The Tort of Negligence

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  • Created on: 16-05-13 10:33


Negligence can apply in a wide range of situations, such as wrong treatment- medical negligence, injured at work & car accidents.

The purpose is to put the V back in the position they would have been in have they not suffered the negligence and the court usually does this by awarding damages- compensation

There are 3 things the claimant must prove:

  • The defendant owned V a duty of care- Duty
  • D breached their duty of care (fell below the expected standard of care). - Breach
  • Damage resulted from D's breach of duty- Damage
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Duty of Care

Duty of care and the Neighbour principle in Donoghue and Stevenson. The House of Lords set out a test, called the 'neighbour test' to tell us when a person owes a duty and to whom they owe it.

  • 'You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.'
  • 'Who then, in law is my neighbour? Persons who are so closely and directly affected by my act or omission that I ought reasonably to have them in my comtemplation as being affected when I am directing my mind to the acts or omissions in question.'

The law today- the 3 stage test in Caparo v Dickman.

In Caparo v Dickman (1990) the neighbour test was replaced by a 3 stage test:

  • was it reasonably foreseeable that someone in the claimants position could be affected
  • was there proximity between the parties
  • is it fair, just and reasonable to impose a duty of care.

All three must be passed to establish a duty of care.

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Duty of Care stage 1

Was it reasonably foreseeable that someone in the claimants position could be affected by D's act or omission?

This is an objective test based on what the reasonable man would foresee and not what the D actually foresaw. E.g. in Donoghue v Stevenson would the reasonable foresee that someone who failed to stop animals small enough the enter the ginger beer from entering the ginger beer could affect the consumers.

Kent v Griffiths (2000)- A doctor called an ambulance for a patient suffering an asthma attack the ambulance didn't arrive quickly & the patient suffered a heart attack. - it is foreseeable that the ambulance service could affect an asthma sufferer when failing to arrive promtly.

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Duty of Care stage 2

Was there sufficient proximity between the parties?

Even where the harm is foreseeable, a duty of care will exist if the relationship between claimant and defendant is sufficiently close.

Hill v CC South Yorkshire (1990)- The police made a series of mistakes when investigating murders committed by Peter Sutclife (Yorkshire Ripper). The last victims mother claimed the police owed her daughter a duty of care. There was not sufficient proximity between the police & the victim of a serial killer because they didn't know who was going to be the victim.

Osman v Ferguson (1993)- The police knew the likely victim but failed to protect them & he died. There was sufficient proximity between the victim and the police because the police knew who the victim would be.

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Duty of Care stage 3

Is it fair, just and reasonable to impose a duty of care?

The first two tests, foresight and proximity, are a modification of the 'neighbour test' and are all that are needed if the situation in the claimant's case has already been established by an existing case. For new areas of liability the courts are reluctant to establish a new category of liability unless it raises issues that make it fair, just and reasonable to do so. These issues are known as policy considerations, such as: cost, floodgates (are there going to be loads of cases) and defensive practices.

X v Bedfordshire County Council (1995)- fell into 2 categories, victims of sexual abuse and dyslexic children, poor response from school.

Sueing the local authority- Decided that the teachers owed a duty of care to provide good schooling to dyslexic children fair, just and reasonable.

Decided that social workers don't owe a duty of care to prevent sexual abuse because, to impose a duty of care would impose defensive practices and to hold the social workers neglient for someone elses criminal offence isn't fair.

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Breach of duty

Once a duty of care has been established the claimant must show that it has been breached by the defendant. This means that the defendant has not matched up to the standard of care a reasonable man would provide in the circumstances of the case. This is known as the 'reasonable man test'. The reasonable man is the ordinary person performing the particular task, although he is expected to show normal competence, e.g. when I am riding a biycycle I am expected to be the reasonably competent cyclist.

It is an objective test, which means D can fall below the standard required even if s/he does his/her very best.

Nettleship v Weston (1971)- The Claimant was a driving instructor injured when his pupil drove into a lamp post during her 3rd lesson. No allowance was allowed because she was a learner driver she has to come up to the standard of care of a careful and competent driver.

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Breach of duty- risk factors

The standard of care in each case is worked out by the judge considering factors such as the risk of injury, the severity of any injury, how practicable it would be to take precutions against harm, the social utility involved in the activity.

1 The greater the risk of severity of injury caused would be the higher the standard the reasonable man would provide.

Bolton v Stone (1951)- The claimant was injured as she walked alongside a cricket pitch. There was a 17 foot fence, it had happened 6 times in the last 30 years and nobofy had been injuredin that time. It was reasonable they hadn't breached the duty of care.

Hayley v London Electricity Board (1964)- A blind person was walking along the pavement when he fell down a hole that had been dug by LEB, they had taken care by placing a tool over the hole which was a warning. Is it foreseeable? Yes, the court decided that a blind person may be affected therefore the reasonable man would have taken greater precautions.

