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Tort Law: Negligence - Coggle Diagram

- - - - Tortious liability arises from the breach of a duty primarily fixed by the law: this duty is towards persons generally and its breach is redressible by an action for unliquidated damages [claiamnt is not claiaming a fixed amount of compensation]- P.H. Winfield, Winfield on Tort
- - - - The first elucidation fo a duty of care came in Heaven v Pender [1883]: C a ship-painter, injured when rope supplied by D snapped. D contracted with C's employer. Brett M.R. gave a concise definition of negligence:
        
        "Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing oridnary care and skill... there may be the obligation of such a duty from one person to another although there is no contract between them with regard to such duty".
        
        - Donoghue v Stevnson [1932]:
        
        the landmark case in modern negligence law. NO contract between C and D, but liability found where D had manufactured defective product, which caused injury to the FINAL CONSUMER
        
        Thus established general principle that manufacturer owes duty of care to final consumer: this was also where negligence was confirmed as a separte tort
        
        Lord Atkin formulated the "neighbour principle": only when this principle was applied, he said, could duty of care be established. The neighbour principle emphasises importance of foreseeable claimant: reasonable care must be taken to avoid acts or omissions that you can foresee are likely to injure your neighbour.
        
        Donoghue v Stevenson was an important precedent, which was followed by Grant v Australian Knitting Mills Ltd [1936]
        
        Who is a foreseeable claimant:
        
        Bourhill v Young [1943]: "area of shock" theory of proximity. D owed no duty to C. "The duty is not to the world at large", per Lord Porter. C in no damnger from D of direct ohysical injury: not foreseeable to D
        
        Home Office v Dorset Yacht Co [1970]: D liable to C for damage caused by escape borstal boys to C's yacht: but would have been excessive to burden D with liability for ALL damage subsequently committed.
        
        Liability only for harm caused at the time of escape and in vicinity. D not liable if, weeks later, escapees robbed Post Office in another part of country etc.
        
        This illustrates an overlap between existence of duty, causation, and remoteness of damage
  - - - Anns v Merton [1978]- Local authority liable for negligence of inspectors, who failed to exercise with due care statutory power to check foundations of house during construction. Duty owed to occupiers of houses which had subsequently become uninhabitable
        
        Two stage test introduced by Lord Wilberforce:
        
        a) is there a sufficient relationship of "proxmity or neighbourhood", if there is, then a prima facie (on first appearance) duty of care arises
        
        b) if answer to a is affirmative, are there "any considerations which ought to negative, or reduce or limit the scope of the duty or the class of person to whom it is owed", 751-2
        
        This test thus provided potential for extensive liability: a) "proximity" criterion is potentially unlimited in scope if it means the reasonable contemplation of likely harm
        
        Lord Wilberforce test doubted in Yuen Kun Yeu v Attorney General of Hong Kong [1988]
        
        Lord Keith referred to proximity as synonym for foreseeability on one hand
        
        On the other, the whole relationship of C and D, as described by Lord Atkin in Donoghue, stressed not only the requirement of foreseeability of harm, but also a close and direct relationship of proximity
        
        Guidelines for the existence of a duty of care in novel cases are based on Caparo Industries v Dickman [1990], where Lord Bridge formulated the "three stage Caparo test"
        
        a) damage to C is foreseeable
        
        b) there is a relationship of proximity or neighbourhood between C and D
        
        c) the court considers it fair, just and reasonable that the law should impose a duty
        
        So Caparo v Dickman appears to dismiss the Wilberforce 2-stage test in Anns v Merton
        
        But see Michael v Chief Constable of South Wales [2015] UKSC 2 *: Lord Toulson reaffirmed the principles that negligence develops incrementally and by analogy and that policy considerations would often be relevant. The majority of judges cast doubt on the total validity of the Caparo 3-stage test:
        
        Lord Toulson noted of Lord Bridge’s judgment in Caparo “that the concepts both of ‘proximity’and ‘fairness’ were not susceptible of any definition which would make them useful as practical tests,but were little more than labels to attach to features of situations which the law recognised as giving rise to a duty of care.
        
        Anns v Merton overruled in Murphy v Brentwood [1991]: Accoridng to Lord Keith Anns "did not proceed on any basis of established principle"
        
        Murphy v. Brentwood emphasised the distinction between property damage and economic loss: no duty is owed in relation to pure economic loss. Donoghue v Stevenson principles should only apply in cases of material physical damage
        
        The courts, in "novel" cases should not assume a prima facie duty, but should seek to develop law "incrementally and by analogy with establsihed categories": thus an incremental approach.
        
        Proximity. Illustrated by “fire brigade” cases heard by C of A, including Capital & Counties plc v Hampshire CC [1997] QB 1004 *:
        
        Brigade switched off sprinkler system in burning building
        
        D liable because of duty to take reasonable care not to make condition worse.
        
