Tort of Negligence - Week 8

Question 1

What’s tort of negligence?

Answer 1

Tort of negligence covers losses that are suffered where there’s no contractual relationship

Covered the duties owed by one party to another due to their contractual relationship

Question 2

How does it arise?

Answer 2

It arises where one party owes another a duty of care and the parties may not know each other

For example, A is crossing the road at a pedestrian crossing.
B is the driver and is speeding and unable to stop at the lights. A suffers injuries

There’s no contractual relationship between the parties, they haven’t come to any agreements but the law implies that A and B owe each other a duty not to be negligent
Actions of B have caused injury to A

Question 3

What is liability generally based on?

Answer 3

Liability is generally based on fault. Primary objective of negligence is to provide compensation for the injured party

Suffering a loss doesn’t mean the law will provide a remedy; the claimant must show the person who caused the injury owed them a duty of care and that their actions caused the loss

Different from obligations in a contract where the parties voluntarily agree to be bound

Question 4

Who does tort of negligence give rights to

Answer 4

The tort of negligence gives rights to parties who have suffered a loss or injury due to someone’s lack of care

Can arise in several situations, for example, in road accidents - injuries caused by poor workplace conditions or harm through negligent medical treatment

Question 5

Law of Torts v Contract Law

Answer 5

Under the Limitation Act 1980, the limit for burning a court action in the Law of Torts is either 6 years from the date if damage or when the claim is based on certain torts such as negligence or nuisance, the time limit for burning an action is 3 years
The time limit in contract cases is 6 years from the date if breach

In the law of torts and contract law, an award of damages (compensation) is the usually remedy for a party who has suffered loss, although the method of calculation of loss may differ

Question 6

Negligent Liability

Answer 6

3 elements to negligence claim and the claimant must prove the following;

1) The defendant owed the claimant a duty of care

2) The defendant failed to perform that duty/breached that duty of care

3) As a result, the claimant suffered damage

Question 7

Duty Of Care - Donoghue v Stevenson (1932)

Answer 7

General principle called the neighbour principle was established to determine whether a duty of care was owed for loss suffered due to negligence

Mrs Donoghue went to a cafe to have a ginger beer with her friends

The friend bought her a bottle of ginger beer and an ice cream and since Mrs Donoghue didn’t purchase the ginger beer or ice cream, she didn’t have a contract with the retailer

The ginger beer came in an opaque bottle so the contents couldn’t 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

Question 8

What did this case establish?

Answer 8

This case established the law of negligence and the neighbour principle

It’s called the neighbour principle 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 the case, the defendant could reasonably foresee that someone, other than the purchaser would drink the ginger beer and therefore be owed a duty of care to the ultimate consumer

Question 9

Who was the neighbour principle laid down by?

Answer 9

Lord Atkin who said:

You must take reasonable care to avoid acts and omissions which you can reasonably foresee would be likely to injure your neighbour. 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 10

Whos the onus?

Answer 10

A person isn’t automatically liable for every negligent act that he or she commits - a duty isn’t owed to the world at large. The onus is on the claimant to establish that the defendant owes the claimant a duty of care

Question 11

Breach of Duty

Answer 11

To succeed in a claim for negligence, the claimant must establish that the defendant owed him a duty of care but this is only the first stage

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 wouldn’t have done or the defendant failed to do something that a reasonable man in the circumstances would’ve done

It’s up to the injured party (claimant) to prove the defendant failed to take reasonable care, they breached their duty of care

Question 12

Is the test objective or subjective?

Answer 12

The test is objective and any behaviour is measured objectively against the reasonable man

What would the reasonable man have done, how would the reasonable man have acted?

