Tort of Negligence - Week 8 Flashcards
What’s tort of negligence?
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
How does it arise?
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
What is liability generally based on?
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
Who does tort of negligence give rights to
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
Law of Torts v Contract Law
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
Negligent Liability
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
Duty Of Care - Donoghue v Stevenson (1932)
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
What did this case establish?
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
Who was the neighbour principle laid down by?
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.
Whos the onus?
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
Breach of Duty
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
Is the test objective or subjective?
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?
Several Criteria to consider
- 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
Likelihood Of An Accident Happening
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
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
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
Miller v Jackson (1977) - Contrast Case
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
Extent of The Potential Harm
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
Paris v Stepney Council (1951)
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
Practicability of Taking Precautions - Risk-Benefit Analysis
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
Latimer v AEC (1953)
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
Skilful Claimants
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
Roles v Nathan (1963)
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
Qualifications Claimed By The Defendants
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
Bolam v Friern Hospital Management Committee (1957)
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
What did McNair J say?
‘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.’
Phillips v William Whitely (1938)
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
Standard of care
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
Good Practice
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)
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
Unhappy Outcomes
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
Luxmoore May v Messenger May Bakers (1990)
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
Burden of Proof in Negligence and ‘Res Ipsa Loquitur’ (thing speaks for itself)
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
What conditions must be present for the rule to apply?
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
Scott v London and St Katherine Docks Co (1885)
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
When can doctrine be used?
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.
Consequential Loss or Damage
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
What 2 factors/tests are necessary
Causation in fact -’but for test’ → did defendant cause claimants damage?
Causation in law - ‘remoteness test’ → is the loss/damage reasonably foreseeable?
Causation ‘in fact’ - the ‘but for’ test
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.
Barnett v Chelsea & Kensington Hospital Management Committee (1969)
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
McWilliams v Arrol (1962)
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.
Causation in Law - Remoteness of Damage
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
Overseas Tankships & Engineering v Mot Dock & Engineering (Wagon Mount No. 1) 1961
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
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 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.
Jolley v London Borough of Sutton (2000) - Principle Confirmed
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
Intervening Acts (Novus Actus Interveniens)
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
Case Study - Zac & Yvonne
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
McKew v Holland & Cubitts Ltd (1969)
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
Eggshell Skull Rule aka Thin Skull Rule
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
Smith v Leech Brain & Co (1962)
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
Defences - Volenti Non Fit Injuria (Voluntary Assumptions of Risk/Consent)
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
Is the test subjective?
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
Smith v Baker (1891)
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
Contributory Negligence - Stone v Taffe (1974)
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
