UNIT 4 SECTION 1 NEGLIGENCE
BUSINESS LAW Unit 1, section 1: Negligence
These are wide range of situations that give rise to an action for negligence.
To be successful in an action for negligence the plaintiff must establish
these elements:
The defendant owed the plaintiff a duty of care.
The defendant breached the duty.
Reasonably foreseeable damage was caused by the breach of duty.
At the end of this section, students should be in the position to
Explain what tort is
Let us now examine these three elements one after the other.
Duty of care
The leading case in the duty of care principle is that of Donoghue v
Stevenson (1932).
Until this landmark case the courts were very restrictive in holding that a
duty of care was owed to injured persons. In limited cases such as road users
to other road users and occupier of premises to visitors, the courts held that
there was a duty of care.
In Donoghue v Stevenson (1932) the plaintiff Mrs. Donoghue and her friend
went into a café where the friend bought an ice cream and a bottle of ginger
beer. The ginger beer was in opaque bottle and was opened at the table. The
owner of the café poured part of the ginger beer over the ice cream which
the plaintiff consumed. The friend then poured the rest of the ginger beer
into a glass. From the bottle came the remains of what appeared to be a
decomposed snail. The plaintiff claimed he suffered shock and gastro
enteritis as a result of drinking the ginger beer on the ice cream and claimed
£500 as damages from Stevenson, the manufacturer of the beer. Let us
understand here that the plaintiff could not sue for breach of contract for he
did not buy the beer and therefore there was no contract between the
plaintiff and the defendant. The court held that every person owed a duty of
care to his neighbour. A neighbour was somebody that person could
reasonably foresee would be injured by his acts or omission. The defendant
could reasonably foresee that someone other than the purchaser would drink
the ginger beer and therefore owed a duty of care to the ultimate consumer.
His Lordship Lord Atkins laid down the “neighbour principle” as follows:
You must take reasonable care to avoid acts or omissions which you can
reasonably foresee would be likely to injure your neighbour. Who then is
my neighbor? The answer seems to be persons who are closely and directly
affected by my acts that I ought reasonably to have them in contemplation
as being so affected when I am directing my mind to the acts or omissions
which are called in question.
With the expansion of the scope of the duty of care the number of cases in
tort of negligence rose as it appeared that a duty of care could be covered for
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any reasonably foreseeable negligently inflected loss. The courts became
alarmed that the tort of negligence could get out of control and sought to
check its growth. Apart from a clear case of manufacturer to consumer
vehicle driver to passenger or employers to employees’ relationship, the
House of Lords in Caparo Industries v Dickson (1990) established a three-
stage test that must be satisfied to determine whether a duty of care existed
between the plaintiff and the defendant. In Caparo v Dickson the plaintiff,
Caparo had shares in Fidelity Plc. The plaintiff read and relied on the
statutory audited accounts of Fidelity Plc. prepared by the defendants,
Dickson when making their decision to purchase additional shares in
Fidelity Plc and then to mount a successful takeover bid. The account was
later found to be inaccurate and showed a profit of £1.3 instead of a loss of
£465,000.00. Caparo sued Dickson for misstatement. The House of Lords
held that Dickson was not liable. It stated that auditors owed no duty of care
to the public at large or to the individual shareholder who rely on the
accounts to buy further shares. The purpose of the statutory audit was to
enable shareholders exercise proper control over a company and not to
provide information for share dealings or takeovers.
Lord Bridge outlined a new three-stage test for determining the duty of care
as follows What emerges is that, in addition to the foreseeability of
damages, necessary ingredients in any situation giving rise to a duty of care
are that they should exist between the parties owing the duty and the party
to whom it is owed a relationship characterized by the law as one of
‘proximity’ or ‘neighborhood’ and that the situation should be one in which
the court considers it fair, just and reasonable that the law should impose a
duty of a given scope upon the one party for the benefit of the other.
TEST 1: Was the harm or loss caused reasonably foreseeable?
For a duty of care to exist the loss or harm caused to the plaintiff must
have reasonably been foreseen at the time the defendant was negligent.
In Home Office v Dorset-Yatch Co (1970), some Borstal boys were taken on
a trip to Brownsea Island by officers from the Borstal (the officers’ work for
the Home Office) escaped one night and damaged the plaintiff yatch. The
court held that the Home Office owed a duty of care to the defendant. The
court further noted that usually one man is under no duty of controlling
another to prevent injury to a third party. In this case there was a special
relationship between the boys and the officers. The damaged caused to the
plaintiff’s property was reasonably foreseeable.
TEST 2: Was there a sufficient relationship of proximity between the
Plaintiff and the defendant?
By proximity we mean legal closeness and not physically nearby. Legal
closeness includes personal relationship between the parties, the length of
time between events and whether goods may have been tempered with. As
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in Donoghue v Stevenson, the bottle of the ginger beer was opened at the
table so it could not have been tempered with by another party.
