Negligence In Tort Law

Front 1

In what ways does the law of tort have both backward and forward facing elements?

Back 1

Tort law's disparate functions include:

- PROSPECTIVELY, sets appropriate principles of justice, and deters future torts

- RETROSPECTIVELY, requires people to correct their wrongdoings, achieving justice for victims through compensation

Can also encourage inquiries & increased publicity which effects both views

Front 2

What are the difficulties with using tort law as a method of corrective justice?

Back 2

1. Gives a false appearance of neatness in regards very general torts

2. Not all interferences with rights are recognized

3. There is no general principle as to when a particular conduct will/wont give rise to liability

Front 3

What was the purpose of the Compensation Act 2006?

Back 3

To address the perception of a growing 'compensation culture' in the UK.

Allows courts to consider the wider ramifications of a ruling, namely:

- If it would prevent a desirable activity being undertaken, to a particular extent/in a particular way

- If it would discourage persons from undertaking functions in connection with desirable activity

Front 4

What elements must be established in a successful negligence claim? (4 elements)

Back 4

1. Defendant owed duty to Claimant

2. Defendant breached that duty of care

3. Defendant's breach cause Claimant loss

4. There are no applicable defences

Front 5

What is significance of the ruling in Donoghue v Stevenson? (4 statements)

Back 5

1. It established the duty owed by manufacturers to their ultimate consumers

2. It rejected the 'privity fallacy'

3. It was the starting point of Negligence as a tort

4. It developed the neighbor principle

Front 6

What is the modern judicial approach to establishing a duty of care?

Back 6

Following the far-reaching importance of the neighbor principle (Donoghue), and the failed tests in Anns, Hedley Byrne and Caparo, the courts can be seen to have returned to an 'incremental' approach, based on precedent and whether duties of care were imposed in analogous situations.

Front 7

Anns v Merton LBC

Facts: Calleged that the LA had negligently failed to supervise theconstruction of a building, cracks appeared due to sinking foundations.

Held: WilberforceL classified harm as a ‘material physical’ damage – for which a duty ofcare could be owed – not pure economic loss (no duty of care) andtherefore damages for the cost of repair were recoverable

Back 7

Wilberforce LJ established Ann's Test: (attempted to provide an all-embracing test for duty of care):

1. If the loss was reasonably foreseeable and there existed a relationship of proximity, a prima facie duty of care arises.

2. The defendant may put forward policy considerations to negate/reduce/limit liability.

Front 8

Hedley Byrne v Heller & Partners Limited

Facts: Hedleywanted to know if it would be advisable to extend credit to a customer,Easipower. Consulted Heller, who said it was appropriate.Hedley then lost 17,000 pound after Easipower went out of business.

Held:Duty of care applied in respect of careless statements despite the loss beingpurely economic. Would have liable but for exemption clause

Back 8

Hedley Byrne test - 5 generalrequirements:

1. Must be a duty of care, based on a “special relationship” between representor and the representee.

2. Representation in question must beuntrue/inaccurate/misleading.

3. Representor must have acted negligently making misrepresentation.

4. Representee must have relied on this in a reasonable manner

5. The reliance must have been detrimental to the representeein the sense that damages resulted.

Front 9

Donoghue v Stevenson

Facts: D went to café owned by M, her friend ordered a bottle of ginger beer. D drank some and poured out the rest. Decomposing snailcame out the bottle and became ill. D sued the manufacturer.

Held: foreseeablethat ultimate consumer would be harmed,owed a duty of care.

Back 9

Lord Atkin established negligence as a single tort through the neighbor principle:

"You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who then in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation"

Front 10

Caparo Industries Plc v Dickman

Facts: The claimants bought shares in F plc. in reliance on anaudit into the company’s finances carried out by the defendant. In fact theaccounts published by the defendant were inaccurate and the claimants sued innegligence

Held: no duty of care was owed, claim failed

Back 10

Lord Bridge's Caparo principle, in the form of a 3 stage test:

1. That harm was reasonably foreseeable

2. That there was a relationship of proximity

3. That it is fair, just and reasonable to impose a duty of care

Contains same elements as Ann's, main difference being under Caparo the claimant must put forward policy reasons for imposing liability

Front 11

What are the main disadvantages of the Caparo Test?

