The tort of negligence

Tort of Negligence

Tort: a civil wrong

Tort of negligence; causes damage/harm to a person and or their property.

Doctrine of Duty of Care

To prove that a person has been negligent, three things must be proven by the C:

• D owed a duty of care
• D breached that duty
• breach of duty caused damage/harm to C and or their property

Duty of care

To prove that the D owed them a duty of care the C must prove the three stage testestablished in Caparo v Dickman

• Damage/harm reasonably foreseeable
• Sufficient proximity between C and D
• Fair, just and reasonable to impose a duty

Duty of Care:

Damage/ Harm Reasonably Foreseeable

Cases

Kent v Griffiths

• C had asthma attack
• Ambulance arrived half an hour late
• C sufferent a heart attack
• this would not have happened if the ambulance had been on time 
• It was reasonably foreseeable

Jolley v Sutton BC

• boat was left on council land
• 14 year old boys try to fix boat
• boat paralysed one of the boys
• attempting to repair the boat was similar to normal play
• therefor injury was reasonably foreseeable
• C won

Duty of Care:

Damage/ Harm Reasonably Foreseeable

Cases

Bourhill v Young 

• motor cycle crash resulted in D's death
• C- 8 month pregant women
• C heard the crash and saw some blood 
• claimed that the shock brought on the still birth of her baby
• Not reasonably foreseeable 
• C lost

Topp v London County Bus Ltd

• D left the keys in the ignition of an unatted bus
• Bus was stolen and caused a accident
• Injurying the C
• Not reasonably foreseeable

Duty of Care:

Proximity between C and D

Cases

The relation between the C and D must be close 

The closeness can be through a legal relationship or physical closeness

Home Office v Dorset Yatch Club 

• D's: barstal officers 
• allowed seven boys to escape from a training camp whilst they were sleeping
• the boys stole the C boat and caused damage to other boats in the harbour
• There was physical closeness between the D's and C's
• C's won

Duty of Care:

Proximity between C and D

Cases

Hill v CC of South Yorkshire

• C parents of the last yorkshire ripper victim
• Claimed the police owed them a duty to act on evidence and catch the ripper
• there was not sufficent proximity 
• although the police knew that there would probably be another victim
• they didnt know who that victim would be 
• C lost

Osman v Ferguson

• Teacher stalkes pupil
• police were aware that the pupil was in danger
• teacher was fired so shot the pupil and his father
• father died
• mum sued the police
• was sufficent proximity
• C won

Duty of Care:

Fair, Just and Reasonable

Cases

The court decide weather its fair, just and reasonable in all the circumstances to impose a duty of care. 

Normally easy to prove with the exception of the pubilc services and the emergency services as the courts applt the 'public policy' meaning they decided weather it is in the best interest of the wider public.

Hill v CC of Yorkshire/Osman v Ferguson

• It is  not fair, just and reasonble to impose a duty to care on the police
• lead to defensive policing 
• in turn could lower the standard of policing

Capital and Counties plc v Hampshire County Council

• commercail property set on fire
• the chief fire officer told them to turn of the sprinklers
• causing a dangerous situation C won

Breach of Duty 

To decide whether the duty has been breached the court will look at:

• Standard of care expected 
• Characterisations of the D
• Characterisations of the C
• Size of risk
• practicality of taking precausions
• potentail benefits from the risky activity

Breach of Duty:

The Standard Expected

Cases

The standard is that of a "reasonable person", which is an objective test.

Vaughan v Menlove

• D's haystack caught fire 
• Caused damage to nieghbouring properties
• A reasonable person would have took precausions
• C won

Mullins v Richards

• 2, 15 year old girls were 'fencing' with rulers
• A bit of the ruler broke and blinded the C 
• Standard of a ordinary reasonable 15 yr old girl
• such person would not foreseen a risk of injury
• C lost

Breach of Duty:

The Standard Expected

Cases

Nettleship v Weston 

• Learner driver crashed into a lampost
• injuring the C passenger
• Standard is of a reasonable compatent driver
• C won

Wilsher v Essex AHA

• Jr doctor gave a baby excess oxygen and caused injury
• Inexperience is no defence and the D should be judged against the standard of a compatent doctor
• C won

