Tort of Negligence Flashcards
The tort of negligence 3 steps
- Does the defendant have a duty of care to the claimant?
- Has the defendant fallen below the reasonable standard of care?
- Is there a causal link between the damage/loss and the defendant’s breach of duty?
There is a claim in negligence (but remember to consider defences!)
1st Element: Duty of Care
What case law? (What happened and what did it establish?
Principle and what does it state?
What is the three stage test for establishing duty of care and what is the relevant case law for each one?
What is found?
The courts have restricted claims using the ‘proximity’ requirement and/or the fair, ‘just and reasonable requirement’ in three areas:
Donoghue v Stevenson (1932, HL)
Claimant became ill after drinking ginger beer with a snail at the bottom. Her friend had bought the drink, so had no contract with the café.
Established that every person owed a duty of care to his ‘neighbour’ who was somebody that a person could reasonably foresee would be injured by his acts or omissions.
Lord Atkin’s neighbour principle
States that one must take reasonable care to avoid acts or omissions that could reasonably be foreseen as likely to injure one’s neighbour
Three stage test for establishing ‘duty of care’:
- Was the harm or loss caused reasonably foreseeable?
(Margereson v JW Roberts (1996) pulmonary illness - asbestos)
The court ruled that the defendant, owner of an asbestos factory, should have foreseen the risk of pulmonary injury due to asbestos dust exposure. This ruling held the company liable
- Was there a sufficient relationship of proximity between the claimant and the defendant for a duty to be imposed?
Proximity expressed in terms of relationship between the defendant, and the activity which caused harm to the claimant
West Bromwich Football Club Ltd. v El-Safty (2006) – football club- doctor proximity
The court ruled that Mr. El-Safty, who treated a player from West Bromwich Albion Football Club, did not owe a duty of care to the club and no contract existed between them¹. This reinforced the principle that a doctor’s primary duty of care is to the patient, not the employer
- In all circumstances is it fair, just, and reasonable that the law should impose a duty on the defendant?
It is usually referred by the courts when there are public policy reasons for denying a claim
(Robinson v Chief Constable of West Yorkshire Police (2018)
This case clarified the police’s liability to the public. An elderly woman was injured by police officers during an arrest attempt. The court ruled that the police owed her a duty of care, applying ordinary negligence principles, and rejected any special police immunity
The three Caparo factors very often overlap. They are ‘facets of the same thing’.
The more foreseeable the harm is, the more likely it is that proximity will be found between the parties, and the closer the proximity and the more foreseeable the harm, the more likely it is that imposing a duty will be considered just and reasonable.
The courts have restricted claims using the ‘proximity’ requirement and/or the fair, ‘just and reasonable requirement’ in three areas:
- Claims against public bodies – particularly the police
- Claims for psychiatric injury
- Claims for economic loss
2nd Element: Breach of Duty
What is a breach (broken down precisely)?
What amounts to a failure to discharge these obligations? (1 with case law)
What are exceptions to the standard of the “reasonable person” (2 with relevant case law)
What determines whether the defendant has fallen short of this standard? (5 with relevant case law)
If the court finds that the defendant owed the claimant a duty of care, the next question is whether the defendant breached that duty.
A breach is a failure on the part of the defendant to “discharge” their obligations under the duty.
What are the defendant’s obligations?
- The duty is to take “reasonable care”
What amounts to a failure to discharge these obligations?
- There must be a failure to take “reasonable care”.
The standard of “reasonable care” is what the standards of the “reasonable person” in the defendant’s position which sets an objective standard
No allowance is made for the defendant’s particular level of experience/ resources/ competence (Nettleship v Weston (1971)
a learner driver crashed during a lesson, injuring the instructor. The court ruled that learner drivers should meet the same standard of care as qualified drivers.
Exceptions to standard of the “reasonable person”:
- children depending on age
- professional depending on profession
Orchard v Lee
a school dinner lady was injured when a 13-year-old boy ran into her while playing tag. She sued for negligence. The court ruled that the boy, behaving as a typical child of his age, had not breached his duty of care
Phillips v Whiteley Ltd
a woman’s ears were pierced by a jeweller, leading to an infection. The court ruled that the jeweller was not liable as they were not expected to meet the standard of a surgeon. The standard of care was that of a jeweller performing such work
What determines whether the defendant has fallen short of this standard?
The courts may use a form of “cost-benefit analysis”
- Would preventing a foreseeable risk of harm have been less costly than letting it happen?
- If so, the defendant probably should have prevented it.
What factors are relevant to this calculation?
- The probability of harm (Bolton v Stone)
a cricket ball from a nearby field injured a woman outside her home. The court ruled the cricket club was not negligent, considering the low likelihood of harm
- The potential seriousness of the damage (Paris v Stepney Borough Council)
a one-eyed garage worker was blinded in his remaining eye due to a workplace accident. The court ruled that the employer was negligent for not providing safety goggles, considering the worker’s known vulnerability
- The practicality/cost of protection – cost of avoiding harm is not disproportionate- easier to take precautions (Latimer v AEC Ltd)
factory worker slipped on a flooded floor, injuring his ankle. The court ruled that the employer, AEC Ltd, had taken all reasonable precautions to minimise risk, including mopping up and spreading sawdust, and was not negligent
- The potential benefits of the risk - reasonable risks during emergency situation (Watt v Hertfordshire County Council)
a fireman was injured when a heavy jack fell on him during an emergency rescue. The court ruled the council was not negligent, considering the urgency of the situation, the high social utility of saving a life, and the relatively low risk of injury
- Common practice in the relevant field.
