24 Liability in negligence: personal injury and damage to property (24.1…
24 Liability in negligence: personal injury and damage to property
24.1 Duty of care
24.1.1 Damage or harm reasonably foreseeable?
In the case of
Kent and Griffiths 2000
this is where a reasonable person could foresee that damage or injury could be caused to another person by his actions or omissions.
24.1.2 Proximity of relationship
Even if harm is reasonably foreseeable a duty of care will only exist if the relationship between the claimant and the defendant is sufficient and coats approximate this can be shown by using the neighbour test from
Donoghue v Stevenson.
In the case of
Bourhill v Young
there was no proximity of relationship as the pregnant women did not see the crash and the defendant did not have the lady on the tram in his head when he did what he did this means that there is no duty of care owed by the defendant.
In the case of
McLoughlin v O'Brien 1982
a duty of care was owed by the defendant as the mother saw her husband and children when they were still mangled in a hospital and hadn't been cleaned up which then caused her to have shock depression and a personality change. This then meant that the Lorry driver did have a duty of care however the House of Lords made it that so only a limited amount of people could claim to stop Floodgates opening
24.1.3 Fair, just and reasonable to impose a duty
In the case of
Hill V Chief constable of West Yorkshire 1990
showed that imposing a duty of care on the police wasn't fair, just and reasonable as the Yorkshire Ripper was known to target women however the police could not anticipate who the next victim would be meaning that the police did not owe the victim a duty of care.
In the case of
Osman v Police
there was a psychopath teacher and the police knew that he was targeting a certain student but that as they were going to arrest him he then broke into the house and killed and injured the family in this case the police were to have imposed a duty of care to the family as they knew who the victim would be.
Caparo v Dickman 1990
This is a three part test which asks the questions of 24.1.1, 2, 3.
Donoghue v Stevenson 1932
Neighbour Principle - the person who is owed a duty of care by the defendant. It is not the person living next door. According to Lord Atkin it is anyone you ought to have in mind who might potentially be injured by your act or omission.
In some cases such as drivers, doctors and patients and teachers and students a duty of care is always owed and doesn't need to be proven in court.
24.2 Breach of duty: the objective standard of care
24.2.1 The reasonable person
This is considered to be the ordinary person in the street or doing a task, this is shown by the case of
Is there a substantial body of opinion within the profession that would support the course of action taken by the defendant?
Does the defendant's conduct fall below the standard of an ordinary competent member of that profession?
So this means that learner drivers are judged at the standard of a reasonable driver even though they are still learning.
24.2.2 Risk factors
This is shown by the case of
Paris v Stepney Borough Council 1951
when employee was blind in one eye and was given no protective goggles which caused him to lose his other eye in the end which meant that the company had breached their duty of care.
Size of the risk
This was shown in the case of
Bolton v Stone 1951
this is where a cricket ball hit a passerby on the street outside the cricket ground but precautions were taken such as a 17 foot high fence around the ground and other precautions had been made so there was no duty of care owed.
In the case of
Hayley v London Electricity Board 1965
there was a hole in the pavement with no barriers around it and a blind kid fell in as it was on a street with a blind school which meant they should have made more precautions so they broke their duty of care.
a factory became flooded and sawdust was put on the floor but there was still a casualty but as the right precautions were made they didn't break their duty of care.
In the case of
Roe v Minister of Health 1950
in a anaesthetic tube non visible cracks held sanitizer which got into the medicine which ended with a patient paralysed, but as they did not know the risk then they didn't break their duty.
In an emergency greater risk can be taken and the standard of care can be lower in the case of
Watt v Hertfordshire County Council
the claimant was a fireman and was injured whilst rescuing a woman however the service had not breached its duty of care and the utility of saving a life outweighed the need to take precautions.
Factual causation is shown by the case of
Barnett V Chelsea and Kensington hospital management committee 1969
which uses the 'but for' test which means but for the defendants act or omission the injury or damage would not have occurred.
Three men were poisoned by a co-worker and they got sent home where one died of arsenic poisoning but a doctor didn't come to evaluate them and the wife blamed him for the death. However the amount of arsenic in the man it would have been too late. But for the defendants actions the man wouldn't be dead.
Causation is the link between the defendants act or omission and the injury, loss or damage caused to the claiment.
