#5378 - Negligence Law Notes - Tort Law

• Donoghue (1932) – C drank ginger ale produced by D and a snail was inside but undetectable due to colour of bottle, C diagnosed with gastro-enteritis and shock.

Lord Atkins - only injuries caused to a neighbour will be actionable, neighbour is someone so closely and directly affected by act that I ought reasonably to have them in contemplation as being so affected (foreseeability) when I am directing my mind to the acts in question. A consumer is a neighbour of a manufacturer.

• Dorset Yacht (1970) – Borstal Boys escaped supervision and caused damage to a yacht in an attempt to leave the island.

Lord Diplock – whilst person claiming must be neighbour this is not a universal test and will require adaptations and exceptions at times. Officers owed a duty of care to those who they could reasonable foresee would be damaged if the boys escaped their care.

• Goldman (1963)(Aussie) – Tree struck by lightning and so D cut it down but failed to extinguish all embers. Wind picked up and it re-ignited damaging C’s property.

Court – D owed a duty to make reasonable attempts to remove hazards on his land. This arose due to knowledge of hazard, ability to foresee damage and ability to abate it.

Breach of Duty.

The Objective Standard of Care:

• Phillips (1938) – D washed hands and sterilised the piercing instrument prior to use but D suffered an infection anyway.

Court – Jewellers are not bound to take the precautions that a surgeon would but must take the precautions thought necessary by other jewellers.

• Glasgow Corporation (1943) – 2 people carried vat of tea through shop where children were, one of their grips slipped and child was scalded.

Lord Thankerton – court must put self into D’s position at time and consider what they would have reasonably anticipated as natural or probable consequence of acts.

Lord Macmillan – the objective standard eliminates the personal equation and is independent of the idiosyncrasies of the particular person whose conduct is in question. Degree of care varies directly with level of risk.

• Wells (1958) – D fixed his own door handle, when C visited it gave way because of the doors natural stiffness and a strong head-on wind. This caused him to fall and sustain injury.

Court - Standard of care for D was that of a ‘reasonably skilled carpenter’. This was satisfied since some other such carpenters would entertain the belief that inch nails would hold the handle. The standard is not that of professional working for reward, this would be higher.

• Nettleship (1971) – C got insurance and then taught D to drive. D crashed, injuring C.

Court – Duty of care for inexperienced person is that same as that of an experienced person doing the same activity. [Hence objective beyond categorisation as driver, carpenter etc.].

• Mullin (1998) – 2 children were mock sword fighting, ruler broke and blinded D.

Court – When the parties are children the objective test would be what a child would reasonably foresee. Here it was a common game and no prior warning was given, thus reasonable child wouldn’t foresee.

• Mansfield (1998) – D had hypoglycaemia inducing illness and as a result crashed into a shop front. D was unaware of condition.

Court – Refused to enforce objective standard of a non-ill person as to do so would be to enforce strict liability. Standard of care that of anyone unaware of condition and reasonably competent at driving. If D ought to have know then foreseeable and thus negligent.

• Imbree (2008) (Aussie) – Learner driver crashed under supervision of experienced driver.

Court - To have a different standard of care for learner than experienced driver would fail objective and impersonal standard of care. Learners duty same as all reasonable drivers.

Applying the Objective Standard:

• Compensation Act 2006 – section 1 – when considering negligence or breach of stat duty courts may have regard to whether the taking of steps to meet duty would: (a) prevent a desirable activity being undertaken, or (b) discourage undertaking functions in connection with such an activity.

• Daborn (1946) – Ambulance left hand drive with only a single mirror. Warning was painted on back. D signalled turn but neither saw the other so they collided.

Court - reasonable care requires measure of the risk being taken against the consequences of not taking that risk (here not using left hand drive vehicles during the war). Here consequences of not taking risk outweighed risk taken.

Asquith LJ – “if all the trains in this country were restricted to a speed of five miles an hour, there would be fewer accidents, but our national life would be intolerably slowed down. The purpose to be served, if sufficiently important, justifies the assumption of abnormal risk”.

