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Tort Revision Negligence and Duty of Care
Negligence - a breach of legal duty to take care which results in damage to the claimant. This definition of negligence can be broken down into four component parts that a claimant must prove to establish negligence. The legal burden of proving each of these parts falls upon the claimant.
- The claimants was owed a Duty of Care
- (^) There was a breach of that duty of care
- The claimant suffered damage as a result of that breach ( Causation )
- The damage suffered was not too remote
The duty of care concerns the relationship between the defendant and the claimant, which must be such that there is an obligation upon the defendant to take proper care to avoid causing injury to the claimant in all circumstance of the case. There are two ways in which a duty of care may be established: -the defendant and the claimant are within one of the ‘special relationships’ -outside of these relationships, according to the principles developed by case law
The Neighbour Principle The neighbour principle was formulated by Lord Atkin in Donoghue v Stevenson and was initially used to determine whether a duty of care existed between the defendant and the claimant. Neight principle is a principle of English law which says that a person should take reasonable care to avoid acts or omissions that he can reasonably foresee as likely to cause injury to the neighbour. Neighbour includes all persons who are so closely and directly affected by the act that the actor should reasonably think of them when engaging in the act or omission in question.
Donoghue v Stevenson Mrs Donoghue and a friend visited a cafe. Mrs Donoghue’s friend bought her a bottle of ginger beer. The bottle was made of opaque glass. When filling Mrs Donoghue's glass, the remains of a decomposed snail floated out. Mrs Donoghue developed gastroenteritis as a result. Lord Atkin explained the narrow rule. ‘A manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of
intermediate examination, and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer’s life or property, owes a duty of care to the consumer to take that reasonable care.
Caparo v Dickman The case considered the liability of an auditor for financial loss suffered by investors. However, it also set out the three points which a court must consider whether a duty of care exists. The three points are: -Reasonable foresight of harm -Sufficient proximity of relationship -That it is fair, just and reasonable to impose a duty Effectively redefined the neighbour principle such that it adds the requirement that there must be a relationship of sufficient proximity and that the imposition of a duty of care must be fair, just and reasonable.
Liability for failing to act If you see someone in peril, you are not obliged to try and rescue them, and if you fail to do so you cannot be liable in negligence for not acting positively. You may feel a moral obligation but there is no legal obligation. If an individual does choose to intervene, you are still not liable, unless they make matters worse ( East Suffolk Rivers Catchment Board v Kent and another - D was the Board who had statutory powers to repair a breach in the sea wall. C whose land was flooded during a very high tide breaching the wall. D carried out the repairs so efficiently that the flooding continued for 178 days, instead of 14 days. C’s pasture land was seriously damaged. D was under no liability to C, the damage suffered by them being due to natural causes. Where a statutory authority is entrusted with a mere power it cannot be made liable for any damage sustained by a member of the public by the reason of a failure to exercise the power. So long as the authority exercises its discretion honestly, it can determine the method by which, and the time during which, the power shall be exercised.)
EXCEPT There is a duty to act positively if there is a special relationship or a relationship of power/control between the parties. Examples include: -Prison officers and prisoners (Home Office v Dorset Yacht Co) -Employer and employee (Employers Liability) -Occupier and Visitor (Occupier’s Liability) -Parent and Child ( Carmarthenshire County Council v Lewis - D was a local authority employed a teacher who left a 4 year old child alone for about 10
Breach of Duty
The second element of negligence is breach of duty. Having established that a duty of care exists in law and in the particular situation, the next step in establishing liability is to decide whether the defendant is in breach of that duty - in other words, whether the defendant has not come up to the standard of care required by the law.
Standard of Care was generically defined in Blyth v Birmingham Water Works - a wooden plug in a water main became loose in a severe frost. The plug led to a pipe which in turn went up to the street. However, this pipe was blocked with ice, and the water instead flooded the claimant’s house. The claimant sued in negligence. Alderson B defined negligence as: the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do.
The Reasonable Person Depicted in Hall v Brooklands Auto-Racing Club by Greer LJ as: -The man in the street -The man on the Clapham omnibus -The man who takes the magazines home, and in the evening pushes the lawn mower in his his shirt sleeves. The reasonable man is not perfect, but average. In deciding whether or not an individual has breached the duty of care, the court applies an objective test. Therefore the courts ask not what a ‘reasonable person’ would have done, but ‘what did this particular defendant foresee in this particular situation?’
