Tort Law: Negligence

Liability Liability arising in contract Liability is voluntarily undertaken, because something is given in return (consideration) i.e. both sides have made a bargain , liabilities & rights are exchanged Liability arising in tort Liability is not voluntarily undertaken. Liability is imposed by courts / Parliament (through statutes) who have decided that certain types of behaviour give rise to tortious liability. Liability does not arise as the result of a bargain E.g. If a driver runs over a pedestrian due to negligent driving Pedestrian may sue under the tort of negligence driver has no choice whether to accept liability, the courts will impose it. Liability arises as a consequence of having committed a tort, not as the result of a bargain Liability is normally fault-based (vs. strict liability in contract) Liability in tort is imposed only when a persons conduct does not match up to an objective, reasonable standard Claimant needs to prove that defendant acted intentionally / negligently (carelessly) In the Driver-pedestrian example: Driver will be liable only if he drove in a way that showed he failed to take reasonable care. If it cannot be shown that the driver drove badly, then there will be no liability, no matter how severe the pedestrians injuries.

Negligence is one of the most important torts in modern law that is widely defined and can be committed in a multitude of ways. In order to establish the tort of negligence the claimant must prove three things, on a balance of probabilities: 1. A duty of care was owed to the claimant by the defendant 2. That duty of care was broken as the required standard of care has not been reached by the defendant 3. That broken duty must have caused the loss complained of, and the loss must not be too remote a consequence

The duty of care

The following case is the foundation of the modern law of negligence Donoghue v. Stevenson the claimant and his friend visited a caf. The friend bought some ice cream and a bottle of ginger beer for the claimant. The claimant poured some ginger beer over the ice cream and ate some of the mixture. When the friend poured out the rest of the ginger beer the remains of some decomposed snail fell out of the bottle. Claimant suffered gastroenteritis and nervous shock. Claimant had no contract with the caf so cant sue. She instead sued the manufacturer of the ginger beer. It was held that the manufacturer owes a duty of care to see that customers are not injured by their products, thus was held liable This famous case set out the neighbour principle as laid down by Lord Atkin who stated that a duty of care was owed to ones neighbour, as said in the Bible love thy neighbour. Neighbours are persons who are so closely and directly affected by ones actions that you ought to reasonably have them in contemplation as being so affected when directing your acts or omissions in question. When a new situation which is not covered by the principle laid out in Donoghue v Stevenson arises, the courts will decide whether or not a duty of care is owed by applying the incremental approach established in the Caparo Industries plc. V Dickman. The general test set out in this case requires three elements to be demonstrated: 1. It was reasonably foreseeable that a person in the claimants position would be injured 2. There was sufficient proximity between the parties 3. It is fair, just and reasonable to impose liability on the defendant

Foreseeability This is an objective test conducted on the basis of whether a reasonable person in the defendants position would have foreseen that someone in the claimants position might be injured. Kent v Griffiths here it was held that the ambulance service owed a duty of care to a member of the public on whose behalf a 999 call had been made as it was reasonably foreseeable that a person in the claimants position would be further injured if the ambulance took too long to arrive. Proximity Proximity just means closeness. There can be proximity in terms of space, relationship or time. Relationship only becomes relevant when it makes the loss foreseeable to a person in the defendants position. Bourhill v Young here the defendant was not held to owe a duty of care to the claimant for her miscarriage as she was in a safe place and had not seen the accident but went to see the aftermath voluntarily. Thus, there was no proximity in space. McLoughlin v OBrien In this case, the claimant Mrs. McLoughlin suffered shock as a result of seeing the after effects of the accident on her husband and children. The court decided that the person that caused the accident owed a duty of care to her even though there was no proximity in terms of space or time. The proximity of relationship was the deciding factor. Reasonableness The third part of the test checks whether it is fair, just and reasonable to impose a duty of care. Cases with regard to public policy would most likely fail as the courts were reluctant to open the flood gates of litigation and the police need to be able to act without worrying about legal action in negligence against them. Hill v Chief Constable of West Yorkshire here the police were found to not owe a duty of care to potential victims of crime and their families on policy grounds.

However the police do tend to owe a duty of care to those people who they take into custody. MPC v Reeves- The police took a man into custody who was a prisoner known to be at risk of committing suicide. Whilst in police custody he hung himself in his cell, and the court found that the police owed him a duty of care. Orange v Chief Constable of West Yorkshire here the courts held that the police had not been negligent in permitting Orange to retain his belt with which he committed suicide, as the obligation to take care to prevent a prisoner from taking his own life deliberately only arose where the custodian knew or ought to have known that the individual prisoner presented a suicide risk.

In conclusion proof of the existence of a duty of care, where there is not an existing duty requires all three parts of the test in Caparo v Dickman to be established by the claimant. However breach of duty and resulting damage also needs to be proved.