• Bolton (1951) – D injured by cricket ball hit out of ground that had a 17ft fence around perimeter. The shot had been of exceptional distance.

Court – Reasonable men won’t protect against every foreseeable risk. The likelihood of the foreseen harm must be substantial. This reasonable man would just accept the risk.

• Paris (1951) – Workmen blind in one eye lost use of the other when removing a bolt from a rusted car. D hadn’t provided safety goggles despite existing disability.

Court – The reasonable man would consider not only the likelihood of the accident actually occurring but also the seriousness of the harm that might result in making his decision as to take precautions or not. Here the difference between the seriousness of maybe losing one eye and maybe losing all sight was enough to mean reasonable man would have protected.

• Latimer (1953) – D’s factory flooded causing oil spill. D used saw dust to prevent slips as far as his resources allowed it but C was injured whilst carrying a heavy barrel nonetheless.

Court – the cost of precautions and the potency of the risk (likelihood + seriousness) are both to be considered in a reasonableness judgement. Since to close the factory would be very costly and the risk itself was low, the reasonably prudent defendant would have only gone as far as D did.

• Roe (1954) – Phenol contaminated drug through invisible cracks in its container. Cs were paralysed from the waist down.

Court – If medical/scientific knowledge is not such as to enable D to foresee the problem at the time then there can be no breach of the duty of care. Thus here not liable.

• Haley (1964) – Blind man using his stick to navigate tripped over hammer at the end of a trench being excavated. A normally sighted person wouldn’t have tripped.

Court – Duty of care extends to all people likely to us the highway. Blind people were not catered for in the precautions taken by D (fencing).

• Tomlinson (2003) – Public authority erected signs around lake warning of dangerous water but people used it to bathe despite this and council knew. C dived into the lake and was paralysed. D had been advised to plant over the beaches so as to make it less desirable.

Court – Factors to be considered included level of risk, seriousness of harm at risk, social value of activity that causes risk, and cost of preventative measures. Would be an injustice if harmless recreation of responsible people on beaches was prohibited due to a legal duty to safeguard irresponsible visitors at cost to local authorities.

• Blake (2004) – D joined a twig/bark throwing game but struck C in the eye.

Court – In such horseplay the duty will be to take reasonable care not to cause injury. When game inevitably involved physical contact participants have impliedly consented to the risk of a blow to any part of their body. Thus not negligent.

Common Practice:

• Thompson (1984) – Action by C for D not having provided ear protectors when risk known of. No official guidance existed until 1963 and most of the damage concerned was done prior to this. In 1973 ear defenders were requested, they were provided in 1979.

Court – When new information becomes available the employer comes under a duty of care if that information makes it such that a reasonable employer would take precautions. Here all damage done post-1963 could be claimed for as knowledge was available then.

• Quantum Clothing (2011) - the issue was whether hearing loss attributable to exposure to noise levels between 85 and 90 dB(A)lepd was actionable. There was a code of practice.

Lord Mance - where employer acted in accordance with practice, liable only if he knew, or ought to, that it was ‘clearly bad’ or if the area was one where there was developing knowledge about the risks involved and he had acquired ‘greater than average knowledge of the risks’. Such a practise no more than a factor when balancing risks against precautions.

Dissenting on one point he said that just because D has higher than average level of knowledge doesn’t mean he should have to go beyond such a set of standards. Others didn’t address so first instance ruling, that said such knowledge founds liability, stood.

Lord Dyson – Code of practise makes conduct acceptable unless standards required lowered by heavy lobbying of Ds, apathy or fatalism has prevailed amongst those in that field, or instrument has failed to keep up with latest technology etc.

Professional Defendants:

• Bolam (1957) – P suffered fractures as a result of treatment. 2 medical opinions: (1) use relaxing drugs, (2) don’t use drugs unless a particular reason exists. Neither proven.

Court – The mere existence of a contrary view to the one D subscribes to does not result in D being negligent in practicing under his chosen method.

• Sidaway (1985) – D underwent operation but wasn’t warned of 2% chance of...