The Tort of Negligence

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Duty of Care

There are some people who always owe each other a duty of care. For Example motorist owe a duty of care to all those who they can reasonably forsee may be affected by their actions, this is the same for doctors and their patients.

Donoghe v Stevenson- This case set out the neighbour principle in the law of negligence. This principle is the foundation of modern law.

Caparo v Dickman- The 'neighbour' test was replaced by the modern day three-part test;

  • Was the damage/Harm reasonably foreseeable?-Fardon v Harcourt-Rivington(Dog and glass from the window hit a passer by)
  • Is there a sufficiently promximate relationship between the claimant and the defendant?- Bourhill v Young (Claimant heard noise of accident, she didnt see it happen but saw the aftermath,and suffered a miscarriage.)
  • Is is fair, just and reasonable to impose a duty?-Hill v Chief Constable of South Yorkshire(mother of murdered victim said police should have caught murderer earlier)
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Breach of duty

Once it has been proved that the defendant owed a duty of care to the claimant , it is necessary to show that the defendant breached that duty. In other words the defendant did not take the care that the reasonable person would have taken. 

Nettleship v Weston- The standard of care expected of a learner driver is the same as that of any driver. This is logical from the viewpoint of those injured and because there is complusory insurance. 

In deciding whether the defendant acted like the reasonable person would have the court takes into account several factors:

A reasonable person will not normally be expected to go to great lengths to prevent harm where there is only a very small risk of it occurring. Bolton v Stone(Took precautions agasint reasonable risks, not fantastic possibilities). Miller v Jackson (Ball flew out of the cricket ground several times a month, so did not do what the reasonable man would have done).

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Breach of duty continued.

Where the risk seems small but the potential harm that might occur is great, a reasonable perosn would be expected to take steps to deal with the risk.

Paris v Stepney Borough Council- The defendant knows of an increased risk to the claimant, more care must be taken. The council knew he only had one good eye so needed to do more than the usual to protect the other.

It may be acceptable to run a risk if the purpose of the activity justifies it.

Watt v Hertfordshire County Council-  The benefits of saving a women's life outweighed the risk of injury to a firefighter when using the best, but still unsuitable vehicle in an emergency.

The expense and practicality of taking precautions may be considered.

Latimer v AEC Ltd- The reasonable man is taking all practical precautions. So after a flood, the most practical thing to do was to mop up and warn the employees in the factory. As the cost of closing the factory is not practical.

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Breach of duty Continued.2.

The standard expected of a defendant with special characteristics- The courts tend to expect a higher standard of care from people with special skills and expertise. For example, Professionals, such as doctors, they would be judged by the standards of others in that profession and are expected to meet certain professional standards.

Bolam v Barnet Hospital Management Committee- Following either of two accepted medical methods was said to be acceptable in reaching the standard of care expected.

Children- If the defendant is a child the standard of care expected is lower than that which would be expected from an adult- Mullin v Richards- Two 15 year olds having a fight with plastic rulers, ruler snapped and went into the claimants eye.

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Causation for negligence

Even if the claimant can show that the defendant owed a duty of care and that the duty was breached, the claimant still must prove that the defendant was the cause of the damage/harm suffered.

In deciding if the defendant is liable the courts consider two things:

  • Are there a number of possible causes of damage and if so, which one should be treated as the significant one. This is Causation.
  • How far should the defendants liability for damage extend? This is remoteness of damage.
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Causation-The 'but for' test(Factual Causation)

The test is basically same as the criminal 'But for' test apart from the cases are different!

Barnett v Chelsea & Kensington Hospital Management Committee- This is an example where there was no causation, as the hospital could not have done anything to save his life. The cause of death was the original posioning, not the hospitals failure to examine Barnett properly.

Novus actus interveniens(an intervening act)-  Smith v Littlewoods- vandals broke into an unoccupied, but secured building and setting fire to it was a new intervening act when vandals were not common to the area. 

Multiple causes- Even if the defendant has been negligent, it may be unclear whether this negligence/something else caused the damage. Barker v Corus- This case modifies the 'but for' test in asbestos cases only and should be seen a special exception to ensure some remedy for the victim.

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Remoteness of Damage

Remoteness of damage- The defendant is liable for damage only if it is the foreseeable consequence of the breach of duty.

WagonMound- Damage by the spilt oil was foreseeable; damage by the fire caused by the oil was not foreseeable and was therefore too remote. 

Bradford v Robinson Rentals- As long as the type of damage is foreseeable, it does not matter that the form it takes is unusual. In this case, frostbite was an extreme form of injury from the cold. Hughes v Lord Advocate- The claimant succeeding for injury caused by an extreme type of harm.

Take your victim as you find them- 'Thin Skull' rule- This is where the claimant suffers more serious harm from a breach of duty by the defendant than a reasonable person may foresee. Smith v Leech Brain- The claimant had a pre-cancerous condtion. He was splashed on the lip by some molten metal. The burn turned into cancer as a result of his existing condition. His claim succeeded.

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Res ipsa loquitur- The thing speaks for itself.

In order to show the defendant was negligent the claimant must prove duty, breach and 'damage'(The resulting loss to a claimant from a breach of duty of care). However in some situations the claimant may not know exactly what has happened but it may be obvious that the defendant has been negligent. So negligence can be inferred from the fact that the accident happened.

Scott v London and St Katherine's Docks- The claimant was walking along the dock when he was hit on the head by a sack of suagr. The court held it possible for negligence , as the bags could have not fallen by themselves.

In cases like this the defendant has to show that there has been no breach of duty rather than the claimant to prove that there has. To prove that the dock company was negligent the required elements for res ipsa loquitur were present:

  • The thing that caused the harm was under the control of the defendant.
  • Sacks of sugar do not fall by themselves unless someone has been negligent.
  • There is not other explanation of the injury caused to the claimant.
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