#3546 - Negligence - Tort Law

Negligence

D owes duty to C D breaches it C suffers loss/damage causation (but for, remoteness, within scope of D’s duty) = liability

1. Standard of care

   • Objective Test– would a reasonable person undertaking the activity have foreseen a risk arising from it?

• Nettleship v Weston-learner driver but standard of care applied was the same as for all other drivers.

• Reasoning: shouldn’t deviate from standards applied by criminal law; insurance; practicality – shouldn’t owe different duty to people depending on whether they know of her status.

  • Variations

1. Children – typical child of D’s age (risk of significant PIreasonably foreseeable to a child of D’s age)

• Mullin v Richards- P suffered injury to her eye when plastic ruler broke during mock sword fight at school. Held:objective test of foreseeability but question for the judge is whether reasonable & ordinarily prudent girl of D’s age in that situation would have realised her actions gave rise to risk

• Alternative – bring action against organisation/individual responsible for supervision – will need to show failure to exercise due care to supervise

2. Sporting events (spectator/fellow sportsman)–person attending the game assumes certain risk of damage caused by sportsman (reasonable expectation of care varies)

• Blake v Galloway –5 teens threw rigs, 1 got eye injury. No breach b/c participation = tacit consensual agreement w/ rules of the game. Breach would require more than simple error of judgment or lack of skill.

• NB:courts are aware of concern that, due to compensation culture, some forms of recreation will be abandoned b/c risk of liability associated w/them. SO there’s too much emphasis on safety to the detriment of valued risk taking. Perry v Harris(bouncy castle kid injury) sends a message that law on negligence doesn’t set unrealistic standards for everyday activities. Emphasis is on a reasonable parent, rather than contents of ‘official’ docs& guidance related to equipment.

3. Special skill –ordinary man exercising/professing to have that special skill (level of experience irrelevant)

• Bolam’s test: D isn’t guilty if he acted in acc w/practice accepted as proper by responsible med body skilled in that particular art.

• But applied in such a way that court’s judgment was replaced by D’s medical expert opinion, as long as it was found honest and responsible; i.e. many aspects of med negligence have been Bolamized (McDavies) wherever tricky issues arose re standard of duty of care in med context, habitual response of courts was to avoid making own judgment. Bolitho clarified that final judgment lies with the courts.

• Bolitho v City of Hackney Health Authority (1998) - boy suffered cardiac arrest, died in hospital, questioned ifdochad attended sooner would she have incubated & if it would have helped; held question of whether a professional has done all that could be reasonably expected of him islegal not professional one.

• Wilsher v Essex Health Authority – lack of D’s experience doesn’t provide an exception to objective standard – it will instead be judged in acc w/the post which D occupies. Here, D was at neonatal specialist unit = high standard of care.

• NB: Where med opinions on D’s negligence conflict, apply BolamMcNair J: D isn’t guilty if he acted in acc w/ practice accepted as proper by responsible body of medical men skilled in that particular art, merely because a body of opinion would take contrary view.

2. Breach: Justifiable risk taking - where a reasonable person would choose to run the foreseen risk no liability will attach to D

   • Would a reasonable man, careful of safety of his neighbour, would think it right to neglect the risk? (Reid)

• Bolton v Stone- cricket ball hit a person on the street; risk was so small that a reasonable man in circs would be justified in disregarding it & taking no steps to eliminate it.

• The Wagon Mound- large spill of oil, explosion of 2 vessels, damage/spillage was negligent – reasonable person will take foreseeable risks only where it’s worthwhile for him to do so. Some risks, although foreseeable, are very low in probability but that doesn’t justify D’s ignorance - must have some valid reason for ignoring it.

  • s1 Compensation Act 2006: deterrent effect of potential liability

• Court will consider whether requirement for D to take steps to meet the standard of care would prevent a desirable activity from being undertaken &d discourage persons from undertaking functions in connection with that activity – but what is a ‘desirable activity?’

