Negligence

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What is negligence

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Failure to dischare a legal duty to take reasonable care which results in foreseeable harm,loss or injury

It is NOT ACTIONABLE PER SE

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Donoghue v Stevenson 1932

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LANDMARK DEVISION.
-Recognition othat a duty of care could be owed outside contractual relationship
-Categories of negligence 'never closed'
-Lord Atkin's neighbour principle
"You must not injure your neighbour" "You must take reasonable care to avoid cats or omissions which you can reasonably foresee would be likely to injure your neighbour. Persons who are so closely and directly affected by you act that your ought reasonably contemplation as them being so affected when directing mind to the acts or omissions

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McLoughlin v O'Brian 1982

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In this case the C was also able to retrieve compensation for psychiatric harm without physical injury

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Anns v Merton LBC 1978

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Economic loss.
HL said can recover for faulty buidling for economic loss because cannot charge as much as you would be able to charge if the building was not faulty. This was voerruled in Murphy v Brentwood DC 1990

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Benaar v Ketterying HA 1988

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Damages awarded for a negligently performed sterilisation

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Home Office v Dorset Yacht Co Ltd 1970

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Liability imposed on the Home Office for damage inflicted by escaped yuoung offenders

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Caparo Industries v Dickman 1990

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Three stage test developed for establishing a duty of care:
It starts formt he default position that no duty is owed in respect of reasonably foreseeable damage
1. Damage to C as a result of D's rbeach foreseeable

2. Relational proximity ('neighbourhood') between C and D

3. Itis fair, just and reasonable to impose this duty on D not to cause this damage to C

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An incremental test

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Liability only found where a clear precedent exists. This is an effort to take small incremental steps to avoid a sudden influx of cases.

Brennan in Sutherland Shire Council v Heyman 1985-> said it was preferable that law should develop categories of negligence incrementally rather than prima facie dutry of care restrained by by considerations that ought to reduce or limit the scopeof the duty;/ class of person to whom duty is owed"

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Elemets of the tort of negligence

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-Duty (Owed to C by D to take reasonable care)
-Breach (D falls below standard of reasonable care)
-Causation (the breach causes the damage C complains of)
-Remoteness (in the view of the court the damage is not too remote)

Defences:
-Illegality (defeats C's claim)
- Contributory negligence (C ailed to exercise reasonable care themselves. Reduces damages)
-Consent (Defeats C's claim)

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Haley Apellant v London Electrivity Board Respondents 1964

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Affirmed law established in Glasgow Corporation v Taylor 1922. " Measure of care appropriate to inability/disability of the immature or feeble in moind or body is due from other who know or ought to anticipate the scope and hazards of their own operations.

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Fire service dont owe a duty of care to individuals but to the general public. They only owe a duty of care if they appear and make situation worst through negligence.*

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Kent v Griffiths and the Lodnon Ambulance Service and Others 2000

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Alexandrou v Oxford 1993*

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Police alerted burglary at shop. When arrived didnt blieve it occurred. Cu

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Capital & Counties Plc v Hamshire County Council 1997

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Police don't owe duty of care to 999 call however once call is accepted they must act reasoably and not make things worst. Not enough proximity by tending to fire but C could cover damages because D made thigns worst
Fire service turn off sprinlers that went of because fire thus fire got out of control and damged C's stuff.

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Duty in respect of omissions

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- Omission wehre a relationship and obligation to act exists; Lord Atkin in Donoghue v Stevens 1932

-pure omission: Member of the public does not act boy drowning for eg. Lord Hoffman is Stovin v Wise 1996

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Exceptions to the rule of

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omissionsReeves v Commissioner of the Police for the Metropolis 2000-> When D has a high amount of control over C they owe a duty of care which involves taking reasonable steps to avoid the risk e.g. police and prisoner relationship.

Barrett v Ministry of Defence 1995-> Assumption of responsibility. Barret was a polot who got drunk. Colleagues puthim to bed and he choked on vomit. Because of assumption of responsibility minister of defence should've ordered someone to watch him or called ambulance. Leaving him was negligent because of close relationship.

Goldman v Hargrave 1967->Creating a risk. Buring tree fire brigage brought it under control and left. Man didnt pur water left embers 24 hours later fire reignites. Negligent omission for not pouring water therefore he was liable

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Standard of care Blythe v Birmingham Waterworks 1856

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The omission to do something which a reasonable man would do or te doing of something that a reasonable man would not do

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The Reasonable man- Nettleship v Weston 1971

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Reasonable= objective standard.
The question for the court was does a learning driver owe the standard of care of a competent driver or a learner? One of the arguments was that C consented to risk by getting into the car but rejected by CA because didnt expressly agree to run risk because believed was insured.
Learner driver has a duty of care as a competent driver.

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An objective standard- Roberts v Ramsbottom 1980

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Since he retained some limited control he was still liable. Only total unconsciousness or total lack of control would excuse him. Alternatively, D knew he had been taken ill and was therefore negligent in not stopping, even if he did not fully realise he was no longer fit to drive.

Held: D knew he had been taken ill and was therefore negligent in not stopping, even if he did not fully realise he was no longer fit to drive.Not in automative state thus was liable

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An objective standard- Mansfield v Weetabix 1998

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D owners of lorry. Their driver suffered from lack of glucose to the brain. He was unaware of effect on his driving, C suffered damage to their shop when lorry left road on a bend.

Held: The standard of care that driver was obliged to show was that which is expected of a reasonably competent driver. The driver did not know and could not reasonably have known of his illness that was the cause of the accident. Therefore, he was not at fault. His actions did not fall below the standard of care required.

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An objective standard- children
Mullin v Richards 1998

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Children are entitled to a standard of care expected of children (not adult)

D a 15-year-old schoolgirl had a "sword fight" with C with plastic rulers in their classroom. One of the rulers snapped and a piece of plastic entered C’s eye, causing permanent damage.