Question 13

Several Criteria to consider

Answer 13

• Likelihood of the accident happening
• Extent of the potential harm
• Practicability of taking precautions - risk benefit analysis
• Skilful claimants
• Qualifications claimed by the defendants
• Good practice
• Unhappy outcomes
• Burden of proof in negligence and res ipsa loquitur

Question 14

Likelihood Of An Accident Happening

Answer 14

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

Question 15

Bolton v Stone (1952)

Answer 15

A batsman playing in a cricket ground run by the defendant cricket club hit a cricket ball over a 17 foot high fence

Claimant who was in the street outside the ground was hit by the ball

A ball had been hit outside the fence 6 times in 30 years so the risk of it happening was foreseeable but small
It was held that the defendant club wasn’t 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

Question 16

Miller v Jackson (1977) - Contrast Case

Answer 16

Claimants house which was close to a village cricket ground was damaged by cricket balls

Balls were hit over the fence about 8 or 9 times a season and the claimant’s property had been damaged more than once

Held that the defendant cricket club was liable and the risk was large to have expected more precautions from the club

Question 17

Extent of The Potential Harm

Answer 17

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

In cases where the risk of injury to the claimant is small but the gravity of the injury if it occurs is great, then it’s more likely that a duty of care will be broken if precautions aren’t taken, provided that the injury is foreseeable

Question 18

Paris v Stepney Council (1951)

Answer 18

Claimant was blind in one eye and defendant was aware of this disability

Claimant was working in the defendants garage under a vehicle when a piece of metal went into his good eye and blinded him

At the time, it wasn’t standard practice to issue safety goggles

Held that the potential severity of damage to the claimant was greater than for other workers (increased risk of total blindness) and the defendant was liable for not providing him with goggles

Question 19

Practicability of Taking Precautions - Risk-Benefit Analysis

Answer 19

Standard of care expected must strike a balance between protection for the claimant and not over burdening the defendant
Some risk is normal, the law isn’t aiming to create a risk free environment

When considering what’s reasonable the court may consider the nature and size of the business. Cost may not be a factor if the risk of harm is great

The law requires risk assessments to be carried out before certain activities and if they’re carried out properly it can show the employer has done all that’s required

Question 20

Latimer v AEC (1953)

Answer 20

A factory suffered a flood which left the floor slippery

Defendant spread sawdust over the most used walkways (not less commonly used) and issued employees with warnings to be careful

Claimant suffered an injury when he slipped in an area that hadn’t been treated with sawdust

Claimant argued defendant should’ve shut the factory completely but it was felt that the extent of the risk and the likely injury didn’t justify the response
Precautions taken were reasonable in the circumstances

Question 21

Skilful Claimants

Answer 21

If a claimant has a particular skill which means he should be aware of any danger, the defendant won’t be expected to take steps to protect the climate from that danger

Question 22

Roles v Nathan (1963)

Answer 22

Two chimney sweeps were overcome with fumes while attempting to seal a hole in a file

The boiler was alright but should’ve been switched off when the work took place
It was held the defendant wasn’t negligent

Sweeps should’ve known, given their experience, the boiler should’ve been extinguished before the work began

Question 23

Qualifications Claimed By The Defendants

Answer 23

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

Question 24

Bolam v Friern Hospital Management Committee (1957)

Answer 24

The claimant sustained a fractured pelvis while undergoing electroconvulsive therapy at defendants hospital

Made 3 complaints the doctor hadn’t warned him of the risks he hadn’t been given relaxant drugs

Hadn’t been restrained during the treatment

Opinion was divided amongst doctors as to the best way to administer this treatment

Was held that the doctor wasn’t in breach of his duty because at the time, the way the treatment was administered was accepted

Question 25

What did McNair J say?

Answer 25

‘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. Putting it another way round, a doctor is not negligent if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view.’

Question 26

Phillips v William Whitely (1938)

Answer 26

Claimant contracted a disease after having her ears pierced by the defendant

Was held that the defendant wasn’t liable because the standard of care required by the defendant was that of a skilled and competent ear piercer, not a medical practitioner

Defendant had met the standard required and wasn’t negligent as he’d acted in accordance with the level of care and skill which could be expected from a person with his training

Question 27

Standard of care

Answer 27

Standard of care expected of professional persons is the standard that a reasonably competent person in that profession would show
Defendant is judged on the level of qualifications claimed, not on the amount of experience

A defendant - just qualified - and starting in a job will be expected to show the same level of care as a competent person holding that post