In Evans v Triplex Safety Glass Co. Ltd (1936) the plaintiff bought a car that
had been fitted with windscreen of Triplex toughened Safety Glass. The
windscreen got shattered while the plaintiff was driving and got injured. The
plaintiff brought an action against the defendant. The court held that the
defendant was not liable because too much time had elapsed between the
time the windscreen was manufactured and the incident. The windscreen
had been fitted over a year and could be other reason such as poor fitting by
the car makers.
TEST 3:
When it is fair, just and reasonable to impose a duty of care. This third test
is usually a matter of public policy. The first two tests may exist but for
public policy reasons the court may not impose a duty of care.
In Hill v Chief Constable of West Yorkshire (1989) the plaintiff was the
mother of the last victim of the serial killer Peter Sutcliffe (the Yorkshire
Ripper). She sued the police for being negligent in investigating the earlier
murders committed by Sutcliffe. She argued that if the police had not acted
carelessly Sutcliffe would have been caught earlier and her daughter’s death
would have been prevented.
The House of Lords held that the police do not generally owe a duty of care
to individual members of the public as to the way in which they carry out
their findings of investigating and controlling crime. There was sufficient
proximity between the police and the public for a duty of care imposed to be
imposed on the police to protect potential future victims. There were also
public policy reasons for not imposing a duty of care on the police because
to do so might lead the police to act in a defensive manner and divert their
attention the primary function of suppressing crime.
In Ashton v Turner (1981), three drunken men committed burglary and then
sought to escape in a car owned by one of them. The car crashed and one of
them was injured. He brought a claim against the driver for [Link]
court held that for public policy reasons the driver was not liable for persons
involved with him in the commission of a crime
The Defendant broke his duty of Care
For a party to be successful in his claim for negligence, the party must prove
further that, the defendant broke the duty of care owed the plaintiff. What
this says is that, he must prove that the defendant did something that a
reasonable man in those circumstances could not have done or that the
defendant did fail to do something that a reasonable man in the
circumstances would have done.
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Standard of care:
The standard of care is that if a reasonable man, that is, the objective test? It
is expected that the defendant would have exercised the degree of care and
skill expected from a reasonable person. The defendant cannot put up a
defence that is unskilled or inept. A learner of a motor vehicle owes the
same objective standard of care to his passengers and other road users as
every driver. The lack of experience on his past is not taken into account
and the standard of care expected of him is the same as that of a competent
driver.
In Nettleship v Weston (1971), the plaintiff agreed to teach the defendant to
drive. On the third day of the lessons the defendant hit a lamp post and the
plaintiff got injured The court held that the learner driver owed to the other
passengers and the public the same duty of care as any other driver. The
defendant was liable in the same way as any other driver regardless that she
was inexperienced.
It must however be noted that the standard of care required of a child will be
lower than that of an adult. The standard will be that of a child of that age.
In Orchard v Lee (2009) a 13 year old school boy was playing a game of
tag on the playground when he collided with a lunch time supervisor. The
supervisor was seriously injured. The court held that the boy was not liable.
This was so no because no ordinary prudent and reasonable 13 year old boy
would reasonably have foreseen the risk of injury through playing tag. He
had not fallen below the standard expected of a child of that age.
As professionals the standard of care expected of them is the standard that a
reasonable person in that profession would show. A defendant claiming to
have a special skill is expected to act to the same standard as a person with
those skills.
In Philips v Whiteley Ltd (1938) the defendant was an ear piercer. The
Plaintiff contracted a disease after having had her ear pieced by the
defendant. The court held that the defendant was not liable because the
standard of care expected of the defendant was that of a skilled and
competent ear piercer not a medical practitioner. The defendant had met the
standard.
In Bolam v Friern Hospital Management Committee (1957) the plaintiff
received ECT treatment. Before the treatment the plaintiff was given
relaxant drugs which caused the defendant to suffer fractures. There was
divided medical opinion as to whether the relaxant drugs should be
administrated but the majority was against it. The court held that the
hospital was not liable. If a doctor acts in accordance with skilled medical
opinion he will be negligent even if other practitioners would have taken a
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contrary view. The doctor had acted in accordance with accepted medical
practice.
The Plaintiff Suffered Loss or Damage as a Result of the
Defendant’s breach of duty.
As we have noted earlier, to succeed in an action for negligence, the
plaintiff needs not only establish the two elements but go further to establish
a third element. The plaintiff must establish that the damage or loss he
suffered was as a result of the defendant’s breach. This factor consists of
two elements which are the “but for’’ test and that the damage suffered was
foreseeable, that is to say, the damage was not too remote.
The “But For’’ Test: A causal link
The plaintiff must establish firstly, that for the negligence of the defendant
he could not have suffered the loss or damage. There must be a proof that on
the balance of probability the defendant’s negligence caused or materially
contributed to the injury or loss sustained.
In Barnett v Chelsea & Kensington Hospital Management Committee
(1969), a man attended hospital in the evening and was sent home by a
doctor without being examined.
When the man died, the widow sued the hospital for negligence. The court
held that the hospital was not liable because although the hospital owed a
duty of care to examine the man and was in breach by sending him home his
death was not as a result of the breach. The man had been seen poisoned
with arsenic and even if he had been correctly diagnosed and treated when
he arrived at the hospital he could have died anyway. There was no antidote
to arsenic poisoning.