Held: Teacher not negligent but both C and D had been negligent. There was insufficient evidence that the accident had been foreseeable in what had been no more than a childish game. Judge reduce damage to 50%

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An objective standard- D's profession

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Professionals are judged according to the standard of others in their profession.

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Bolam v Friern HMC 1957

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McNair LJ The test is the standard of the ordinary skilled man exercisng and professing to have that skill."
Question court should ask is did D fall below what wuold be reasonable standard of practice within that profession

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Bolitho v City of Hackney 1998

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Patrick 2 years old with severe cough. Admitted to hospital and had 2 episodes when stopped breathing temporarily.Nurse called dr to have look at child and both did not realise that the beep was not working. The 3rd time stopped breathing Patrick suffered brain damage then death. Action for vicarious negligence. Went HL woman 5 experts who argued unaccapetable Dr had 3. Alleged dr owed duty of care which was breached. Dr said had she shown up she wouldnt have thought incubation was necessary.
Held: Dr's failure wasnt the cause of death.
Brown Wilkinson qualified Bolam. Where responsible body of professional does not stand up to scrutiny. . evidence must be logical and make logical sense. (Brazier and Miola)

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What is taken into account when determining the appropriate level of standard of care

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-External factors
-Likelihood of harm occuring
-Seriousness of harm
-The relative cost of precautions
-'In all the circumstances of the case'
-Emergencies

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Likelihood of harm occurring

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General rule= amount of care required is proportionate to the probability of harm occuring.

Glasgow v Muir 1943->More likely harm wll occur the higher the level of care demanded of D.

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Likelihood of harm occuring- Bolton v Stone 1941

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Lord Oaksey: "Standard ocare in negligence is standard of an ordinarily careful man. But even a careful man does not take precautions against foreseeable risk . . . He takes precautions against risks which are reasonably like to happen."

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Whippey v Jones 2009

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Before holding that a person's standard of care has fallen below objective standard the courts must be satisfied a reasonable man in D's position would contemplate injury wsa likely to follow from D's acts or omissions. Remote possibility of injury is not enough. Has to be sufficient probability of injury to lead a reasonable man to anticipate it.

Held: CA said injuries not directly because of dog.It was not foreseeable that D's Great Dane would knock over C because D would only unleash dog if no one was around. D did not breach standard of care becasue "the remote possibility of injury not enough"

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Seriousness of harm Paris v Stepney Bourough Council 1951

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Where the risk is of serious injury it becomes more reasonable to expect more robust steps to be taken to ensure safety.

Employer did not provide goggles for one eyed man-> man's eye damaged thus seued in negligence. It was held that D breached standard because blindness was a foreseeable consequence.

Test = what preceautions would ordinary reasonable and prudent man take. This involves the common everyday scope but not restricted from involving the foreseeable consequences of an accident and seriousness for person whom duty of cared is owed. . sometimes necessary to take account of consequence not risk.

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The relative cost of precautions

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Reasonable man only expected to go to certrain lengths in order toavoid an accident. The law will not impose an sbolute dutyt ake al possible precautions merely reasonable ones.

Bolton v Stone 1951-> Cricket ball landed on man's head. C argued fence raised.

Held:No breach of duty. The likelihood of harm was low the defendant had taken all practical precautions in the circumstances. The cricket ground had been there for 90 years without injury and provided a useful service for the community.

Lord Radcliffe said: A reasonable man would not have felt himself to abandon use of theg round or to increase the height of his surrounding fences when considering the chances of the accident happening again.

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In all the circumstances of the case

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The necessary standard of care does not exist in a vaccum. Reasonable ness is considered taking into account all the circumstances of the case. The lcase law involves sporting events/emergencies.

Watt v Hertfordshire CC 1954->
The fact that D is performing a socially useful function might help to relax the standard

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Emergencies

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Generally court will be sympathetic to the fact that one is reacting in or acting an emergency situation.

Watt v Hertforshire CC 1954

Kent v Griffiths 2001-> Court held duty of care owed by ambulance service. If answer 999 call must show within reasonable time (ambulance only)

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In all the circumstances of the case- sporting cases

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Condon v Basi 1985-> Where "D failed to exercise degree of care which was appropriate in all circumstances or acted in a way which C can't be expected to have consent. . there is liability" - Sir John Donaldson
Lord Atkin said the approach to the standard in sport applied to the particular sport. D must be acting in a way in which C cant have consented. There is no specific standard of care that govers sport players especially whent he rules acknowledge physical contact. Degree of care has to be :
(i) appropriate in all circumstance (court might hear rules)
(ii) on fact C couldnt have consented to that behaviour
-There is room for rpecedent within sport where similar injuries occur.

The fact that D is performing a socially useful function might help to relax the standard

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Establishing breach-proven fault
Abrath v Ne Railway 1883

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"He who affirms must prove" To establish breach 2 questions considered:
1. What was required standard of care in the circumstances of this case ? How ought D to have behaved.
2. Did D's behavious fall beneath that standard? THis is a question of fact based on the evidence put before the court

D must show on the balance of probabilities that D's actions fell below the standard of care required. Where D professes a special skill the 'Bolam Test' will apply.

Given the scenario of r/ship where duty is already assumed the question is wehther duty of care has been discharged.

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Civil Evidence 1968 sec 11

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Where D convicted of criminal offence it is seen as strong evidence that he is also guilty of a civil negligence. Where applies this means burden of proof shifts to D to show that he wasnt negligent.
In Wauchope v Mordecai 1970*-> The Court of Appeal did not suggest that the burden cast on the convicted defendant was a specially heavy one

RES IPSA LOQUITUR (The thing speaks for itself). This principle is described as the common sense approach to facts. May be developed when evidential difficulties render it difficult for C to establigh negligence.