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Breach of duty- risk factors

2 If the consequences of harm to a particular person are greater than for others, or if the cost of taking precautions are low, then a higher standard of care will be expected.

Paris v Stepney BC (1951)- Is a one eyed welder injured when welding under a bus. A spark flew of the metal and hit him in his good eye. This case goes to court the welder company said that they didn't have to provide safety goggles. Whereas not providing them would have been acceptable for a normal person it wasn't sufficient for a claimant with one eye because the harm was really serious and the cost of taking precautions was low.

Latimer v AEC (1953)- A factory wa flooded he clears the floor up, put sawdust down and warns his workers. An employee slips and falls. The court decides in these circumstances the factory owner has done a sufficient amount of careand only other thing he could have done would have been to close the factory which would have been too expensive.

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Breach of duty- risk factors

3 If there is social utility in the action it can justify the defendant taking greater risks.

Watt v Hertfordshire CC (1954)- The Claimant was a fireman injured when the fire engine was called out to help a women stuck under a vechile. In there hurry to respond they don't adequately secure the equipment in the back as they rush the equipment slides and crushes a fireman. The D's were not liable as they were taking greater risks to save people's lives.

4  Professional standards of care. The standard of care, determined by the reasonable man test, is an objective test. As we aw in Nettleship (1971) no allowance is made for inexperience, however a higher standard of care is expected from professionals. Surgeons, doctors etc will be judged according to the standard of care, skill and expertise of someone with training and experience.

Bolam v Frien HMC (1957)- A doctor gave the claimant electro shock therapy to treat his depression the claimant was sedated or strapped to the couch, he falls off the couch and breaks his hip. The case goes to court. The judges decides the doctor isn't neglient because other doctors said that they would do it the same way.

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Breach of duty- risk factors

The test has two parts to determine what the reasonable Doctor would do. First, does the conduct of the D fall below the standard of the reasonbly competent professional, and second is there a substantial body of opinion that would support the treatment given by the doctor.

5 D is expected to come up to the standard of care of the reasonable professional even where D claims to have a skill that he does not really posess.

Chaudrey v Prabhaker (1988) The claimant sued a friend for the advice he gave her when she was buying a car. The D claimed to know a lot about buying and selling cars when in reality he didn't. She wants a car that was safe, but the car wasn't safe, that D recommanded a car that was unroad worthy and looses her money. The court decided that he had breached the duty of care and should be judged against the experience he claimed to have.

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Once the claimant has shown that the D owed him a duty of care and has breached that duty he must prove that the damage suffered was caused by the breach of the duty.

A. Factual Causation- The first aspect is to show that D has been the factual cause of the claimant's injury. This is done by using the 'but for' test, where it must be proved that the claimant would not have suffered damage 'but for' the D's breach of duty of care.

Barnett (1969) The V who was a security guard went to hospital after drinking tea and feeling unwell. The doctor told the nurse over the phone to tell him to go home have some sleep and see how he felt in the morning. The next day the man was dead as the result of arsenic poisoning in his tea. But for the doctor failing to see the patient would he have died? Yes so not the factual cause.

Intervening events- when do they breakte chain of causation? Next we can consider legal causation and whether there is a novus actus interveniens that will break the chain of caustion between the D's act and the harm or injury suffered by the claimant. An intervening act will only break the chain of causation wher it is unforeseeable.

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Haynes v Harwood (1935) A man left his horse unattended and some boys came along along and threw stones at the horse which careered down theroad into a busy town centre. A police officer see the horses and thinks it going to hurt someone. The police officer intervenes and gets injured. Intervening acts were foreseeable so the D was neglient for the injury.

B, Is the damage reasoanbly foreseeable?- Remoteness of damage- The damage must not be too remote from the defendant's negliegence. This means that the defendant will only be liable for the type of damage that the reasonable man would foreseeable.

The Wagon Mound (1961) Oil was negliently spilled onto a jetty and into a habour two days later cotton waste caught fire and lite the oil alightand damaged the claimants wharf. Freak sequence of events. The court decided that D was not neglient because it was not foreseeable that oil would damage the wharf- it was too remote.

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If the damage is greater in extent than was reasonably foreseeable then the defendant will still be liable- it is the type and not the extent of harm which must be forseeable.

Hughes v Lord Advocate(1963) Post office workman left a manhole unattended with a tent over it andd a pariffin lamp by the hole. An eight yearold boy went into the tent to play with the lampthere was an explosion and he was seriously injured. Even though there is no explanation for the explosion happened and the injuries were unexpected the D was liable because its the type of harm and not the extent that must be foreseeable.

Finally the D must take his victim as he finds him. This is the thin skull rule and means that the D will be liable for the full extent of the damage, where the extent is more serious than expected because of somthing unusual about the C.

Smith v Leech Brain & co (1962) The C wa burnt on the lip by molten metal he had a percancerous condition which was triggered by the injury causing his death. D argued that they should be liable for the injury not death because a normal person wouldn't have died. D was liable because of the thin skull rule.

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