11 Negligence
11 Negligence
11 Negligence
Definition of tort.
A tort can be defined as ‘a civil wrong’, against an individual or a body corporate which may
consist of either a wrongful act or omission which has not been authorised by law. The basis of
liability in a tort is that no person has a right to injure another or cause damage to his property.
The person who commits the tort is called the ‘tortfeasor’. When a tort is committed, the victim
who suffers has two main remedies available i.e. damages for the harm suffered or an
injunction to prevent future harm. The predominant remedy is damages.
In tort, the aim of the award of damages is to restore the plaintiff in a position that he would
have been had the tort not taken place. In contract, the aim of the award of damages is to put
the injured party in a position that he would have been had the contract been completed or
performed.
Negligence
Winfield and Jolowicz on Torts defined negligence to mean ‘The breach of a legal duty to take
care which results in damage, undesired by the defendants, to the plaintiff.
In order to win a negligence case, the plaintiff (the person injured) must prove the following four
elements to show that the defendant (the person allegedly at fault) acted negligently:
1. Duty - The defendant owed a legal duty to the plaintiff under the circumstances;
2. Breach - The defendant breached that legal duty by acting or failing to act in a certain way;
3. Causation - It was the defendant's actions (or inaction) that actually caused the plaintiff's
injury; and
4. Damages - The plaintiff was harmed or injured as a result of the defendant's actions
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Duty of care
1st Element: Duty of Care - D owed to P a duty of care
a. The burden is on the plaintiff (P) to prove that the defendant (D) owed him a duty of care.
b. The main test to establish duty of care is the ‘neighbour’ principle in Donohue v Stevenson.
The court held that the manufacturer was liable to the consumer in negligence.
In the case of Donohue v Stevenson – Lord Atkin formulated the neighbourhood test i.e.
‘there was a duty to take reasonable care not to injure one’s neighbour’.
i. The test for the existence of a duty owed to the plaintiff is the neighbour principle as
stated by Lord Atkin in Donoghue v Stevenson i.e. the foresight of the reasonable man.
Lord Atkin: ‘You must take reasonable care to avoid acts and omission which you could
reasonably foresee would be likely to injure your neighbour’. (Therefore duty of care is
‘a duty to take reasonable care not to injure your neighbour)
The case of Caparo Industries plc v Dickman (1990) redefined the definition of duty of care
to include 3 elements that is:
a. Foreseeability of damage,
b. Proximity of relationship, and
c. fair, just and reasonable to impose liability.
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There are recognised categories of relationship which give rise to a duty of care automatically:
• driver/passenger
• driver/road users
• manufacturer /consumer
• lawyer/client
• landlord/tenant
• victim/rescuer
• prison authority/prisoner
For other cases which have not been categorized, the test for determining duty of care must be
applied.
Who is a reasonable man? A reasonable man has been describe as ‘the man on the
omnibus’ or ‘the man on the street’ – meaning an ordinary man who is not expected to have
any particular or special skill such as those possessed by doctors, surgeon, lawyers,
engineers, accountant etc.
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Factors to be considered in deciding breach of duty of care
a) State of knowledge.
Would a reasonable man in a similar circumstance as the defendant have foreseen that his
actions would cause the plaintiff to suffer damage or injury?
The answer is, reasonable foresight of a consequence is determined by the knowledge and
experience of a reasonable man in a given circumstance or situation.
In the case of Roe v Minister of Health, the court held that the standard of care is to be
judged based on the knowledge available at the time of the breach.
higher the likelihood of injury, the higher is the standard of care required.
In Bolton v Stone, the claimant who was standing outside her house, in a quiet street, was
hit by a cricket ball from a nearby cricket ground. It was clear that the cricketer could have
foreseen that the ball could be hit out of the ground because in the past 30 years, this had
happened 6 times. The cricket ground had a 17 foot fence and there was quite a distance
from the pitch to the edge of the ground.
The court held that the chances of injury to someone standing where the claimant was so
slight that the cricket club was not negligent in allowing cricket to be played.
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c) The seriousness of the injury
The greater the seriousness of the injury or the more vulnerable is P, the higher is the
standard of care required to be exercise by the other party e.g. if P suffers from some form
of disability that is or should have been known to D, this will increase the seriousness of the
risk of harm to him. Such disability is a factor to be taken into account.
Thus, the young or old, or persons who are sick or handicapped, are vulnerable and may be
more prone to serious injury. A higher degree of care is imposed in such cases.
Held: The probability of such an event was very small, but its consequences were very
serious, his employers, knowing of his disability, should have taken extra care to provide
goggles for him. The more serious the possible damage, the greater the precautions that
should be taken
Where the purpose or object to be attained is sufficiently justified by the taking of the risk, the
defendant will not be liable.
The claimant was a fireman. A woman had been involved in a traffic accident and was trapped
underneath a lorry. This was 200-300 yards away from the fire station. The fire services were
called to release the woman. They needed to transport a heavy lorry jack to the scene of the
accident. The jack could not go on the fire engine and the normal vehicle for carrying the jack was
not available.
The fire chief ordered the claimant and other firemen to lift the jack on to the back of a truck.