Scott v Katherine Docks 1865-> C must show reasonable evidence that injury wouldnt have happened without negligence. D must have been connected towhatever caused the injury. RIL shifts burden of proof from C to D.
Lord Griffiths said "It is misleading to talk of the burden of proof shifting to the D in a RIL situation. The burden of proof with C.

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Establishing breach-proving fault- RIL

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The thing which caused the injury bust be under control of D/ D's servants. The accident must be such that it doesnt happen if those who have control used proper care. The court decides whether inference of negligent liability is rebutted by the evidence of C as a whole. If D is able to show reasonable care was exercised although cause of accident=unknown D will not be found liable (J v North Lincolnshire CC 2000)

Ward v Tesco Stores Ltd 1976-> C slipped on yoghurt left on floor. Judge said burden of proof on D to explain how yoghurt on floor. Tesco said emply people to check aisle and W dropped own yoghurt. Prsence of yoghurt something D shouldhave known and attended tobecause could inhure customer therefore duty of care. A D if can prove that took reasonable care can be let off. But in Te4sco couldnt prove that had a system e.g. having footage of someone walking up and down aisle.

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Causation

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Where D owes a duty of care that has been breached then C must prove a direct link between damage and breach. Burden of proving causation lies on C in both factual and legal causation.

C must establish:
(a) That it is more likely than not that D's begligence that caused the injury, loss or harm of which he complains
(b) That the injury/loss/damage is not too remote a consequence of D's wrongdoing so that it is just for D to beheld legally responsible.

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'But for' test

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It is determined whether D's breach has caused C's lost by asking:
If the damage would not have occurred but for D's breach of duty, then D's breach is the factual cause of the damge.

Barnett v Chelsea & Kensington Hospital Management Committee 1969-> Man went to hospital becasue felt sick. Dr due to attend but stayed in bed and told man to go home if still feeligng sick. Man discharged a 5 hours later died.
Held: Because no proof that damage would not have occurred but for hospital's negligence. Also because there is no antidote man would have died anyway.

"But for test does not provide a comprehensive or exclusive test of causation in the law of tort. Sometimes it gives too restive and answer as in Fairchild v Glenhaven Funeral Services Ltd 2002 More often it gives tooo expansive an answer. Satisfying the but for test is a necessary. . . condition of establishing causation" - Lord Bingham

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Proving causation- Single cause of damage

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Chester v AFSHAR 2005 "Policy and corrective justice in favour of vindicating the patient's right to know. . . The result is in accord with the most basic aspirations of the law to right wrongs.Decisions by HL recflects the reasonable expectations of public" - Lord Steyne

Where but for test doesnt apply the courts can conceive their won idea of what will achieve justice in a particular case.

Paul Davidson Taylor ( a firm) v White 2004-> CA decision. W failed to pay solictor because believed they failed to advice on something they should have in counter action . W's action failed because couldnt prove suffered loss because of the acts of D even if received advice he wouldnt have acted differently and would have resulted to the same cause.

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Proving causation- Multiple causes

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If there are multiple causes there are several doctrines deal with factual scenarios:
1. Material contribution to injury doctrine
2. The material contribution to ; the risk' of injury doctrine
3. Multiple discrete causes
4. The Fairchild Exception

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The material contribution to injury doctrine

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General rule= loss or damage must be proven on the balance ofprobabilities to have been caused by D's negligence.
First principle : MATERIAL CONTRIBUTION TO HARM DOCTRINE- If there are two separate causes it is enough if one of arouse from fauld of D. Claimant does not have to prove cause was enough to cause damage by itself.

Bonnington Castings v Wardlaw 1956-> Lord Reid said: It apepars that the source of his disease was dust from the from both sources therefore real question was whether the dust form the swing grinders materially contributed to the diesase." Swing grinders contributed because they aggravated the diesase by increasing the amount of dust. The hammer C looked after not duty from employer but swing dust was and thus Dwas in breach of statutory duty to have an air extractor in place. However it could not be said that but for D's negligence C would suffer harm. HL-> necessity for C to prove breach caused or materially contributed to injury. This departs form 'but for' to contribution. Wh

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The material contribution 'to the risk' of injury doctrine

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D may be responsible for two possible causes of C's harm but where only one is negligent. Sometimes the condition is not cumulative caused and in such a cause D may have breached his duty of care but cannot be proved that C caused damage.

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The material contribution to the risk of injury doctrine- McGhee v National Coal Board 1972

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There is no distinction between materially increasing risk disease will occur and making a material contrubition to its occurrence.

"Legal concept of causation is not based on logic or philosophy. Practical way in which ordinary man's mind works in everday life. Form braod practical viewpoint no substantial difference between saying D did matierally increased the risk of injury and what the D did made a material conribution to his injury - Lord Reid

Decision in Mcghee C friendly.

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Multiple discrete causes- Wilsher v Essex AHA 1988

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Where the claimant’s case is based on proving a material contribution to the
damage, the defendant is responsible only for that part of the damage to
which his negligence has contributed.
Premature baby. Medical treatment because sick. Staff need to monitor blood oxygen. To do this needed to put monitor into artery but negligently put it into vein. Was give too much and suffered illness that made him blind. It was a fact that there were several factors which may have caused C to go blind one of which was too much oxygen.
HL- Action failed on groud of causation. It could no be proved that dr's act was the sole cause of the child's blindness.

Differs to McGhee because brick dust only cause for skin disease whereas multiple possible causes for blindness.