Back 11

- No clear relationship between three stages.

- Not a legal 'test': no precise definition for what is 'foreseeable' or 'reasonable'

For these reasons, was never meant to be generally applicable, but to be used in absence of a binding authority.

Front 12

What is the 'fault principle'?

Back 12

Idea that if C is to claim, D must be at fault objectively (i.e. not subjective/moral test) for being negligent. Basic test of reasonableness

“...negligence is the omission to do something which the reasonable man …would do”

- Alderson B, Blyth v Birmingham Waterworks

Front 13

Who is the reasonable man?

Back 13

Supposed to be an objective test of what any 'reasonable person' would have done,

- Man can take the form of a ‘traveller on the London underground’ (McFarlane vTayside Health Board [1999]) or

- ‘the anthropomorphic conception of justice’ (Davis contractors v Fareham Urban District Council [1956])

Front 14

Gough v Thorne

Facts: A car collided with a 13 year old girl as she was crossing the road with her brothers. Appealed against the trial judge's decision to reduce her claims due to contributory negligence

Held: older children can only be held to be contributory negligent if they are in some way blameworthy. Had done what was reasonable for 13yo.

Back 14

Test of reasonable child established:

Standard of care required from children is ‘whether any ordinary childof 13 ½ [for example] can be expected to have done any more than this childdid.”

Front 15

Bolam v Friern Hospital Management Com.

Facts: D gave electro-convulsive therapy without a relaxant drug orappropriate physical restraints & sustained afractured hip. Some doctors would give relaxant drugs others would not.

Held: Doctors are not guilty of negligence if they acted in accordancewith a practice accepted as proper by a responsiblebody of medical men

Back 15

Bolam principle established by HL: "a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view."

I.e. different standard of care in common practice cases

Front 16

How was the BOLAM test changed, and what is it today?

Back 16

Where D is occupying a particular post, their conduct will be assessed by standard reasonably expected someone in such a post, without exception for experience. Now a 2 stage test:

1. Has doctor acted in a way accepted as proper by a respectable body of medical opinion?

2. If yes, is the practice 'reasonable' and 'logical'? (see: Bolitho)

Front 17

Bolitho v City and Hackney Health Authority

Facts: 2YO suffered serious brain damage following respiratoryfailure. Experts supported the doctor, judge therefore found no negligence

Held: A doctor may be negligent even if there is a body of medical opinion inhis favor: he must also be able to show that this opinion has a logicalbasis (only very rarely will judge go against body of experts)

Back 17

A consistent body of expert medical opinion may still be ignored by the judge, if he can be sure that no logical basis for the opinion has been shown to the court: ‘a plaintiff can discharge the burden of proof on causation by satisfying the court either that the relevant person would in fact have taken the requisite action (although she would not have been at fault if she had not) or that the proper discharge of the relevant person’s duty towards the plaintiff required that she take that action.’- Lord Scarman

Front 18

What is the matrix of factors that decide what is reasonable in circumstances of case? (4 factors)

Back 18

1. Probability of Injury

(idea that reasonable man would take precautions against those foreseeable risks which are likely to happen)

2. Seriousness of injury

3. Cost of taking precautions

4. Social value of activity

Front 19

What is the res ipsa loquitur principle?

Back 19

Means 'the thing/accident speaks for itself'

See: Scott v London and St Katherine Docks Co: ‘There must be reasonable evidence ofnegligence, but, where the thing is shown to be under the management of thedefendant, or his servants, and the accident is such as, in the ordinary courseof things, does not happen if those who have the management of the machineryuse proper care, it affords reasonable evidence...that the accident arose from want of care.’

Rebuttable presumption that D has breached duty of care

Front 20

Home Office v Dorset Yacht Co Ltd

Facts: young offenders were doing supervised work on Brown Sea Island. Left unsupervised, seven escaped and stole a boat which collided with a yacht

Held: HO owed a duty of care for their omission as they were in a position of control over 3rd party who caused the damage. Foreseeable that harm would result from inaction

Back 20

Defendant can be liable for third party damage if they negligently took care of them while under their control

Front 21

Hill v Chief Constable of West Yorkshire

Facts: C’sdaughter was killed by a serial killer, who had previously murdered a number ofyoung women. C claimed police owed a duty of care to herdaughter to conduct their investigations with reasonable care.

