant) typically has the burden of proof. This means they need to show that:

1) the defendant must have exclusive control over the things that caused the damage.

2) the cause of the accident must be such as would not normally happen without negligence

3) the cause of the accident must be unknown

Question 17

What is a case that applies to burden of proof in negligence

Scott v London and St Katherine Docks Co [1885]

Answer 17

Scott v London and St Katherine Docks Co [1885] – the claimant, a dockworker, was injured when large heavy bags of sugar fell from the open door of the defendant’s warehouse. It was held that the doctrine of res ipsa loquitur applied, i.e., the bags of sugar could not have fallen from the door of the warehouse without fault on the part of the defendant. The defendant was liable for the claimant’s injuries.

Since it was the company’s job to manage the warehouse safely and sugar bags falling on people isn’t a normal thing, the court figured the company was at fault without the dockworker having to show a specific act of negligence.

Question 18

What is causation in fact?

Answer 18

To succeed in a negligence claim, there must be a causal link between the breach of duty by the defendant, and the damage suffered by the claimant.

The claimant must prove, on the balance of probabilities, that the defendant’s negligence caused or materially contributed to the injury or loss sustained.

i.e., but for the defendant’s behaviour, the damage would not have occurred

Question 19

What is causation in law?

Answer 19

This rule states that any damage must not be too remote which means it must be reasonably foreseeable. It follows that the defendant may not be liable for all results of the breach. This is an objective test, and the defendant is only responsible for the damage which a reasonable man would have foreseen as a likely consequence of his action.

Question 20

What are the 2 cases that relate to causation in fact

Barnett v Chelsea & Kensington Hospital Management Committee (1969)

McWilliams v Arrol (1962)

Answer 20

Successful negligence claim

Barnett v Chelsea & Kensington Hospital Management Committee (1969) – a hospital doctor failed to see and examine a patient who was vomiting (from arsenic poison). It was held the failure to see and examine a patient could be negligence (i.e. the doctor owed the patient a duty of care and breached the duty by failing to attend) but here the negligence had not caused the death of the patient. He would have died anyway.

Unsuccessful negligence claim

McWilliams v Arrol (1962) – The claimant’s husband was not wearing a safety belt when repairing a roof. Belts were normally available but on the day of the accident, the shed in which the belts were stored, was locked. The claimant’s wife argued that if the belts were available her husband would not have fallen. Her claim failed as it was shown that even if the belts had been available her husband would probably not have worn one.

Question 21

What is causation in law?

Answer 21

This rule states that any damage must not be too remote which means it must be reasonably foreseeable.

It follows that the defendant may not be liable for all results of the breach. This is an objective test, and the defendant is only responsible for the damage which a reasonable man would have foreseen as a likely consequence of his action.

Question 22

What are 2 cases that relate to causation in law?

Overseas Tankships & Engineering v Mot Dock & Engineering (The Wagon Mount No. 1) (1961)

Hughes v Lord Advocate (1963)

Jolley v London Borough of Sutton (2000)

Answer 22

Overseas Tankships & Engineering v Mot Dock & Engineering (The Wagon Mount No. 1) (1961) – The defendants spilt oil from their ship. The oil spread to a wharf where welding was taking place. The defendants found that oil would not ignite in the water so carried on welding.

Three days later, cotton waste floating in the oil, ignited from a welding spark. The claimant’s wharf was destroyed. It was held that although the fire was as a direct result of the oil spillage, it was too remote, as no one knew oil could ignite in this way, i.e., it was not reasonably foreseeable.

If the type of damage is foreseeable the defendant will be liable. It is irrelevant that the defendant might not have been able to foresee its cause or severity. i.e., this does not mean the defendant should have foreseen precisely the sequence or nature of the events.

Hughes v Lord Advocate (1963) - Post Office workers left a manhole open surrounded by paraffin lamps. While carrying the lamps, the two boys climbed into the manhole. One of the boys dropped one of the lamps, causing an explosion. Both boys suffered severe burns. It was held that the defendant was liable, as the type of harm (burning from the lamp) was foreseeable even if the exact way in which it occurred (the explosion) was not. They could have did more to make sure the site was safe.

Jolley v London Borough of Sutton (2000) - a small boat was abandoned on grounds near a block of flats owned by the Council. The boat became derelict and rotten. The Council was aware that children played on the boat, which they knew was dangerous. The claimant, aged 14, and a friend were injured when they tried to jack up the boat to repair it. It was held that the Council was liable as some harm was foreseeable, even if the precise way the harm occurred could not be foreseen.

They said that it was foreseeable that leaving an abandoned boat like that could attract children to play on or around it, which could lead to an accident. While the exact accident (the boys trying to repair the boat and it falling over) wasn’t predicted, it was enough that some kind of harm to children playing there was foreseeable.

Question 23

What is the intervening act (Novus Actus Interveniens)

Answer 23

The situation of an intervening act usually applies in circumstances where the negligence of the defendant has triggered a sequence of events leading to the harm suffered by the claimant. The intervening event may be the act of the claimant himself, or a third party over which the defendant had no control.

Sometimes an intervening act will break the chain of causation and if this is the case the defendant will not be liable for damage caused after the break.

Question 24

Give an example of case of breaking the chain of causation

Answer 24

McKew v Holland & Cubitts Ltd (1969) – the defendant negligently injured the claimant’s leg which meant it sometimes gave way. The claimant attempted to descend a steep stairway without using the handrail, and he suffered injuries when his leg could not support him. In fact, he jumped to avoid falling headfirst, and badly injured his ankle, causing a permanent disability. It was held the defendant was not liable for the injuries sustained in the fall. When the claimant descended the stairs, it was an intervening act which was not reasonably foreseeable to the defendant.

Question 25

What is the eggshell skull rule and a case that relates to it

Smith v Leech Brain & Co (1962)

Answer 25

The defendant must take his victim as he finds him. If a victim has a particular susceptibility or weakness (a thin skull or a weak heart, for example) and suffers a greater injury than a normal person, the defendant will be liable to the full extent of the claimant’s injuries.

Smith v Leech Brain & Co (1962) - The claimant’s husband was splashed on his lip with molten metal which was a reasonably foreseeable splash injury. However, his body cells were pre-cancerous at the time, and he subsequently developed the disease and died. It was held that the defendant was liable even though the only foreseeable injury was a burn.

Question 26

What is volenti non fit injuria (voluntary assumption of risk/consent) and a case that relates to it

Smith v Baker (1891)

Answer 26

A defendant will not be liable for injury to a claimant where the claimant freely consents to take the risk involved.

The defence is a complete defence; if the defendant successfully proves consent, then he will not be liable to the claimant for any damages.

Smith v Baker (1891) – The claimant was drilling holes in a quarry and had complained about the danger of the defendant’s crane moving rocks above him. He was ordered to continue working and was injured when a stone fell on him. It was held that the claimant was aware of the danger but there was no evidence that he had voluntarily consented to the risk of injury. The defence of consent failed.

Question 27

What is contributory negligence and a case that relates to it

Stone v Taffe (1974)

Answer 27

Contributory negligence means that the person who got hurt was partly to blame for what happened to them. Because they played a role in their own injury, the amount of money they can get as compensation might be reduced.

In Stone v Taffe (1974) – the claimant’s husband was killed when he catapulted himself down an unlit staircase in the defendant’s pub. The claimant’s wife and friend had made their way down safely before the deceased. It was held that damages should be reduced by 50% to take account of the lack of care taken by the deceased.