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The Fairchild Exception - Fairchild v Glehanven Funeral Service 2002

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IF (1) employed at different times for different periods by A and B (2) Both are subject to duty to take reasonable care or measure to prevent C inhaling asbeston dust because of known risk that it may cause mosthelioma (3) A and B breach of that dity in realtion to C during periods of C's employment he inhaled excessive quantities of asbestos dust and (4) C us

The crucial issue on appeal is whether in the special circumstances of such a case principle authority or policy requires or justifies a modified approach toproof of causation . . I am of opinion that such injustice as may be involved in imposing liability on a duty-breaking employer in these circumstances is heavily outweighed by the injustice of denying resress to a victim" - Lord Bingham, Fairchild 2002
Meaning of joint/several/joint & several and proportionate liability: "The answer given by the Roman jurists was taht you hold them allliable and let thems ort out the appointment of liability between themselves, And that was the answer we gave

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Sienkiewicz v Greif (UK) Ltd 2011
http://www.out-law.com/page-10535

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Extended fairchild exception to get D who was liable for small proprtionate. Greater exposure was non negligent therefore not before court. Court wanted to limit the scope of Fairchild. It was said that the area where mother lived increased her risk by 80%. D said because only one negligent source C doesnt have the same evidenciary difficulty as Fairchild there but for test applies in which D couldnt be liable unless they doubled the risk. It was calculated that the risk was increased only by 18% therefore the action should fail. If risk is more than de minimis causation proved but it was held that the greater cause = the atmosphere
Uk Surpreme Court confirmed test of material contribution to the risk of harm (McGhee/Fairchild) applies in all mesothilioma cases and that "material contribution to risk" is anything more than de minimis. This outcome is favourable to Cs imposing a heavy burden on Ds who have exposed the C to a relatively small quantity of asbestos

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Compensation Act 2006

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SEE STATUTE.

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Loss of Chance

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C must prove his/her case on the balance of probabilities.

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Hotson v East Berkshire Area Health AUthority 1987

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C aged 14 clumbed tree, fell out injured hip. Wasnt correctly diagnosed until 5 days later. This resulted in loss of blood which made him crippled. Action in vicarious liability. Hospital admitted negligence
HELD: HL held issue of causation because damage was going to happen inevitably.

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Gregg v Scott 2005

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Dr missed C's lung cancer becasue said it was bening. Treatment delayed 9 months before correctly diagnosed. Chances of surviving reduced from 10 years by 25%/ CA applied Hotson C couldnt establish dr caused shortage originally because C's chance of surviving was never over 50%. HL Q of whether Fairchil applies. THey said o because would open flood gates to allow any missdiagnosis.

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Hussain v Bradford Teaching Hospital NHS Foundation 2011

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Surgery delayed 3 days and in time worstened quickly same condition causes chronic pain.
C argued that may have made a good recovery.
HELD: 4/5 Expert evidence indivated on the balanceof probabilities this wouldnt have occured.

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Breaking the chain of causation

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If an even breaks the chain of causation D is only liable for damage up to this event. A novus actus interveniens. If the second is not an "intervening act" D is laible for all the damage which results from their original tort.
PROBLEM: How to decide when the second cause is a novus actus. The more unreasonable and and unforeseeable the more likely= novus actus.Therefore it can be said that to = a novus actus there are two kinds of events:
Unexpected/Natural
Unreasonable/Foreseeable act of 3rd party

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Acts of the claimant
McKew v Holland and Hannen and Cubitts 1969

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In some circumstances C's failure to take care not to exacerbate an injury caused by a breach of duty on the part of D will be regarded as a novus actus interveniens. If C's action is sufficient to break the chain of causation then contributory negligence will reduce thelevel of damages.

C injured at work and employers were liable. The damage=knee would spontaneously give way. Went to see flat, on staircase knees gave way thus C tried to jump the distance and shattered knee.
Held: Employer liable. HL said unreasonable to hump stairs. Not directly fault of employer. Damage resulted wasnt foreseeable. But if taken care and was injued sort of damage would be foreseeable and D wouldve been liable. D must have been the direce cause without negligent act of C.

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Baker v Willoughby 1970

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C sued driver because injured leg. Before trial C was in armed robbery and was shot in leg and had to have leg amputated. HL held robbery wasnt novus actus and D was responsible for original loss ofuse ofleg for rest oflife. One of the law Lords argued that consequence of original accident obliterated by 2nd bigge consequence therefore NIV. But Lord Reid said that in 2nd accident didnt leave him in less peain etc therefore he couldnt go uncompensated.
CONFINED TO OWN FACTS.

Jobling v Associated Dairies 1982-> Mr Jobling, a butcher, slipped on the floor at his place of work due to his employers negligence. He injured his back which caused him to reduce his earning capacity to 50% of what it was. He then developed an independent back condition which was unrelated to the injury which left him unable to work. The trial judge applied Baker v Willoughby and held that the claimant was entitled to recover damages beyond the onset to the back condition. The employer appealed.


Held:

The House of Lords dis

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Robinson v Post Office 1974

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Post office technician slipped because of oil on ladder and consequently there was damage to shin. GP suggested tetnus shot. GP tested and no reaction therefore administered full dosage. 9 days later patient acted severel and suffered brain damage. This is a rare reaction. Judge found PO was negligent and GP was not because even if he waited longer when gave half dosage the dmaage was going to occur. PO appealsbecasue not foreseeable damage of tetnus shot but there was no link. Rejected on 3 issues:
-Didnt cause material damage adminstration of tetnus shot was not NIV because GP was no negligent and what GP did, did not cause the damage.
-Behaviour was not unreasonale.
Foreseeable that if oil gets on a ladder someone is going to slip and be injured like C. The court specifies types of injuries. ALso damage would have occured if he went to any GP.
-"Thin skull rule" -. Must take C as you find him. Found huim with bad reaction

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Intervening Natural Event

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A supervening natural even may but only rarely will constitute a NIV

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Carslogie Steamship Co v Royal Norwegian Government 1952

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C ship damaged in collision with other ship. SHip was being brought back toport when was caught in storm and was damaged more. D were no fully liable ofloss of profit because natural cause. Only liable up until struck by lightening

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Corr v IBC Vehicles Ltd 2008

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C part of production line of car manufacturers. Ear sliced off but was nearly decapitated therefore suffered psychiatric injury. Dperession lead to suicide. C's wife brought action becasue tort against husband. It was argued suicide was NIV. HL held that it wasn't NIV because the employer was the driving force behind it. It wasnt voluntary or an informed decision. it was the result of a man suffering depression so impaired ability to make sound decisions due toD's tort.They said it was not fair to hold D liable for suiced yet not fair not to do so. Suicide was held ot be foreseeable and in the scope

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Remoteness of damage/ Legal Causation

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Test for remoteness derives from Wagon Mound #1 1961
D responsible for ship in harbor. Oil was negligently spilled into water and mvoed to next whard Wealding going on ignited oil and wharf/ships damaged. Went to privy counvil.
HELD: Damage was too remote. Reasonable personw ouldnt ahve foreseen damage becasue oil on water= hard to ignite. Damage by oil foreseeable not damage by fire was not.