24.3.2 Remoteness of damage
Where factual causation is proved it must be shown that the damage is not too remote from the negligence of the defendant. This is shown in the case of
The Wagon Mound 1961
this is where oil had been negligently spilled from the defendant ship on the water in Sydney harbour and it spread towards the wharf when welding repairs were being carried out on another ship two days later the oil caught fire because of the sparks on the welding and the fire spread to the claimants walked and burnt it down.
It was decided that even though the oil being spilt was reasonably foreseeable the fire damage wasn't the type of damage was too remote from the original negligent act of spilling oil.
Reasonably forseeable means a result such as an injury or damage which a reasonable person could foresee and could result from his actions or omissions.
Type of injury foreseeable
In the case of
Hughes v Lord Advocate 1963
a manhole was left unattended with only a tent around it and some lamps and a 8 yr old kid went exploring and there was an explosion. This means the consequence is foreseeable even if the course isn't.
Bradford v Robinson Rentals 1967
he had to drive a van in freezing cold weather with no heater in the van and with the windows open as the windscreen kept freezing over and he had frostbite. This consequence is foreseeable even if its more severe.
Doughty v Turner Asbestos 1964
employee was injured when asbestos mixed with metal and there was a chemical reaction and he was burnt. as there wasn't good enough scientific knowledge of those reactions it was found to not be reasonably foreseeable for his injury.
Take your victim as you find him the eggshell rule ~ the thin skull rule.
Smith v Leech Brain and Co. 1962
a man was burnt by metal but the man had a pre-cancerous condition and this bought about the onset of of full cancer. It was reasonably foreseeable and because of the eggshell rule he was liable for the death.
Damage is a legal concept and asks the question has the defendants breach of duty lead to the injury or property damage suffered by the claimant?
24.4 Res ipsa loquitur
'the thing speaks for itself'
The claimant has to show: the defendant was in control of the situation which caused the injury, the accident would not have happened unless someone was negligent and there is no other explanation for the injury.
Scott v London and St Katherine Docks 1865
claimant was hit and injured by six heavy bags of sugar. 1. the sacks fell from the warehouse which was under the defendants control. 2. Heavy sacks do not fall unless someone was negligent. 3. There was no other explanation for the sacks to fall.
24.5 Defences to a negligence claim
Contributory negligence (partial defence)
Sayers v Harlow Urban District Council 1958
Woman trapped in a public toilet and used the toilet and loo roll holder to escape but was injured. as the toilet holder wasn't made to hold human weight she was found 25% liable so the damages were decreased by that amount.
Jayes v IMI Ltd 1985
Lost a finger while cleaning a machine without the guard off but was found to be 100% liable and he was found to have 100% contributory.
O'Connell v Jackson 1972
damages reduced by 15% when rider of moped didn't have a helmet on in an accident.
Froom v Butcher 1976
A driver of a car was more severely injured than he would have been because they weren't wearing a seatbelt. Damages reduced by 20%.
Stinton v Stinton
damages reduced by 1/3 for accepting a lift from a drink driver an knew that he was over the limit.
Badger v Ministry of Defence 2005
Died of lung cancer the defendant exposed the claimant to asbestos dust but the claimant did smoke cigarettes which added to the cancer. So the court reduced damages by 20%.
24.5.2 Consent (volenti non fit injuria)
Knowledge of the precise risk involved
Stermer v Lawson 1977
- claimant borrows defendants motorbike, the claimant had not been shown how to ride the bike and therefore not appreciate the risk.
Exercise of free choice by the claiment
Smith v Baker 1891
- worker injured by rocks falling from a crane, the defence of consent failed as the workman had done everything about complaining about the risks but he had no choice but to continue to work.
A voluntary acceptance of the risk
Haynes v Harwood 1935
- defendant failed to tether horse correctly and policeman was injured trying to restrain the horse. he was not acting voluntarily but under his duty to protect the public.
Ogwo v Taylor 1987
- defendant tried to burn off paint the claimant was a firefighter and was injured and they said that the claimant consented to his act where he actually was just doing his duty.
Sidaway v Governors of the Bethlem Royal and Maudsley Hospitals 1985
ICI Ltd v Shatwell 1965
Wooldridge v Sumner 1963