Breach of Duty
Once established that a duty of care exists the claimant must satisfy the court that the defendant broke that duty of care by failing to reach the standard of care required. The standard of care is that of a reasonable man as defined by Baron Alderson in Blyth v Birmingham Waterworks Co. The reasonable man is the ordinary person performing the particular task; he is expected to perform it reasonably competently, which is an objective standard. When the courts look at whether a duty of care had been breached, there are five questions that are considered as foll.

Are there any special characteristics of the defendant? The defendant is expected to be a reasonably competent person performing the task. Wells v Cooper here the defendant was not held liable as he had reached the standard of a reasonably competent person in attaching the door handle Nettleship v Weston here the defendant a learner driver was held liable as the court decided that the learner drivers standard of driving should be that of a reasonably competent driver, not the standard of a learner driver.

Bolam v Friern Barn Hospital Management Committee - 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. It was held by the courts that the doctor was not in breach of duty as he had reached the standard expected of a reasonable person, and there was a substantial body of opinion within the profession that supported the course taken by the defendant.

Roe v Mister of Health here it was held that the hospital had not breached the duty of care owed to the patient as it was impossible to predict that the claimant would have been paralysed as a result of the glass ampoules being previously immersed in antiseptic solution. Does the claimant have any special characteristics? The reasonable man takes more care where the situation demands it, this factor relates to risks known to the defendant as a result of the peculiarities of the claimant. Parris v Stephney Borough Council here the council was held liable for Mr. Paris becoming blind, as they knew that he was already partially blind and had not taken any special precaution. They owed him a higher standard of care as a result of the increased risk they knew when they employed him Walker v Northumberland County Council here the council was held liable as well since they knew of the stress related illness suffered by the claimant and regardless didnt improve his workload.

 Morrell v Owen here the defendant was held liable for the injury suffered by the claimant who was an archer and was close to the curtain when a discuss struck her head. The defendant owed a higher standard of care as the sports event was for disabled athletes. Size of the risk? The greater the risk the more care needs to be taken. Bolton v Stone here it was held that the probability of the ball being hit out of the grounds and hitting a person on the road was very unlikely of happening, and could not be anticipated by a reasonable man. Thus, the courts decided that the cricket club had not broken its duty of care as it had reached the appropriate standard of care. Haley v London Electricity Board The courts held that it was reasonably foreseeable that a blind person may be in the area as about one in 500 people were blind or partially sighted, thus a reasonable person would take precautions to prevent such an accident from happening as it was a reasonable risk to protect from and not a fantastic possibility. Have all the practical precautions been taken? Latimer v AEC - here the defendant owed a duty of care to the employees but this was not breached as he took all the precautions (def. put up warning signs on the wall, passed the message around the workforce and saw dust was used to dry the floor) that were sufficient to in circumstances to prevent an accident. Benefits of taking the risk? This factor is referred to as public utility where there sometimes is a lower standard of care when reacting to an emergency. Watt v Hertfordshire County Council here the courts held that the firemen were ready to take the risk to save life, as the courts must balance the risk against the measures and the benefit of saving the woman was greater than the risk of injuring the fire fighters by using a vehicle not suited to carrying the heavy gear which moved and crushed the fire fighter. Thus the duty of care owed by the council to its employees had not been broken.

 Davy v High Performance Sports - here the court held that the climbing centre had not breached its duty of care and had reached the standard of care of a reasonably competent climbing centre.

Damage caused by the defendants breach

There will only be liability owed under negligence if the broken duty caused the loss complained of, and the law should recognise the loss as not too remote from the act. This is referred to as the damage. There are two parts to damage, namely causation and remoteness. Causation is the idea that the defendant must have caused the loss complained of (causation of fact). Remoteness is concerned whether the loss is reasonably foreseeable (causation in law).

Causation
This is the starting point, if there is no causation in fact then there is no point in considering whether there has been causation in law. This is proved by the courts applying the but for test, i.e. they ask whether the claimant would have suffered the loss but for the defendant breaching the duty. If the claimant would not, then this suggests that the defendant had not breached the duty and would not be liable for the loss. Barnett v Chelsea Hospital here a patient who visited a hospital was suffering from vomiting and was turned away by a doctor but later died from arsenic poisoning. The patient would have died anyway, even if the doctor had given him all the possible treatment, and so the hospital was not liable for the patients death. Hotson v East Berkshire Health Authority the defendants negligence had a 25 percent chance of having caused the claimants injury. The House of Lords held that to prove causation on a balance of probabilities what was required was at least a 51 percent probability that the negligence caused the injury, consequently the claim failed. To prove that the negligence caused the loss, the claimant must show that there was a chain of causation between the defendants breach of duty and the claimants loss. The chain must not be broken by a new act intervening (previously known as novus actus interveniens).