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Wagon Mound Mound No 1 1961 Contd

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The damage must be of a kind that is reasonably foreseeable.
Recognised foreseeable not only element. Once it is establishe dthat damage is foreseeable D is liable for the full extent of the damage.It is immaterial that C sufers toa much greater extent than D may have anticipated. In cases of personal injury it is less likely that the damage would be "too remote" than in property damage

Foreseeability in terms of remoteness one is considering compensation not culpability.

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Smith v Leech Brain 1962

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It is also clear that D need not have anticipated the exact sequence or combination of events resulting the relevant damage. In other words D is liable for extent of harm even when harm is more than expected.
C received minor burnin injury became cancerous and C died.Held D liable for type of damage and the extent. Rule applies when original minor injury foreseeable.

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Hughes v Lord Advocate 1963

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Other cases are difficult to reconcile in this area. Much depends on how narrowly or widely the courts wish to define the kind of damage.
Manhole open and had been covered by and there were paraffin lamps to warn about hole. Lamp fell into hole and there was an explosion. C fell in too and suffered. PO responsible for hole. Held damage was remote but it was foreseable damage because burns were foreseeable

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Tremain v Pike 1969

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D allowed farm to be infested with rats. C= farm worker who contracted bile disease from rat urine. Sued for negligence.
HELD: Harm was foreseeable was a rat bite but not bile disease therefore no compensation.

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Jolley v Sutton London Borough Council 2000

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Boat left on grass owned by local council for 2 years Boy and friends trying to repair boat and jacked it up. Boat landed on boy and he became a paraplegic. Council aware of boat and were held to be liable under OLA. Under Act you are liable for what goes on on your property and if one becomes injured because of smoething on the face of your premises you are liable. Premises is applied widely. Bring ation against negligence/ OLA.
HELD: Council owed duty of care and damage was foreseeable.

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Economic loss
Ultmares Corp v Touche 1931

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Restrict liability for pure economic loss

Protected C from economic harm in rare specific instances. How/whether C can recover negligently inflicted economic losses within specific economic torts.

UC v T said the law should seek to avoid liability in an interdeterminate amount for an indeterminate time to an indeterminate class.

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pure economic loss

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PEL= financial loss in the absence of any harm to person or property. It is generally irrecoverable in negligence because:
-public policy factors (floodgates argument)
-economic interst are best served by contract law rather than tort

If D negligently dmages C's property and a third party X suffers financial loss as a result the law is clear that in general X has no cause of action in negligence against D.

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Cattle v Stockton Waterworks Co 1875*

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C wanted to build tunnel. D waterwork company and there was a leach which caused a delay. C sued but was held no cause of action in negligence.

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Negligent Misstatement

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Typical example= A tells B something upoin which B reaonsably relies to his cost.
Hedley Byrne v Heller 1964-> The decision introduced the tort of negligent misstatement.Bank asked other bank for credit record. D's bank gave favourable record over phone and in writing. C relied onrecord and loss money.
HELD: The court found that the relationship between the parties was "sufficiently proximate" as to create a duty of care. It was reasonable for them to have known that the information that they had given would likely have been relied upon for entering into a contract of some sort. This would give rise, the court said, to a "special relationship", in which the defendant would have to take sufficient care in giving advice to avoid negligence liability. However, on the facts, the disclaimer was found to be sufficient enough to discharge any duty created by Heller's actions. There were no orders for damages.

The HL dismissed the appellant's appeal on the sole ground that D's reference carried a disclaimer "CO

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A special relationship- Hedly Byrne v Heller 1964

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In Hedley Byrne HL emphasised need for special relationship between the parties akin' or 'equivalent' to contract in order to support a tortious duty of care.

The less a relationship looks of a contractual type, the less likely the courts are to impose a duty of care.

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Voluntary assumption of risk- Her Majesty's Commisoners of Customs & Excise v Barclays Bank Plc 2007

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"Involuntary nature of the bank's involvement makes it impossible to regard situation as one akin to contract thus difficult to mspeak of bank as having voluntarily assumed responsibility for task in relations it was allegedly negligent let alone responsibility towards the Commisioners for the task" - Lord Mance

Traditional contract explained on basis that obligations arise by operation of law whilst contractual obligations assumed by the consent of the parties.

Hedley Byrne principles extended particularly in relation of the provision of services. Hedley Byrne emphasised importance of an assumption of respnosibility on D's part. Occasionally interprested this as a separate basis for attribution of a duty of care.

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Henderson v Merrett 1995

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C sufferd substantial losses in 1990ss because D Barclays bank had greezing order on account and were not allwoed to let money out of account. Argued once freezing order was received it wasa responsible for moneyloss. HL held that on fact they was no responsibility because it was not voluntary.

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White v Jones 1995

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2 sisters out of father's will. Before death made up and father wanted to revise will. Issued instructions to solicitor and then died. Solicitor failed to amen will. Went to HL and it was held that economic loss was caused due to teh solicitors negligence (i) R/ship (ii) Solicitors assumption of responsibility. It was not aneglgient misstatement is the extension of Hedley Byrne principle.
HL recognised solicitor acting for testor owes duty of care to potential beneficiaries a tortious remedy when privity (relation between 2 parties that is recognised by law e.g. blood,lease or service) denied contractual so strong that willing to push aside factual differences with Hedley Byrne hold solicitor's assumption of responsibility to client should be demed in law to exted to beneficiaries.