Special Standards of Care Certain situations in which the courts apply a different standard of care from that of a reasonable person since the application the general standard of care as that of the reasonable person would not be suitable
- Where the defendant has a particular skill - standard of care applied to professionals with a particular skill or expertise is that of the reasonable person with the same skill or expertise is that of the reasonable person with the same skill or expertise. For example, a doctor would show more skill that a reasonable man. ( Bolam v Friern Hospital Management Committee, Bolitho v City and Hackney Health Authority)
- Where the defendant has a particular lack of skill, otherwise no allowance is made for the inexperience or lack of skill of the defendant ( Nettleship v Weston )
- Where the defendant is a child - expected to reach standard of care reasonably expected of ordinary children of the same age ( Mullin v Richards)
- Where the defendant is competing in or watching a sporting event - spectators and competitors in sporting events may be owed a lower standard of care than the general standard ( Wooldridge v Sumner)
Other relevant factors
- The magnitude of the risk - determined by the likelihood of it occurring and the seriousness of the potential injury. Bolton v Stone, Miller v Jackson , more frequent cricket balls, therefore more likely to occur. With seriousness of injury, the defendant may be aware that a specific individual risk of suffering greater damages than normal, therefore a higher standard of care is required. Paris v Stepney Borough Council, individual became completely blind as he was not provided with goggles.
- The cost and practicality of precautions - the court will take into account what (if any) measures the defendant could have taken to avoid the risk of injury, the cost of those measures and the ease with which they could have been implemented. Latimer v AEC , even though closing is more costly, it would have prevented accidents in the factory.
- The social value of the defendant’s activities - if in public interest, there is a lower standard of care. For example, whilst emergency services may run red lights, they must warn other road uses using lights and sirens.
- What the reasonable person would have foreseen - the standard of care is predicted on what the reasonable person would have foreseen. This depends upon the probability of the consequence. Harris v Perry - constant supervision of children on a bouncy castle viewed as unreasonable.
Proving a Breach of Duty? The legal burden of proving breach of duty is on the claimant. This must be established ‘on balance of probabilities’. However there are certain circumstances in which the claimant may have some assistance:
- Where res ipsa loquitur (the thing speaks for itself) applies courts will be prepared to find a breach of duty against the defendant
Causation
What is causation? The claimant must show a causal link between the defendant’s act or omission and the loss of damage suffered. Otherwise known as the chain of causation.
Factual Causation The breach of duty must be the factual cause of the damage. The general test used by the courts to determine factual causation is known as the ‘but for’ test. Cork v Kirby Maclean (Lord Denning) - if the damage would not have happened but for the particular fault, then that fault is the cause of the damage; if it would have happened just the same, fault or no fault, the fault is not the cause of the damage. The question is ‘ But for the defendant’s breach of duty, would the loss or damage have occurred?’ Proof of damage is essential within negligence. Rothwell v Chemical & Insulating Co Ltd, the HoL held that symptomless problems and risk of future illness/anxiety are not able to gain compensatable.
Problems with Proving It
- Multiple causes of damage - more than one possible cause of harm, Bonnington Castings Ltd v Wardlaw , when the claimant inhaled dust causing pneumoconiosis, one dust was required by law to be remove, ‘materially contributed’ to the damage.
- A ‘lost chance’ of recovery - courts are extremely reluctant to impose liability where the negligence of the defendant caused the claimant to lose a chance. Hotson v East Berkshire Area Health Authority - a boy fractured his hip and through misdiagnosis, developed deformity. If he was diagnosed he would have had a 25% chance of not developing deformity so awarded damages for lost chance. REVERSED as it did not satisfy the balance of probabilities (over 50%)
- Multiple consecutive causes of damage - where there are consecutive causes for the damage, the application of the ‘but for’ test is applied to the original defendant. Performance Cars Ltd v Abraham - both drivers are liable, but only the first defendant liable for the cost of respray, as it was already damaged before the second collision.
Novus Actus Interveniens
An intervening act may break the chain of causation between the defendant’s breach of duty and the loss of damage suffered by the claimants. If the novus actus interveniens is sufficient to break the chain, then the defendant may not be liable despite being in breach of the duty of care.
- A third party act - the original defendant will be liable where the intervening act does not cause the loss. The original defendant will be responsible for ‘injury and damage which are the natural probable results of the [initial] wrongful act’ Knightley v Johns
- The act of the claimant - viewed as contributory negligence, in which the claimant has not taken care in order to prevent further injury. McKew v Holland & Hannen and Cubitts Ltd - claimant did not use handrail walking down stairs despite already injuring his leg, fell and therefore suffered further serious injuries.
- An act of nature - intervening acts of nature will not generally break the chain of causation. However, the defendant will not normally be liable where the intervening act of nature is unforeseeable and separate from the initial negligent act or omission. Carslogie Steamship Co Ltd v Royal Norwegian Government - Claimant’s ship was damaged further during a storm, not liable as it was unforeseeable and quite separate.
Remoteness
The final element required in establishing negligence is the extent of the damage suffered by the claimant which should be attributable to the defendant. Remoteness is often referred to ‘legal causation’. Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd (The Wagon Mound) - the defendants negligently leaked a quantity of bunkering oil into Sydney Harbour from a tanker. This oil drifted into the claimant’s wharf where it mixed with assorted detritus including cotton wadding. Welding was taking place in the wharf. The claimants sought (and received) assurances that it was safe for them to continue welding. However, sparks from the welding ignited the oily wadding which caused fire to spread to two ships, damaging them. The wharf was also fouled. At first instance, the trial judge applied the principles from Re Polemis, finding that the defendants were liable for the fire damage, since the fouling to the wharf was a foreseeable consequence of the leakage. On appeal, the Privy Council reversed the decision, holding that the correct test for remoteness is reasonable foreseeability of the kind or type of damage in fact suffered by the claimant.
to an activity which carries a risk of harm should not be able to hold the person who had caused that harm liable in tort. COnsent is a complete defence,; if it is argued successfully, the defendant will not be liable for the claimant’s loss. The defendant must show that the claimant had knowledge of the risk involved and that they willingly accepted that risk.
