Please enable JavaScript.
Coggle requires JavaScript to display documents.
Liability in negligence - Coggle Diagram
Liability in negligence
- negligence: an act or failure to act which causes injury to another person or damage to their property
- negligence needs proof of fault on the part of the person who caused the incident.
- negligence was officially defined in the case of Blyth v Birmingham Waterworks Co. (1856) as: "Failing to do something which the reasonable person would do or doing something which the reasonable person would not do."
- when claiming negligence the burden is on the claimant to gather evidence and to prove the defendant was at fault and is to blame for loss or damage.
- the burden of proof is much lower than in criminal law as it is on the balance of probabilities - as so it is more likely than not that the defendant is liable for the claimants loss or damage.
- if the claim is successful the defendant is only liable if:
-
-
-
- Damage or reasonably foreseeable harm
- whether damage is reasonably foreseeable depends on facts of the case.
- Kent v Griffiths 2000 - ambulance was called to take claimant who was suffering from asthma attack to hospital. despite repeated assurances by control centre, and for no obvious reason, ambulance failed to arrive within a reasonable time. as result claimant suffered a respiratory arrest.
- court decided it was reasonably foreseeable that claimant would suffer further illness if ambulance didn't arrive promptly for no good reason. **a duty of care was owed by the ambulance service when the initially accepted the call & they failed in this duty and were liable to pay damages.
- Proximity of relationship
- even if harm is reasonably foreseeable, duty of care only exists if relationship between C and D is sufficiently close or proximate.
- Bourhill v Young 1943 - pregnant woman heard accident as she got off a tram. accident was caused by a motorcyclist who dies in the accident. she approached scene of accident and saw blood on the road. she suffered such shock from what she saw she later gave birth to still-born baby. she sued relatives of dead motorcyclist.
under neighbour test, she had prove she was proximate, or close, to the motorcyclist so that he owed her duty of care. HoL decided that he couldn't anticipate that, if he was involved in an accident, it would cause mental injury to a bystander. he was not proximate to her & didn't owe her a duty of care.
- one reason for decision in this case could be that Mrs Bourhill wasn't related to victim & if she could sue it would open floodgates to claims.
- concept of duty of care in tort of negligence is to establish legal relationship between the parties.
- it's developed through precedent
- modern law of negligence began with Donoghue v Stevenson (1932)
- in the judgements, Law Lords used the principle from Heaven v Pender (1883) to set out when a duty of care is owed:
- "a duty of care did arise when the person or property of one was in such proximity to the person or property of another, that, if due care was not taken, damage might be done by one to another."
- Lord Atkins' judgement for this case contained 5 critical elements:
-
-
3) negligence would need to satisfy a 3 stage test - duty, breach and damage
- case of Caparo v Dickman (1990) came before HoL and they set a three part test for deciding, in all cases, whether a duty of care existed:
-
-
3) is it fair, just and reasonable to impose a duty?
Caparo v Dickman 1990 - Caparo industries purchased Fidelity Ltd. after looking at the statutory accounts which stated that the company has made a profit. in fact, Fidelity Ltd. had made a huge loss. Caparo sued Fidelity claiming they were negligent in certifying the accounts.
however HoL held that no duty of care was owed as there wasn't sufficient proximity between Caparo and Fidelity since Fidelity wasn't aware of the existence of Caparo nor the purpose for which the accounts were being used by them.
4) 'neighbour principle'
- "you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure you neighbour. who, the, 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 as being so affected when i am directing my mind to acts of omissions which are called in question"
-
- fair, just and reasonable to impose a duty*
- courts are often reluctant to find that it is 'fair just and reasonable' to impose a duty of care on public authorities such as the police.
- Hill v Chief Constable of West Yorkshire 1990 - it was pointed out that imposing duty of care on police & allowing them to be sued) could lead to policing being carried out in defensive way, which may divert police resources & attention away from the prevention and detection of crime. this could lead to lower standard of policing, not higher ones.
- Robinson v Chief Constable of West Yorkshire 2018 - an elderly lady was walking along a street & was injured when police officers tried to arrest a suspected drug dealer. there was a struggle, during which the suspect & police feel to the ground, collided with claimant and injured her
- 3-part test in Caparo was criticised because:
1) it didn't say when duty of care should be imposed but after the decision, judges and lawyers applies the 3-part test to every negligence claim
2) police & other emergency services used the defence in Hill that, for policy reasons, it wasn't fair just and reasonable for them to owe a duty of care to members of the general public with whom they had no previous dealing.
- police defended claim on grounds of Hill, arguing they didn't owe duty of care to claimant & if they did, they were protected for policy reasons. claimant argues this was a novel case & that police owed claimant a duty of care
- in supreme court is was held: "it was not the HoL intention (in Caparo) to create a rigid test for judges to use (in every case), as this would be impractical. the HoL, in Caparo, considered that when deciding to impose a duty, the courts had to take a more pragmatic approach"
- and Lord Reed : "the proposition that there is a Caparo test which applies to all claims in ... negligence, and that in consequence the court will only impose a duty of care where it considers it fair to do so on the particular facts, is mistake. it is normally only in novel cases, where established principles do not provide an answer, that the courts need to exercise judgement that involves consideration of what is 'fair, just and reasonable "
- following Robinson, common law has slowly developed, using established authority. the effect of the decision is:
-
2) if there is an existing similar precedent (or some statutory authority) for deciding if a duty of care exists then that should be followed. alternatively the law can be developed incrementally & by analogy with existing precedent.
3) if there is a novel situation where it ha not been previously decided if a duty of care exists, or when the court is being invited to depart from a decided precedent, then the Caparo 3-stage test should be used.
- as result it was decided that there was no blanket protection for the police and that Mrs Robinson was owed a duty of care.
- once shown duty of care is owed, C has to prove duty of care has been broken. the standard is objective - that of the 'reasonable man' (or person), as set by Baron Alderson.
- this reasonable person is the ordinary person performing the task competently. it could be the reasonable driver, the reasonable doctor or the reasonable manufacturer.
- the reasonable man/person
- Vaughan v Menlove 1837 - D's argument that he'd used his best judgement wasn't relevant - his action were judged objectively. there's a number of variation of the 'reasonable person' & court may have to consider whether D has a special characteristic. e.g, are they a professional, an inexperienced learner or a child?
- learners are judged at standard of the competent more experienced person. principle was set out in Nettleship v Weston 1971
- Nettleship v Weston 1971 - Mrs Weston arrange with neighbour, Mr Nettleship for him to give her driving lessons. she was driving her 3rd lesson with him when she failed to straighten the car after turning a corner. she hit lamp post which fell onto car, injuring Mr Nettleship. it was decided Mrs Weston should be judge by stander of the competent driver no inexperienced learner driver so she was liable.
- although judgement may seem unfair to learner, it's logical as far as motorist are concerned because she was covered by an insurance policy. it would be unjust on an injured C if defence was put forward that 'i am only on my 3rd lesson and you can't expect me to be as good a driver as someone who's been driving for some time'.
- standard is that of a reasonable person of D's age at time of the accident. this is shown by case Mullin v Richards 1998
- two 15 yr olds were play fighting in class with plastic rulers. one ruler snapped & fragments went in Mullin's eye, resulting in her losing all useful sight in that eye. was decided Richards had to meet standard of 15 yr old school girl (and not that of a reasonable adult). as she reached the required standard, she hadn't breached her duty of care