Held: :no duty of care was owed inter alia because this might lead police officers toact in a ‘detrimentally defensive’ manner, requiring the courts toevaluate decisions beyond their expertise and competence.

Back 21

Policy measures may outweigh damages and prevent the imposition of a duty of care

Front 22

Nettleship v Weston

Facts: Cagreed to give D (family friend) driving lessons. The car mounted the pavementand hit a lamp post, breaking C’s knee cap. D was later convicted of drivingwithout due care and attention and C sued in negligence.

Held:Duty of care owed to C was the same objective standard that wasowed by all drivers, including learners, to all road users.

Back 22

Law makes no reservations based on experience of the individual

Wilsher - similar ruling as a junior doctor was not held to a different standard than others filling his post

Front 23

Roberts v Ramsbottom - Mansfield v Weetabix

Facts: both cases involved drivers getting into accidents on the road because they had had a stroke and therefore lost control of half their body (RvR) or had fallen unconscious due to low blood levels (MvW)

Held: RvR was found liable, as he was still in control and could have pulled over. MvW was not held liable as he did not know and could not reasonably have known of illness

Back 23

Standard of care, irrelevant of circumstances, was what a reasonable competent driver would have done

Front 24

Phillips v Whiteley

Facts: D employed aman to pierce C’s ears, two weeks later she developed an infection that causedan abscess on her neck that required surgical draining.

Held: A jeweler is notbound to take the same precautions as a surgeon would take, and D had takenall reasonable precautions. C was unable to prove that the operationwas negligently performed, and that the abscess, which formed in her neck, wasdue to the negligence. Clost

Back 24

Reasonable standard in regard common practices will vary depending on role someone is employing

Front 25

Wells v Cooper

Facts: D fitted a door handle in his home. C a visitor pulled on thehandle and it came away in his hand, causing the visitor to fall down severalsteps.

Held: D was to be judged againstthe standards of a reasonably competent carpenter, but not that would be expected of a professional carpenter working forreward. Job areasonable householder might do for himself, and that was the appropriatestandard. C lost

Back 25

Standard will not be applied to laymen

Front 26

Bolton v Stone

Facts: Cwas it on the head outside her house by a cricket ball hit by a player from anadjacent cricket patch. The hit was substantial, although possibly notexceptional. The ball had travelled some 100 yards and over a 7 foot fence, such a thing had happened only about 6 times in 30 years.

Held: risk was so slight and the expense of reducing it so great that areasonable cricket club would not have taken any further precautions

Back 26

Risk must be foreseeable enough that a reasonable man would have taken precautions against it

Front 27

Paris v Stepney Borough Council

Facts: Manemployed as a garage hand was blinded when a metal chip flew intoone of his eyes while he was working. Unfortunately was already blind in other eye, as his employer knew.

Held: Probabilityof such an event was very small, but its consequences were very serious, hisemployers, knowing of his disability, should have taken extra care to providegoggles for him.

Back 27

The more serious the possible damage, the greater the precautionsthat should be taken.

Front 28

Latimer v AEC Ltd

Facts: C slipped on an oily film in D's factory and injured hisankle. The sawdust put down to soak up liquid did not cover the entirefloor. Oily film was due to water from an exceptionally heavy stormcaused.

Held: D had doneall that a reasonable person would do in the circumstances; they could not haveeliminated the risk completely without closing the factory. Cost of takingprecautions was too high to be reasonable

Back 28

Defendant will not be expected to take on unreasonably expenses precautions

Front 29

Scout Association v Barnes

Facts: C was injured while playing Objects in the Dark at scouts. Only minimal lighting was provided in the game

Held: defendanthad breached his duty – the value of playing the game in the dark as a way ofadding ‘spice’ to increase the boys’ enjoyment did not justify the additionalrisk.

Back 29

The desired objective must proportionately justify any additional risks

Front 30

Marshallv Osmond [1983]

Facts:D following C, an escaping criminal crashed the police car intohis, injuring him.

Held: The duty owed by a policedriver was the same as that owed by any other. But where circumstances were that he was driving alongside another car in order to make anarrest, the error of judgment he made in the instant case did not amount tonegligence.

Back 30

How reasonable an action is will depend on the circumstances, such as whether the defendant was under immense pressure