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Reasonable reliance

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"Reliance by customer is relevant to whether assumption of responsibility and essential to causation" - Tuckey LJ

Knowledge of adviser in relation to purpose for which statement put important: Smith v Bush 1990-> Valuer who values a house for purpose of a mortgage knowing mortgagee rely and mortgagor rely on the valuation knowing purchaser mortgagor paid for valuation under a dity to exercise reasonable skill and care - Templeman

Spring v Guardian Assurance 1995
Held: D reached conclusion he put in reference wrongul and he owed duty of care to former employee and it had been breached. Thus employer owes adult of care when giving a regerence- liability in negligence undeservedly unfavourable reference results in financial loss to subject.

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Defective products or buildings

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Person who provides house evaluation should know its relied on by bank/ prospective buyer therefore should take reasonable care in the evaulation.

Junior Books Ltd v Veitchi Co Ltd 1983->High water mark case. Building company told by C to subcontract D to do looring. It was poorly done and had to be re done. Whils thtis was happening factoru shit and C lost money. No contract between C and landowners therefore sued in negligence. This decision (which most agreed was wrong) wasnevertheless justified by HL as an example of a Hedley Byrne assupmtion of responsibility.

Murphy Brentwood DC 1990-> C bought house and over few years cracks appeared because foundation was made poorly therefore the market value went down and C sued council.
Held: That the faulty foundation cant be considered as property damage becasue wasnt smoething that was necessary to fix. Walls weren't falling etc therefore no recovery allowed.
The inflictiof physical injury to the person or property another universally requires to be jus

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Wasted investment- Caparo Industries v Dickman 1990

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Capro bought shares from company in which Dickman was the director. They did so in reliance on audit report that siad company was making healthy prfot. Bought lots of shar audit report should shown a substantial loss of £400,000
Held: that there was no duty of care owed because of proximity requirement. Where statement put in general circulation and it may be relied on by strangers o hold maker of statement on duty of care for ay purpse to which stranger might rely on it subjets them to unlimited duty of care liability

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Actions for pure economic loss may be

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-Where ther eis rpecedenec where case is factually similar topreviouscase
-When the Caparo Test suggests that duty of care is owed in your case
-Rely on Hedley Byrne

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Economic Loss (consequential)

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Where financial loss occurs as secondary consequence of personal injury D is liable in respect of losses which are direct consequence of the physical harm.

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Spartan Steel v Martin & Co 1973

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D cut elecricity capable taht was supplying C's factor. No power 14 hours factory closed they lost money. Sued D in negligence becasue:
- economic loss because profit they could've made on steel
-loss of steel itself (property damage)
-profit would've made had factory been in function.
HELD: D was negligent and damaged property was recoverable because consequentialist economic loss. Claim for anticpated lost profit was pure economic loss therefore not recoverable.

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Damage must be to property in
which C has proprietary Interest (full or partial ownderhip of any kind of property)

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Where C suffers economic loss directly consequential upon damage to property he will be unable to claim if he had no proprietary interst in the property affected.

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Aliakmon 1986

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C products stowed irresponsibly. Sued for pure econmoic loss.
Held: Duty of care owed/berached HL argued that economic loss that was consequential to own property. Steel was owned by 3rd party. So D couldnt recover damages. TYhis is a case in which tort and contract come together. Court doesnt allow damages where C couldve protected self contractually and failed to do so. Stapleton argues that there is a worry of people relying on tort when they should've protected themselves contractually.

C must have had either the legal ownership possessory title the property at the time when the loss or damage occurred (Lord Brandon)

C claimed in respect of finacnial loss resulting from damage to the property of a third party. Howver, C could have negotiated to provide direct contractual protection against such loss.

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There must also be foreseeable proximity etc

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Proximity is still required between D and C to impose a duty of care: Muirhead v Industrial Tank Specialties 1985-> C=fishmonger. Bought a lot of lobsters in summer planned to hold until xmas where price went up. Kept in oxygenated tank in which punp out. C went after manufacturer for economic loss for lobsters and property dmage. CA said can recover damages for pure economic loss if close proximity and where puchaser has put relance on manufacturer instead of eprson who sold lobster and this case wasnt in this category. Damage for fish was reasonably foreseeable by manufacturer therefore they were liable for economic loss.

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Psychiatric harm

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Types of damage courts reluctant to reward in relation to psychiatric injury less actionable than physical injury. There has been medical skepticism.

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Psychiatric illness resulting from shock- Dulieu v White 1901

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" A reaction to an immediate and horrifying impact resulting in some recogniseable psychiatric illness" - Lord keith

C able to recover damages stemming from actual physical injury reasonable fear or apprehension of danger to physical safety.

C's husband owned a pub. Van crahsed into pub abd C sufferd shock and went into labour 2 months later. Bodily harm suffered as a result of shock. C wanted compensation because believed her child would be born an idiot as a result of shock.
HELD: Fright not a cuse of action.Too remote. But held shock that results in physical damage is actionable

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The Modern Law

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Shaped by historical prejudice that psychiatric injury should be less actionable than physical injury. Several factors constraining recoverability of psychiatric harm have emerged.

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What is psychiatric injury?

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Harm must be medically recognised psychiatric illness. Emotional reactions doesnt = damages but can lead toother physical or psychiatric conditions which ARE actionable.

Simmons v British Steel Plc 2004->D, the steel company that employed C. C fell and hit his head at work. He suffered depression and a pre-existing skin disease flared up, not because of the original injury “but from his anger at the happening of the accident” (lack of apology or support following the accident, and failing to prevent the accident when warned of the danger).