There was no means for securing the jack on the truck and the firemen were instructed to hold it
on the short journey. In the event the truck braked and the jack fell onto the claimant's leg
causing severe injuries
The court found that the benefit of saving the woman trapped in the accident was greater than
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the risk of injuring the fire fighters (claimant) by using an unsuitable truck for carrying the
equipment.
e) The practicality of precautions or measures taken to eliminate the risk.
The risk must be balanced against the practicality of the measures taken to eliminate such
risk.
It is not always reasonable to expect that all possible precaution against risk have been
taken. The measures taken to eliminate risk must be weighed against the reasonableness of
the defendant’s conduct.
D owned a factory that became flooded after a heavy rain. The flood water was mixed with
a heavy coolant and this left the factory floor with slippery patches. Despite the defendant
using sawdust to cover the floors and taking other precautions, certain parts of the factory
floor remained untreated. The claimant, who works in the factory, was injured when he
slipped on an uncovered area and he sued.
The court held that the defendant had done all that is necessary to prevent any risk to the
employees and that the slippery patches were clearly visible. The factory was held not
liable.
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CAUSATION
3rd Element: P suffered loss or damage which was caused by D’s breach of duty of care.
Held: The court accepted that the hospital owed the man a duty of care and that they had
breached that duty by failing to examine him. But the court also held that the hospital was
not liable because the breach was not the caused his death. There was evidence to show
that even if he was examined, it would be too late for any treatment to save him. Thus, it
could not be said that but for the hospital’s negligence he would not have died.
BUT FOR TEST
The test simply asks, "but for the existence of X, would Y have occurred?" If the answer is
yes, then factor X is an actual cause of result Y.
"But for" defendant speeding, the car would not have gone out of control, and therefore the
defendant is responsible.
Sometimes a Defendant’s(D) conduct results in a much more severe damage to the Plaintiff (P) than
is reasonably anticipated. The D cannot argue that the P’s injury would be less if the P did not have
an usually thin skull or a weak heart, and this principle is commonly known as the eggshell skull
principle.
Smith v Leech-Brain & Co Ltd Due to the D’s negligence, the P’s husband was burned on the lip by a
piece of molten metal. The P’s husband in fact had a tendency to contract cancer and the burn
caused a cancerous growth from which he died 3 years later. The court held that D was liable, even
though an ordinary healthy person would not have developed cancer in the same circumstances.
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Remoteness of damages
4th element : loss or damage must not be too remote as a consequence of the breach.
The loss or damage caused by D must not be too remote.
The question of remoteness of damage is concerned with whether P can recover damages
for his loss. P can recover damages for his loss if he succeeds in proving that D caused the
loss or damage.
The breach of duty must be the primary or main cause of the damage in order for P to
succeed in a claim for damages. Damages would be considered to be too remote if a
reasonable man would not have foreseen them.
In the Wagon Mound case (see below), the court held that a party can only be held liable
for damage that was reasonably foreseeable.
Overseas Tankship (UK) Ltd v Morts Dock and Engineering Co Ltd – “The Wagon
Mound” [1961] AC 388
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• Caparo Industries v Dickman & Ors.
D, were auditors who acted for a public limited company, prepared the company’s annual
report which showed that the company was financially sound. P, relying on this report
bought share of the company and later mounted a successful takeover of the company.
The accounts were in fact inaccurate. P sued D for negligence but the court held that D was
not liable.
The principles derived from this case are:
i. The auditor of a public company owes no duty of care to a member of the public or
even to an individual shareholder who relies on the audited accounts to make an
investment decision. If a duty of care is imposed this would make the relationship
of proximity to wide and will give rise to unlimited liability on the auditors.
ii. There are three (3) criteria for the imposition of duty of care
• Foreseeability of damage,
• Proximity of relationship, and
• Reasonableness of imposing a duty.
• A relationship of proximity can exist if the maker of the statement knows that his
statement will be communicated to the plaintiff.
• The identified plaintiff is likely to rely on the statement for the purpose of deciding
whether to enter into that transaction.
• A duty of care is not present as the imposition of duty of care will make the
relationship of proximity too wide
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Defences to negligence.
This doctrine holds that a person who knowingly and willingly puts himself in a
dangerous situation cannot later on sue for any resulting injuries. There must be
voluntary consent with full knowledge of the risk by the plaintiff.
The court held that the plaintiffs had consented to the risk. D was not liable as they had
not been negligent not did they allowed the law to be breached over safety procedures.
The plaintiffs were trained personnel and were well aware of the safety measures.
The court further affirmed: Denning LJ, ‘Just as actionable negligence requires the
foreseeability of harm to others, so contributory negligence requires the foreseeability
of harm to oneself. A person is guilty of contributory negligence if he ought reasonably
to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt
himself; and in his reckonings he must take into account the possibility of others being
careless...’
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OTHER DEFENCES
b. Act of God - This is an inevitable accident arising out of the working of natural forces which
is beyond human control and foreseeability. It must be extraordinary and unanticipated. But
if the damage could be related to human negligence, there is no defense of Act of God e.g.
landslides due to heavy rain, but the hill sloped was weaken by human intervention, there
will be not defense of Act of God.
c. Private defence - The right to private defence entitles a person to go to any extent so as to
protect his life, property or a third person. Provided the force used in a private defence
must be reasonable force to repel the attack. Such right should always be exercised in
defence.
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