Breach of Duty:

Characteristics of the Claimant

A claimant may have characteristics that make them more vunerable in the circumstances

Paris v Stepney Borough Council

• C blind in one eye
• worked in an enviroment where there was small risk of injury to his eye
• a piece of metal blinded him fully
• the risk of damage was low
• this is counter balanced by the gravity of harm to a vunerable C
• C won

Breach of Duty:

The Size of  the Risk

The greater the risk of harm, the more likely the duty has been breached

Bolton V Stone

• cricket ball was batted out of a cricket ground
• hit the C on her head, who was standing 100 yards away in her gardens
• risk of injury to a person from a ball being hit out of the grounds was to small
• C lost

Hayley v London Electricity Board

• D dug a hole and left a hammer on its end to mark the hole
• C: A blind man would could obviously not see the hammer tripped over it 
• C was injured
• Blind people walk on pavements therefor there was a high degree of risk
• C won

Breach of Duty:

The Practicality of Taking Precautions

Bolton v Stone

• D had already erected a high fence around the cricket pitch
• this was a reasonable precaution therefor there was no breach
• C lost

Paris v Stephney BC 

• Cost of suppling goggles was small when compared to the risk of harm to C
• therefor duty was breached
• C won

Hayley v London Electricity board

• A hammer left in the road was not a reasonable precaution 
• therefor there was a breach of duty

Breach of Duty:

Potential Benefits of the Risky Activity

If the D's actions serve a socially beneficail purpose in an emergency they may be justified in taking greater risks.

Watt v Hertfordshire County Council

• C fire fighter attending an emergency
• where a woman was trapped under a car
• C was injured by a jack
• the benefit of saving a woman from under the car was greater than the risk to the C using the replacement vehicle
• therefor there was no breach 
• C lost

Damage Caused by the breach

Causasion in negligence covers factual causation:

but for test, multiple causes and intervening acts

and legal causation:

remoteness of damage and thin skull rule

Factual causation: but for test

Barnett v Chelsea Kensington Hospital Management Committee

• 3 night watch men went to hosptial
• complaining of vomiting after drinking tea
• the doctor refused to see them 
• one of the men died
• later found that there was arsen in the tea
• it was found that the watchman would have died anyway 
• therefor the but for test is met and the hosptial was not liable
• C lost

Factual causation: multiple causes

Wilsher V Essex AHA

• a baby was giving excess oxygen and was blinded
• excess oxygen was 1 of 6 possible causes
• as all the different causes were present at the time of damage
• could not be proved that the oxygen caused the damage
• Claimant lost

Factual causation: New intervening acts

Smith v Little woods

• D owner of a derilict cinema
• Vandals set it on fire causing damage to neighbouring properties
• fire was a new intervening act as the D had no knowledge of vandalism in the area 
• events were not reasonably forseeable
• C lost

Legal Causation

(Remoteness)

Case Example

Even if the factual causation is proved the C may be unsuccesful if the damage is too 'remote'. 

Remoteness of damage questions if the concequence was reasonably forseeable.

The Wagon Mound (no 1)

• Oil leaked into harbour by the D 
• Oil floated under C boat 
• Welding was taking place in the wharf and a spark ignited and set the oil on fire.
• D could not be liable
• Not reasonably forseeable that the oil would ignite and damage the boats being repaired in the wharf. 
• C lost.

Legal Causation

(Remoteness)

Cases

Crossley v Rawlinson

• Fire on a lorry
• C ran toward the lorry to help put out the fire
• C tripped over a pot-hole and suffered injury
• injury was to remote 
• although injury putting out the fire would be reasonably foreseeable
• it wasnt reasonably foreseeable for C to be injured in this way

Bradford v Robinson Rentails

• C suffered frostbite when sent on a journey in winter with no heating
• in the company van
• D argued that frost bite was to remote
• As long as the type of damage was forseeable it does not matter that the form it takes was unsual.
• C won

Remoteness of damage

and

the thin skull rule

Smith v Leech Brain and Co

• C suffered a burnt lip at work from a piece of molten metal
• His lip was Pre-malignent and the burn brought on skin cancer
• Burn was foreseeable 
• D was liable for the cancer
• C won.