Question 28

Good Practice

Answer 28

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

Question 29

Thompson v Smiths Ship Repairers Ltd (1984)

Answer 29

Defendant employer didn’t provide ear protectors to their employees

Was held not to amount to a failure to take reasonable care until they’d been altered to ensure the workers used them via a government chair

Question 30

Unhappy Outcomes

Answer 30

Even though all reasonable care has been taken, the claimant may still suffer damages

Proof of damage to the claimant does not prove the defendant failed to take reasonable care

Question 31

Luxmoore May v Messenger May Bakers (1990)

Answer 31

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

Was held the claimants had failed to prove that the defendants had acted without reasonable care → competent valuer would have made the same mistake

Question 32

Burden of Proof in Negligence and ‘Res Ipsa Loquitur’ (thing speaks for itself)

Answer 32

Burden of proof in negligence falls on the claimant and he must prove his claim on the balance of probabilities

If doctrine of res ipsa loquitur applies, the burden falls on the defendant to show he wasn’t negligent

Negligence can be inferred from the facts and the burden of proof transfers from the claimant to the defendant and the defendant must explain how the accident happened without negligence on his part

Question 33

What conditions must be present for the rule to apply?

Answer 33

Defendant must have exclusive control over the things that caused the damage

Cause of the accident must be such as wouldn’t normally happen without negligence

Cause of accident must be unknown

Question 34

Scott v London and St Katherine Docks Co (1885)

Answer 34

Claimant, a dockworker, was injured when large heavy bags of sugar fell from the open door of the defendants warehouse

Was held that the doctrine of res ipsa loquitur applied → the bags of sugar couldn’t have fallen from the doors of the warehouse without fault on the part of the defendant

The defendant was liable for the claimant’s injuries

Question 35

When can doctrine be used?

Answer 35

Doctrine can be used when the evidence seems to clearly suggest that the defendant must have breached his duty of care for the injury to occur, even though the claimant can’t prove exactly how the injury was caused

As the principle relies on the absence of knowledge of the exact facts, it won’t apply if the facts of what happened are known or can be discovered.

Question 36

Consequential Loss or Damage

Answer 36

For a claimant to succeed in a negligence claim, he mustn’t oly show that the defendant owed him a duty of care and breached that duty of care but must also prove that the damage or loss he suffered was as a result of the defendant’s breach

Question 37

What 2 factors/tests are necessary

Answer 37

Causation in fact -’but for test’ → did defendant cause claimants damage?

Causation in law - ‘remoteness test’ → is the loss/damage reasonably foreseeable?

Question 38

Causation ‘in fact’ - the ‘but for’ test

Answer 38

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

Claimant must prove that the defendants negligence caused or materially contributed to the injury or loss sustained
But for the defendants’ behaviour, the damage wouldn’t have occurred.

Question 39

Barnett v Chelsea & Kensington Hospital Management Committee (1969)

Answer 39

A hospital doctor failed to see and examine a patient who was vomiting (from arsenic poison)

Was held the failure to see and examine a patient could be negligence
The doctor owed the patient a duty of care and breached the duty by failing to attend

Negligence hadn’t caused the death of the patient, he would’ve died anyways

Question 40

McWilliams v Arrol (1962)

Answer 40

Claimants husband wasn’t 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

Claimants wife argued that if the belts were available her husband wouldn’t have fallen

Her claim failed as it was shown that even if the belts had been available, her husband probably wouldn’t have worn one.

Question 41

Causation in Law - Remoteness of Damage

Answer 41

This rule states that any damage musn’t 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 defendants only responsible for the damage which a reasonable man would have foreseen as a likely consequence of his action

Question 42

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

Answer 42

Defendants spilt oil from their ship
The oil spread to a wharf where welding was taking place

Defendants found that oil wouldn’t ignite in the water so carried on welding
3 days later, cotton waste floating in the oil, ignited from a welding spike

Claimants wharf was destroyed
Was held that although the fire was as a direct result of the oil spillage, it was too remote as no one knew the oil could ignite in this way → wasn’t reasonably foreseeable

If the type of damage is foreseeable, the defendant will be liable
It’s irrelevant that the defendant might not have been able to foresee it’s cause of severity

Doesn’t mean the defendant should have foreseen precisely the sequence or nature of the events

Question 43

Hughes v Lord Advocate (1963)

Answer 43

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 maps causing an explosion

Both boys suffered severe burns
Was held that the defendant was liable, as the type of harm (burning from lamp) was foreseeable even if the exact way in which it occurred (the explosion) wasn’t.