Multiple Causes
There are instances where the plaintiff‘s loss arose out of the actions of not
only the defendant but actions of others. The position of the court is that in
such instances where the ‘but for’ test cannot be applicable the defendant
will still be liable where the defendant’s breach had naturally contributed to
causing the plaintiff’s injury by significantly increasing the risk of this a
disease.
In McGhee v National Coal Board (1973) the plaintiff was a brick kiln
worker. He was exposed to brick dust during the course of his employment.
The employer did not provide washing facilities and after work the
plaintiff had to cycle home covered in dust. He later developed dermatitis as
a result. It was accepted the plaintiff’s expose to brick dust was not a breach
of duty but that the failure of the defendant employer to provide adequate
washing facilities was a breach of duty of care. The court held that a
defendant may be liable in circumstances where a breach of duty materially
increases the risk of a particular harm to the plaintiff. The defendant was
therefore liable to the plaintiff.
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Remoteness of damages
Remoteness of damages implies that the damage suffered by the plaintiffs
must be reasonably foreseeable. It is an object test which means that the
defendant will be liable only for the damage which a reasonable man would
have foreseen as likely consequent of his actions.
In Oversees Tankship (UK) Ltd v Morts Dock & Engineering Co. Ltd (The
Wagon Mould)(1961), the defendant spilt oil from their ship ‘‘The wagon
Mound’’ in Sydney Harbour. The oil spread to a wharf where some welding
was going on. The welding was stopped. Later it was found out that the oil
will not ignite in the water and therefore resumed the welding. Three days
later a bit of cotton waste was floating in the oil and it ignited from a spark
from the welding which destroyed the plaintiff’s wharf. The court held that
though the fire was a direct result of the oil it was too remote as no one
knew oil could ignite in that way. The damage was not reasonably
foreseeable.
In Jolley v London Borough of Sutton (2000), a small boat was abandoned
on grounds near a block of flats owned by the council. The boat became
derelict and rotten. The council was aware that children played on the boat
which they knew was dangerous. The plaintiff aged 14 and his friend were
injured when they tried to jack up the boat to repair it. The court held that
the council was liable. Some harm was foreseeable, even if the precise way
the harm occurred could not be foreseen.
The Eggshell Skull principle
This is a legal principle that states that a defendant must take the victim as
he finds him. In effect if a victim has a particular weakness such as a thin
skull or a weak heart, the defendant will be liable to the full extent of the
Plaintiff’s injuries though a normal person would not have suffered the same
level of injuries the victim suffered.
In Smith v Leech Brain & Co. Ltd (1962), the plaintiff’s husband was
splashed on the lips with molten metal due to his employer’s negligence. He
suffered a minor burn however his lip was in a pre-cancerous condition. The
burn activated the cancer from which he later died. The court held that the
defendant was liable for the death. This was so because although the only
foreseeable injury was the burn a normal person would have suffered some
harm.
In Lagden v O’connor (2003), the plaintiff’s car was damaged in an
accident caused by the defendant. The plaintiff could not afford to pay for a
hire car because he was unemployed. He therefore hired a car on credit
which was more expensive than normal hire.
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The court held that the defendant had to take the victim (plaintiff) as he
found him including his financial situation.
Intervening Act (Novus Actus Interveniens)
This is a situation where the Defendant’s negligence triggers a sequence of
events leading to the harm suffered by the plaintiff. The intervening event
may either be an act of the plaintiff himself or a third party over which the
defendant had no control.
For example Kofi Mensah negligently crashes into the back of Yaw Manu’s
car. Yaw Manu completely dazed by the impact of the crash, steps out of his
car without checking the traffic and is run over by a mini bus from the
opposite direction. Yaw Manu’s legs are damaged in the process. At the
hospital the surgeon was negligent leading to the amputation of Yaw
Manu’s legs. Here it could be seen that the initial negligent of Kofi Mensah
has triggered the sequence of events. The question that confronts the court
is whether the intervening actions of the mini bus driver and the doctor
broke the chain of events between Kofi Mensah’s negligence and the final
loss suffered by Yaw Manu. In Mckew v Holland (1969) the plaintiff’s leg
was injured as a result of the Defendants negligent action. While the
plaintiff was still suffering from the effect of the first injury he broke his
ankle in an attempt to descend a staircase.
The court held that the plaintiff’s unreasonable conduct constituted a fresh
and separate cause of action of the second injury. The defendant was
therefore liable only for the first injury.
Let us compare the above case with Wieland v Cyril Lord Carpets Ltd
(1969) where the plaintiff suffered neck injuries and had to wear a collar in
consequence of the defendant negligence. As a result of the injury and collar
neck she could not use her bifocal lenses with her normal skill. She
consequently fell down the stairs and suffered further injuries. The court
held that her further injuries were triggered by her original disability and
therefore the defendants were liable for her further injuries.
Summary
A tort is civil wrong and the commission of it entitles the injured party to
compensation. It concerns duty owed to person in various circumstance and
the law imposes liabilities for breach of such duties.
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