Held: C was entitled to compensation for the consequences of the accident and not just for the physical injuries.
C’s anger was neither de minims nor an intervening act.
C was “a primary victim” according to the classification in Page v Smith (1996).

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Grieves v FT Everard & Sons 2007

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10 C developed scarring on inside of lungs because of asbestos.They were benign but G argued so woorried that would develop illness that became psychiatrically unstable. It was held that it was not reasonably foreseeable because medical evidenec suggested that scarring wouldnt necessarily result in asbestosis or increase risk of it. Employer's breach not reasonable cause.

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Hicks v Chief Constable of South Yorkshire Police 1992

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HELD: That psychiatric injury not normal emotions e.g. grief, fear etc not possible to recover. Fear of impending death not actionable.

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What are the two kinds of psychiatric victims?

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Primary and secondary victims. Distinction made in Alcock v Cheif Constable of South Yorkshire Police 1992-> "Broadly C's divided into two categories: one in which injured party was involdved mediately or immediately as a participant and those who were no more than the passive and unwilling witness of injury caused to others" - Lord Oliver

However categorisation is a concept that can still be developed in different factual situations. In other words the courts can expand the different meaning if need to.

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Primary victims

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They must be in the zone of danger. The one whois physically involved in even that is horrifying or teriffying incided after which they go on to sustain psychiatric injuries. C must have suffered injury in the form of a recognised psychiatric illness. - Page v Smith 1996

Damage to C in the form of injury must have been reasonably foreseeable by the D.

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Page v Smith 1996

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C in car accident, Hours after suffered ME and couldnt go back to bed.Judge said he was prone to hysteria. No one physically injured (to point where there was not even bruising around the seat belts). No fear for life or lives of others. Page acted naturatlly and exchanged insurance details. Car was worth so little not worth repairing. Facts didnt match previous cases of psychiatric injury and therefore said C shouldnt succeed. However it ws held personal injury was foreseeable. Doesnt matter whether physical or psychiatric

"No justification for regarding physical psychiatric injury different kinds of injury. Established the D under a duty of care it doesnt matter whether the injury sustained is physical psychiatric or both." - Lord Lloyd

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Corr v IBC Ltd 2008

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Developed PTSD after having ear cut off. Had problem with balance and eventually committed suicide. Wife could bring action under Law Reform (Miscellaneous Provisions) Act 1934. Held Vauxhall had duty to prevent physical/psychiatric harm and C wouldnt have acted the way he did but for the breach tehrefore suicide wasnt outside the scope of foreseeability. D argued was contributory negligenct but this argument was rejected
Reasoning in Page applied. HL held psychiatric illness equally as foreseeable as a type of harm as physical injury.

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Law Reform (Miscellaneous Provisions) Act 1934

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1. Effect of death on certain causes of actions. (1) Subject to the provisions of this section on the death of any person after the commencement of this At all causes of action subsisting against or vested in him shall survive against for the benefit of his estate.

G

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Grieves v FT Everard & Sons 2007

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Tried to argue D's negligene put him at risk of eveloping physical injury therefore should be treated as primary victim.
HELD: He was secondary. To allow claim it would extend principle to apply to an eventhat hasnt happened.

To allow C's claim would be an unwarrabnted extension of the principle in Page to apply it to PSI caused by an unfavourable event which had not actually happened.

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W & other v Essex CC and another 2001

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Had own children and wanted to foster children but didnt want child who had been accused of sexual abuse. D abused own children and parents suffered psychiatric injury therefore brought action against local authority
HELD: Where psychiatric injury suffered by parents flow from feeling they brought the sexual abuser and abused together my be classed as primary victims.

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Secondary victim

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Secondary victims suffers pure psychiatric harm in cicrumstances where he is "no more than a passive and unwilling witness of injury caused to others" - Lord Oliver in Alcock

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McLoughlin v O' Bien 1983

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Provided the foundations of the current approach to secondary victims.

There must be sufficient proximity of time and space to catastrophe.

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To be compensatable in damages for psychiatric injury

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Essential to establish duty is directly owed to C by D depending on reasonable foresseability of damage of the type which has occurred.
-Oreximity of relationship between C and D (White v Chief Constable of South Yorkshire 19

To establish proximity a secondary vicitm must show (a) close tie of loev and affection to victim (b) cliseness in time and space to the incident or its aftermath (c) perception by sight or hearing of the even or its aftermath- McLoughlin v O 'Brian 1982

Extent of thehorror involved in the incident, in the case of the unrelated but proximate bystander it is recognise by some of the Lords the possibility of a particulary horrific event that would shock the nerves of anyone

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Alcock v Chief Constable of South Yourkshrie 1991

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Refined rules established in McLoughlin. 16 victims suffered PSI as result of hearing and seeing Hillsborough disaster. CC vicariously liable but argued didnt owe duty of care in relation to psi. HL recognised endless ties of loev and affection. Where such ties foreseeable suffer PSI they are in peril thereofre refined basis to :
(a) Close ties of love and affection between C and V presumed in these circumstances:
- husband and wife/parent and child
-fiance(e) Lord Ketih only
THERE IS NO PRESUMPTION BETWEEN SIBLINGS OR OTHER RELATIVES. -> Law Commission Report 249 on Liability for Psychiatric Illness 1998 recommended the inclusion of siblings
PROBLEMS: Widely differing views on framework e.g. shock requirement and range of people who should be eligible to claim.

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Proximity to the accident- Immeidate aftermath how far does it extend

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Must show proximity (time/space) to C to event aftermath includes 1-2 hours
McLoughlin v O Brien 1983 A woman claimed compensation from the driver of a car which had caused an accident in which one of her children was killed, and other members of her family badly injured. Although the claimant was not present at the accident, and therefore not in any physical danger, she sufferedpsychiatric injury as a result. The HouseOfLords held that, where it was reasonably forseeable that psychiatric injury would arise from an event, the person who caused the event had aduty of care in respect pf psychiatric injury.