3. Duty of care

• Development: specific duty situations neighbour principle in Donoghue more individual approach in Caparo= specific duty situations +Caparonowco-exist

1. Lord Atkins’ Neighbour Principle– the rule that you are to love your neighbour becomes in law that you mustn’t injure him. Must take reasonable care to avoid acts & omissions which can reasonable foresee as likely to injure your neighbour (persons so closely & directly affected by my act that I ought to reasonably have then in contemplation when I’m directing my mind to that act or omission)

• Donoghue v Stevenson–manufacturer/ultimate consumer duty situation + neighbour principle + Macmillan: categories of negligence are never closed

• Home Office v Dorset Yacht- prison trainees escaped under supervision ofthe officer, damaged C’s yacht. Held passage in Donoghuewas astatement of principle &should apply unless there’s a good reason why not.

• Markesinis: neighbour principle is controversial: Atkins didn’t distinguish b/w physical harm (PI/property damage) and PEL. Its status is at best a guideline, not a formula, which could be applied to determine the incidence of liability. Neighbour principle test was based on reasonable foresight of harm &was too wide.

2. Two-stage test

• Anns v Merton LBC- Cs tenants in block of flats, structural defects due to inadequate foundations; council didn’t inspect them properly; held owed a duty to inspect. Test:

1. was there b/w D & C sufficient relationship of proximity or neighbourhood?

2. Ifyes, are there any considerations which ought to negative, reduce or limit the scope of duty or class of persons to whom it’s owed or damages to which the breach gave rise?

3. Three-stage test

• Caparo-indirect infliction of loss + no direct reliance on accounts auditors negligently prepared accounts, Cs bought shares based on them & suffered loss; claim for negligence unsuccessful. Test:

1. Should D have foreseen both C as individual or member of a class+ injury in the kind that actually occurred?

• foreseeability on its own isn’t sufficient

2. Did a relationship of proximity or neighbourhoodexistb/wparties prior to infliction of damage?

• meaning of proximity varies acc to user of term &type of injury

3. Is it fair, just & reasonable to impose a duty of given scope on one party to benefit the other?

• Are there proper grounds for imposing liability on D for the harm?

• Cases dominated by 2 issues:

1. whether certain areas of activity, e.g. work of public authorities/ professionals, warrant imposition of duty of care;

2. whether risk of certain kinds of harm can rightly be ascribed by means of imposition of a duty.

• Marc Rich v Bishop– D, classification soc, approved sea unworthy ship which sank w/C’s cargo. Liability restricted to 0.5mln, C unsuccessfully claimed the rest from Soc. Steyn: proposition advanced would add virtually identical duty owed by classification soc to that owed by ship-owner, but w/out any balancing factors, internationally recognised & accepted – not a just, fair & reasonable proposition

• Sutradhar v NERC - Bangladeshi res. brought claim in negligence against LA for issuing a geological report which allegedly induced Bangl. HAs not to act to ensure drinking water wasn’t contaminated. Held there must be proximity in the sense of a measure of control & responsibility for potentially dangerous situation; foreseeability isn’t enough (here wasn’t sufficient).

• Omissions

• Generally: no prior relationship between parties = omission won’t constitute negligence, however readily foreseeable the harm (Sudrathar v NERC)

• Duty of Care for TP Actions

• Omissions (failure to protect C from TP action): no general duty to protect neighbours from tortuous conduct outside vicarious liability, even if loss or injury readily foreseeable and preventableBUT

• Smith v Littlewoods - D owned disused cinema where vandals set fire, caused damage to other properties; question if D under duty to protect unlawful entry & reasonably foreseeable damage.

Goff positive duty to prevent TPs from acting arises in these cases:

1. undertaking by D – a person who undertakes to perform a task, even gratuitously, assumes a duty of care to act carefully in carrying it out;

2. special relationship – employee/employer, child /mother, occupier/visitor;

3. D has control over TP who causes damage to C – e.g. employee/employer, parent/child;

4. D has control over land or something likely to be dangerous if interfered with

• Calvert v William Hill– pathological gambler; could have recovered b/c of personal undertaking by the branch not to let him in but couldn’t determine that it was the specific cause of C’s loss

• Could say duty taken too far?

• Mitchell v Glasgow City Council[2009] - M& Xneighbours/tenants of Ds. Xthreatened M., Ds met him to discuss,X then attacked M who died. Widow claimed against Ds unsuccessfully. HL didn’t impose a duty on Ds to warn M of the meeting b/c foreseeability is a necessary but not sufficient condition + not fair,...