2nd Element: Breach of Duty - The standard of reasonableness (summary)
Factors in favour of the defendant (5)
Factors in favour of the claimant (5)
Proving the Breach of Duty - How do you prove that? (1 with case law)
Factors in favour of the defendant (5)
- The damage was not very likely to happen
- The damages was not very likely to be serious
- It would have been difficult and/or expensive to take precautions against the risk
- The precautions taken were in line with common practice
- The risky activity has social benefits
Factors in favour of the claimant (5)
- The damage was very likely to happen
- The damages were likely to be serious
- Taking precautions against the risk would have been simple and inexpensive
- It was common practice to take precautions against the risk
- There were no social benefits associated with the risky activity
C must prove ‘on the balance of probabilities’ (civil claim) that the defendant breached their duty of care;
How do you prove that?
- Section 11 of the Civil Evidence Act 1968 – A conviction for a criminal offence is proof that the offence is committed, therefore, the claimant may rely on the defendant’s conviction for careless driving in a road accident.
- Res ipsa loquitur’ - the thing speaks for itself. Ward v Tesco Stores (1976) – yoghurt spilled on the floor of the store)
the court applied the doctrine of res ipsa loquitur, ruling that the accident was more likely due to negligence than anything else. The burden of proof was on Tesco to show the spill hadn’t been there long enough to be dealt with
3rd Element: Causation
What are the 3 aspects? (relevant case law)
If the claimant can prove breach of duty, the court will then ask whether the breach caused the claimant’s loss or damage.
Causation has three aspects:
- Factual causation: Did the defendant’s breach of their duty of care cause the claimant’s loss or injury as a matter of fact?
- Legal causation: Even if the defendant’s breach of their duty of care caused the claimant’s loss or injury as a matter of fact, should it be treated as the cause as a matter of law?
- Remoteness of damage: The type of damage must have been foreseeable.
Factual Causation
The courts usually apply the “but for” test:
- “But for” the defendant’s act, would the claimant have suffered the harm?
If the answer is “no”, causation is established. - This test may not always be conclusive, as when the defendant fails to provide a warning of a risk and there is no certainty as to how the claimant would have responded (Chester v Afshar (2004)
The doctor had failed to inform her of a small risk associated with the surgery. The court ruled that even though the patient might have consented to the surgery at some point, the doctor was liable for not informing her of the risks
Multiple causes: When there is more than one possible cause of injury, causation can be proved if the claimant can show that the defendant’s negligence materially increased the risk of injury occurring (McGhee v National Coal Board)
worker contracted dermatitis after his employer failed to provide washing facilities, causing prolonged exposure to brick dust. The court ruled that the employer’s negligence materially increased the risk of the worker developing dermatitis, satisfying causation
Legal Causation
- If factual causation is established, the court will then consider whether the defendant was the “legal” cause of the claimant’s harm.
- What is relevant here are so-called “intervening acts” or a “novus actus interveniens”
These are treated as breaking the chain of causation, absolving the defendant of liability.
These fall into three categories:
- An unforeseeable act of a third party
- An act of the claimant
- An act of God
Remoteness of Damage
Finally, the loss or damage that the claimant has suffered must not be too “remote”:
The courts have imposed this additional requirement somewhat artificially as an additional control on potential liability in negligence
It is designed to call a halt to liability at a sensible point
The test was specified in The Wagon Mound (no.1) (1961)
It involved an oil spill from a ship, leading to a fire when the oil was ignited. The court ruled that the defendant was not liable for damages that were not reasonably foreseeable
Remoteness of Damage and the Eggshell Skull Principle
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
an employee suffered a burn that led to cancer due to a pre-existing condition. The court applied the “eggshell skull” rule, holding the employer liable for all consequences of their negligence, regardless of the victim’s vulnerability
Categorisation of defences
Even though a claimant may be able to prove all the necessary requirements of a tort, he will be unsuccessful in his action or have his damages reduced if the defendant is successful in providing a defence.
The burden of providing a defence is on the defendant.
Partial defences: reduce the extent of the defendant’s liability;
Complete defences: extinguish completely the defendant’s liability
Three general defences in the Tort of Negligence:
- Contributory negligence;
- Consent (Volenti non fit injuria);
- Illegality (ex turpi causa)
Contributory negligence
What type of defence is it?
How do you take advantage of this defence?
What happens if this is successfully raised?
Relevant case law?
- This is a partial defence
Regulated by the Law Reform (Contributory Negligence) Act 1945
- To take advantage of this defence, the defendant has to establish that the claimant did not take reasonable care, and contributed to his own loss
If successfully raised, the amount of compensation will be reduced to ‘such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage’
Froom v Butcher – failure to wear a seatbelt – damages reduced by 20 per cent
Consent
What type of defence is it?
How do you take advantage of this defence?
Relevant case law? (2)
This is a full defence;
- Volenti non fit injuria – no wrong is done to one who consents
- Applies where the claimant has in some way consented to what was done by the defendant;
The test of consent is objective: whether the behaviour of the defendant was such that it was reasonable to think that there was consent
(Smith v Baker (1891) – defence of consent failed – drilling holes in a quarry –injured by the stone above
ICI v Shatwell (1965) – The court ruled that the employer could rely on the defence of volenti non fit injuria (consent to the risk) as the brothers knowingly disobeyed instructions and mandatory precautions
Illegality
What type of defence?
What does it mean?
Case law?
This is a full defence;
The basic reason for this defence is public policy: a person committing a crime should not sue for damages if they were injured as a result of doing so
(Ashton v Turner (1980) –. The court dismissed the claim, stating that one participant in a crime does not owe a duty of care to another
Illegality and public policy:
Revill v Newbery (1996) – shotgun-intruder- disproportionate but the trespasser’s damages were reduced due to his contributory negligence