Illegality ( ex turpi causa non oritur actio) There must be a close connection between the injury sustained by the claimant and the criminal enterprise in which he is involved. For example, if two thieves were on their way to commit a burglary and one bunch the other, there would be no defence of illegality to prevent a claim in tort for trespass to the person because the attack was unconnected with the planned criminal enterprise.
Contributory Negligence Unlike consent and illegality, contributory negligence is not a complete defence but a partial defence that reduces the level of damages payable to the claimant. It applies when the claimant’s carelessness has in some way caused, or contributed to, his own injuries.
Standard of Care The standard of care is that of the reasonably prudent person. In other words, a defence of contributory negligence will succeed if it can be established that the claimant failed to recognise that he was jeopardising his own safety if this would have been obvious to the ordinary person.
Apportionment of Blame If a defendant establishes contributory negligence, the court will look at the contribution of both parties to the harm suffered by the claim and apportion a percentage of responsibility to each party. The claimant’s damages will be reduced by that percentage. There are two factors to take into account when deciding to apportion blame; causation and culpability.
Psychiatric Illness Liability
- Courts will only compensate medically recognised illnesses rather than claims for distress, sorrow, or grief. They are also more likely to be awarded compensation if it comes from a physical injury Attia v British Gas
- The four main policy considerations in a personal injury case for the courts:
- Difficulty in differentiating grief and psychiatric illness
- People ‘looking’ for compensation
- (^) Disproportionate liability concerns
- Types of victim:
- Primary Victim : A victim who has reasonable fear for own safety and been placed in physical danger by D’s negligence
- Secondary Victim: Witnesses or those involved in the immediate aftermath
- Primary Victim - provided physical harm is foreseeable. Psychiatric harm does not have to be ( Page v Smith - The claimant had suffered from ME over a period of time and was in recovery when he was involved in a minor car accident due to the defendant's negligence. The claimant was not physically injured in the collision but the incident triggered his ME and had become chronic and permanent so that he was unable to return to his job as a teacher. He was successful at his trial and awarded £162,000 in damages. Held: Provided some kind of personal injury was foreseeable it did not matter whether the injury was physical or psychiatric. There was thus no need to establish that psychiatric injury was foreseeable. Also the fact that an ordinary person would not have suffered the injury incurred by the claimant was irrelevant as the defendant must take his victim as he finds him under the thin skull rule.)
- (^) Secondary Victim - psychiatric illness must be reasonably foreseeable to a victim of normal fortitude ( Bourhill v Young - The claimant was a pregnant fishwife. She got off a tram and as she reached to get her basket off the tram, the defendant drove his motorcycle past the tram at excessive speed and collided with a car 50 feet away from where the claimant was standing. The defendant was killed by the impact. The claimant heard the collusion but did not see it. A short time later, the claimant walked past where the incident occurred. The body had been removed but there was a lot of blood on the road. The claimant went into shock and her baby was stillborn. She brought a negligence claim against the defendant's estate.Held:No duty of care was owed by the defendant to the claimant. There was not sufficient proximity between the claimant and defendant when the incident occurred.)
- Lord Wilberforce’s Alcock Control Mechanisms to Restrict Liability
- (^) Proximity of Relationship with immediate victim must be a ‘close relationship of love and affection’ (Only presumed for spouses, parents and children)
- If you negligently give distressing news you may be liable ( AG v Tameside and Glessor HA -Brooke LJ Negligence, Professional Negligence, Personal Injury The choice of the telephone as a means of alerting and re-assuring people, who had received treatment from a health worker later found to be HIV+, was proper. The was no breach of a duty care, even though some people called had suffered distress. "... once the defendants had decided to inform their patients at all, they were under a duty to take such steps to inform them as were reasonable, having regard both to the foreseeable risk that some of them might suffer psychiatric injury (or any existing psychiatric injury might be materially aggravated) upon receipt of the information " and "the judge has to perform the familiar role of considering the factual evidence carefully, listening to the expert evidence, and forming a view as to whether in all the circumstances these public health authorities fell below the standards reasonably to be expected of them when they selected their preferred method of communicating the information to the patients." )
- (^) Impact of White v CC of South Yorkshire - there is a duty to protect employees from psychiatric harm and is no different from their duty to protect all people and unwitting agents. Difficult to argue unwittingly harmed because of D’s negligence but it is possible ( W v Essex CC) Rescuers - who suffer physical injury is foreseeable ( Haynes v Harwood)