Question 44

Jolley v London Borough of Sutton (2000) - Principle Confirmed

Answer 44

Small boat was abandoned on grounds near a block of flats owned by the council

The boat became derelict and rotten
Council was aware that children played on the boat, which they knew was dangerous

The claimant aged 14 and a friend was injured when they tried to jack up the boat to repair it

Was held that the council was liable as some harm was foreseeable even if the precise way the harm occurred couldn’t be foreseen

Question 45

Intervening Acts (Novus Actus Interveniens)

Answer 45

Situation of an intervening act usually applies in circumstances where the negligence of the defendant has triggered a sequence if events leading to the harm suffered by the claimant

The intervening events may be the act of the claimant himself or a third party over which the defendant had no control
The court must decide whether the new act is sufficiently serious to be the cause of the damage rather than the original act

Question 46

Case Study - Zac & Yvonne

Answer 46

Zac negligently crashes into the back of Yvonne’s car

Yvonne who’s bruised and disorientated by the crash, steps out of her car without checking the traffic and is run over by a van being driver at a great speed in opposite direction

Yvonne’s legs are damaged
At the hospital, the surgeon is negligent and Yvonne eventually has her legs amputated

Zac’s initial negligence triggered the sequence of events but the court will decide if the intervening actions of the van driver and doctor broke the chain of caucasian between Zac’s original negligence and the final loss suffered by Yvonne

Sometimes an intervening act will break the chain of causation and if this is the case, the defendant won’t be liable for damaged caused after the break

Question 47

McKew v Holland & Cubitts Ltd (1969)

Answer 47

Defendant negligently injured the claimants ;eg which mean to sometimes gave way

Claimant attempted to descend a steep stairway without using the handrail and suffered injuries when his leg couldn’t support him

He jumped to avoid falling headfirst and badly injured his ankle, causing a permanent disability

Was held the defendant is not liable for the injuries sustained in the fall
When the claimant descended the stairs, it was an intervening act which wasn’t reasonably foreseeable to the defendant

Question 48

Eggshell Skull Rule aka Thin Skull Rule

Answer 48

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) and suffers a greater injury than a normal person, the defendant will be liable to the full extent of the claimants injuries

Question 49

Smith v Leech Brain & Co (1962)

Answer 49

Claimants husband was splashed on his lip with molten metal which was a reasonably foreseeable splash injury

His body cells were pre cancerous at the time and he developed the disease and died

Was held that the defendant was liable even though the only foreseeable injury was a burn

Question 50

Defences - Volenti Non Fit Injuria (Voluntary Assumptions of Risk/Consent)

Answer 50

Volenti non fit injuria = no wrong is done to one who consents

A defendant won’t be liable for injury to a claimant where the claimant freely consented to take the risk involved

Defence is a complete defence - if the defendant successfully proves consent, then he won’t be liable to the claimant for any damages

For consent to be valid defence, the claimant must understand the risk involved and freely agree to the consequences of the risk

Question 51

Is the test subjective?

Answer 51

The test is subjective, meaning the claimant himself must know of the risk and voluntarily accept it. If the claimant has no choice but to accept the risk, the defence will fail

Question 52

Smith v Baker (1891)

Answer 52

Claimant was drilling holes in a quarry and had complained about the danger of the defendants 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’d voluntarily consented to the risk of injury

Defence of consent failed

Question 53

Contributory Negligence - Stone v Taffe (1974)

Answer 53

Claimants husband was killed when he catapulted himself down an unlit staircase in the defendants pub

Claimants wife and friend had made their way down safety before the deceased

Was held that damages should be reduced by 50% to take account of the lack of care taken by the deceased