6-8 too long in Alcock.
W & others v Essex CC and another 2001 (possibl yone month okay)In sexual abuse no need to happen upon the immediate aftermath

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Immediate perception and shock

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A sudden direct appreciation of a shocking or horrifying event

In the Hillsborough tragedy cameras were broadcasting genearlly but suffering of recogniseable victims not pissible in Alcock there those watching couldnt claim they sifferd through own unaided senses. HL held that if victim witnesses something in a circumstance that would shock or horrify anyone then they may be able to recover as an approximate bystander

Hicks-
North Glamorgan NHS Trust v Walters 2002->**

Shocking event must be perceived through C's unaided senses
McLoughlin v O Brien 1983-> speech of Lord Wilberforce

Alcock v CC of South Yorkshire -> Must witness scene with own unaided sense unless atching live broad cast where it is obvious that the victims have died.

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Rescuers

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If in danger zone and expose self to danger then can come under primary victim.
C as rescuer may bot fall within thelegal definition of a primary or secondary victim.
At present rescuers dont have primary victim status if they are not within the range of foreseeable physical injury and psychiatric injury is caused by witnessingor participating in the aftermath of accidents which caused death of injury to others.

A rescuer must alteast show he had "objectively exposed himself to danger or reasonably believed that he was doing so " White v Chief Constable of South Yourkshier Poliec 1998-> 4 police officers suffered PTSD after disaster. They argued employer owed duty of care to ensure they wer esafe including psychiatrically. had to be in zone of danger and they weren't and thus could not even be secondary victims as seen by Alcock. Unless duty to make sure safe from physical harm was breached no duty to protect from psychiatric harm. They werent rescuers but doing what emplyed to do. House did not allwo f

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Hillsborough football club.

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Overcrowding in area for Liverppl fans. 5,000 fans tyring to get through turnstile therefore officer decided to open metal door. 2,000 people tried to spill through 2 pens and those at the front were crushed to death (96 people). Televised radio and pressed covered therefore potential bumber of Cs was immense.

Hicks-> Anguish to seeing children on threshold of life was understood to be unbearable but no action for bereavement. Those who escaped Hillsborough cannot achieve action for fear of impending death.
HELD: They were not doing it for money but anger because what happened but despite justification for anger no action.

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Psychiatric injury arising out of stress at work- stress caused directly by pressure of work

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Stress at work=important area.
Employers have:
Duty not to cause psychiatric injury, subject to strict limits Ther eis no need for sudden shocking event. Employee doesnt need to bein zone of anger etc. Employer owes employee a duty to provide a safe system of work where reasonable care is taken to see employees are safe.

Must be reasonably foreseeable by emplyer. Employer has duty to ensure employee doesnt duffer undue stress.
Walker v Northumberland CC 1995-> C was social worker who worked with sexually abused children. County didnt give enough resources to do job efficiently. Suffered breakdown because children were being abusend and he couldnt do anything about it. Returned and employer failed to provide resources etc and workload was too great and sufferd a 2nd breakdown. It was held foreseeable beause he had alrady sufferd one.

Foreseeability of psychiatric injury. The court must consider a number fo acts relation to thejib itself and the individual employees. Hartman v South Essex Mental Hea

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Stokes v Guest, Keen and Nettlefold (Bolts and Nuts Ltd) 1968

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overall test= conduct of reasonable of prudent employer taking positive thought for safety of his workers in light of what he knows/ought to know. . .where developing knowledge must keep reasonably abreast of it where he has greater than average knowldedge of risks obliged to take more than average standard of precautions. Must weish up the risk and the potential consequences and blanage against probable effectiveness of preactions. If fallen below standard expected of a reasonable and prudent employer he had been negligent

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Psychiatric injury arising out of stress at work

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(i) The employer has to take the employee "as he finds him" eggshell skull rule (Donachie v CC Gtr Manchester Police CA 2004 or Simmons v Britsh Steel 2004)

(ii) Duty to notice a problem and take precautions to avoid psychiatric illness (Barber v Somerset CC 2004)

(ii) Does the provisions of counselling discharge the duty (Barber v Somerset CC 2004)

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Equality Act 2011

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The Equality Act is the most significant piece of equality legislation for many years. It simplifies, streamlines and strengthens the law. It gives individuals greater protection from unfair discrimination and makes it easier for employers and companies to understand their responsibilities. It also sets a new standard for those who provide public services to treat everyone, with dignity and respect.

In line with our statutory powers, we have produced Codes of Practice on Employment, Services and Equal Pay. The main purpose of the Codes of Practice is to provide detailed explanations of the provisions in the Act and to apply legal concepts in the Act to everyday situations. This will assist courts and tribunals when interpreting the law and help lawyers, advisers, trades union representatives, human resources departments and others who need to apply the law. As with the Act, the Codes apply to England, Scotland and Wales.

The Codes set out clearly and precisely what the legislation means. They draw on p

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Two Anomalous Cases
http://www.lawgazette.co.uk/news/nervous-reaction-compensation

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1. Harm to C's proeprty as source of psychiatric harm - Attia v British Gas 1988-> establishing that nervous shock from witnessing the destruction of personal property may be actionable. Prior to this case, a duty of care for an individual's mental health had not been established in situations not involving personal injury or the witnessing of such an event. The Court of Appeal ruled that British Gas were liable for the subsequent shock and depression of Mrs Attia, following the near total destruction of her home and possessions The decision in Attia came before that of Alcock v Chief Constable of South Yorkshire where close relatives and witnesses of large scale physical harm were barred from recovery for subsequent psychiatric harm. It therefore remains to be seen – though it seems unlikely– whether in light of this decision, this principle would be reaffirmed
2. D places C in a position whereby C imagaines he has become an instrument of T's injury

If D negligently puts C the position whereby C unw