 Smith v Littlewoods Vandals broken into the unoccupied but locked building and started a fire, however this was novus actus interveniens, as there was no vandals reported in the area, therefore not liable for damages caused by the fire to other property. Corr v IBC Vehicles Depression on following a serious accident and subsequent suicide is as a result of the original accident and not nous actus interveniens. The Oropesa It was held that the owners of the Oropesa were liable; the actions of the captain of the other ship did not break the chain of causation because they were reasonable in all the circumstances. Reflex actions will not break the chain of causation. Carmarthenshire CC v Lewis a lorry driver was killed when he swerved to avoid running over a 4 year old boy. A primary school had been negligent in letting the boy get out onto the road. The school was liable for the drivers death. The drivers reflex action of serving the lorry did not break the chain of causation. Multiple causes Difficulties arise where the claimants loss was caused not only by the defendants negligence but also by other causes as well. Fairchild v Glenhaven Funeral Services Ltd. here, it was held that the claimants could recover full damages, against any of the employers who had been negligent. The employer who had to pay damages could gain a contribution from the other employers. McGhee v National Coal Board the defendants were held liable in negligence. A defendant is liable to a claimant if his breach of duty caused, or materially contributed to the claimants injury. This was the case even if there were other factors which contributed to the injury. If the court found that the defendants breach of duty had materially increased the risk of injury, this amounted to a finding that the breach had materially contributed to the injury.

 Barker v Corus UK Ltd. an employee who was negligently exposed to asbestos dust could sue any of the employers even if he could not prove which exposure had caused the mesothelioma. The damage that the def. had caused was the creation of a risk or chance that the disease would follow. However each employer would only be liable for his percentage chance of his having caused the disease, with no liability to contribute for the chance caused by other employers.

Foreseeability
In order for damages to be claimed for a loss, the loss must have been a type of loss or injury which was a foreseeable consequence of the defendants breach of duty. The extent of the loss need not be foreseeable, nor does the precise way in which it arose. The Wagon Mound - here it was held that though the defendants had negligently spilt the oil they were not liable for the damage which the fire caused. Fire was not a foreseeable type of damage; therefore the defendants were not liable for any fire damage. If a claim had been made for pollution by oil then the defendants would have been liable for this, because this was a foreseeable type of damage. As long as a certain type of damage is foreseeable the def. would be liable for all damage of that type. The eggshell skull rule hols that if a certain amount of injury to the person was foreseeable then the defendant would be liable for a much greater injury suffered by a particularly sensitive claimant Smith v Leech Brain here the defendants negligence caused the claimant to suffer injury when a drop of molten metal splashed onto his lip. Unknown to anyone, the claimant was particularly prone to cancer. The injury to his lip caused him to develop cancer from which he died. The defendants were liable for the claimants death, even though a burnt lip would not have caused death in many cases. OTHERS: [Bradford v Robinson Rentals (frostbite)] [Hughes v Lord Advocate (paraffin lamp explosion: 3 boys)] [Doughty v Turner Asbestos (eruption created by asbestos knocked onto a vat of molten metal too remote)]

Damages can be awarded for psychiatric injury, which is generally known as nervous shock. A note on Economic Loss As a matter of policy, courts are reluctant to compensate for pure economic loss Loss which is not an injury to the person or damage to property e.g. loss of profits Weller v. Foot & Mouth Research Institute (1966)

However: Hedley Byrne v. Heller (1963) Liability for negligent mis-statement can arise, even if it results in pure economic loss

In the 1990s, courts have applied the principle in Hedley Byrne to allow recovery for pure economic loss where it is caused by negligent advice/information; or negligent provision of services

Defences
1. Consent/Voluntary Assumption of risk (volenti non fit injuria) Claimant had full knowledge of the risk, & the risk was accepted voluntarily ICI Ltd v. Shatwell (1965) {here the workers did not take safety precautions. Employers were not held liable as they were not aware that the safety precautions were not adopted} A driver cannot use volenti against a passenger Pitts v. Hunt (1981) Here it was held that motorists cannot rely on volenti defence to avoid liability to passengers Volenti cannot be used against injured rescuers Haynes v Harwood (1935) Here a policeman was injured trying to safe some children from a runaway horse. He could claim compensation although it was caused by his own decision. It was held that volenti defence will not apply if the claimant was injured while reasonably trying to carry out a rescue 2. Contributory Negligence This is not a complete defence bur reduces the damages payable to the claimant. It is applied where the damage suffered is the result of partly the claimants own fault. Froom v. Butcher (1975) {in this case a motorist was injured by an accident which was not in any way his own fault, however if he was wearing a seatbelt his injuries would have been avoided altogether, therefore the damages in respect of the head and chest injuries were reduced by 25 percent. The damages for his finger were not reduced, as they would have occurred even while wearing a seatbelt} Badger v Ministry of Defence {smoking was a contributory factor for the husbands death, thus damages were reduced by 20%} Ehrari v Curry {the damages were reduced by 70% as the teenager without looking for traffic walked onto the road}
Apportionment of blame between claimant and defendant Law Reform (Contributory Negligence) Act 1945, s.1