        But no common law duty to answer emergency calls or to fight fire with reasonable skill merely by responding to an emergency call: lack of proximity between emergency services and the maker of the call. “Floodgates : number of emergency callers too great
        
        Swinney v Chief Constable of Northumbria Police [1999] 11 Admin LR 811: C provided confidential information to police about criminal offence. Police record of C’s identity stolen from police car. Cthreatened with violence by criminals. By providing information, C created proximity with D. Also,fair, just and reasonable to impose duty, as public should be encouraged to volunteer information topolice (on facts of case, D held not to be in breach)
        
        Hill v Chief Constable of West Yorkshire [1989]:
        
        C, mother of last victim of Yorkshire Ripper, claimed police had not used reasonable care in apprehending murderer. Was she owed a duty of care? No.
        
        Policy reason was that contrary decision might lead to police discretion being limited and exercised in a defensive frame of mind.
        
        Also, Lord Keith said that C was “one of a vast number of the female general public who might be at risk...there is no general duty of care owed to individual members of the public by the responsible authorities”. He raised the issue of public policy, but his decision was based on lack of proximity.
        
        Lord Atkin saw proximity as a broad, moral duty owed to foreseeable victims.
        
        Lord Keith refined it into a narrower, legal gatekeeping tool, especially to avoid indeterminate liability and to protect public authorities from being swamped by claims.
        
        This reflects the shift from principle to policy in negligence — a classic tort law theme.
  - - - "Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate human affairs, would do, or doing something which a prudent and reasonable man would not do", Blyth V Birmingham Waterworks [1856], per Alderson, B
        
        The Four relevant factors which the court considers when determining breach of duty
        
        Cost of eliminating risk
        
        Latimer v AEC Ltd [1952]: flood caused oil to escape over factory floor. D (employer) sprinkedl sawdust over some, but not all, of floor and didn't close factory
        
        C slipped and injured on untreated part of floor
        D not liable: acted as reasonable employer
        
        Severity of likely injury
        
        Paris v Stepney [1951]
        
        C, garage-hand with only one eye, blinded in other eye by splinter from bolt; goggles not supplied by employer, D
        
        Although no greater risk of injury, lack of goggles increased risk of injury being more serious (loss of both eyes as oppsed to one)
        
        D also knew of C's condition and should have supplied goggles, D liable for negligence
        
        Probability of injury
        
        Bolton v Stone [1951]- C hit by cricket ball and seriously injured; ball travelled 100 yards before hitting her, clearing 17 feet high and 78 yards from batsman; ball hit out of ground only 6 times in 28 years... "an ordinarily careful man does not take precautions against every foreseeable risk", per Lord Oaksey
        
        Utility of D's conduct
        
        Watt v Hertfordshire CC [1954]
        
        Fire brigade responded to emergency call, requiring lifting equipment
        
        **Wrong fire engine used to carry heavy car jack
        Jack slipped in transit, injuring C**
        No liability: "if this accident had occured in a commercial enterprise without any emergency there could be no doubt that the servant would succeed. But the commercial end to make profit is very different fom the human end to save life or limb"- per Denning L.J.
        
        Social, Action, Responsibility and Heroism, (S.A.R.A.H.) Act:
        
        Courts must consider whether the alleged negligence or breach of statutory duty occured when the person was axting for the benefit of society or any of its members
    - - A lack of skill or experience is no defence:
        
        Nettleship v Weston [1971]:
        
        Learner driver held to same standard of care as experienced river: "The learner driver may be doing his best, but his incompetent best is not good enough", per Lord Denning M.R
        
        Impaired mental function?
        
        Mansfield v Weetabix: D not laible for crashing lorry, where driver was unaware he was suffering from hypoglycaemia
        
        Roberts v Ramsbottom [1980]: D liable for several car accidents, because he wasn't in "automation" after suffering stroke (still had some control)
        
        Dunnage v Randall [2015]- C injured in attempting to rescue D, a schizophrenic, who poured petrol over himself and immolated himself. D liable as he had some awareness as to what he was doing
        
        What about children?
        
        Mullin v Richards [1998]
        
        C and D (15-year-old schoolgirls) fought with plastic rulers
        
        C blinded by fragment
        D not liable
        Issue not whether D's actions were "those of ordinarily prudent and reasonable adult, but those of an ordinarily prudent and reasonable 15-year-old schoolgirl", per Hutchinson L.J
        
        And DOCTORS???
        
        Bolam v Friern Hospital Management Committee
        
        "A doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art", per McNair J
        
        Bolitho v City and Hackney Health Authority [1997]:
        
        Slightly modifed Bolam test.
        
        Lord Browne-Wilkinson: practice should be regardded as proper by a competent, reasonable body of opinion- not just a responsible body of medical opinion.
        
        Such opinion must have a logical basis: more objective test that Bolam perhaps? Questions over whether it is accurate?
        
        The Bolam Test and informed consent
        - Sidway v Governors of the Bethlem Royal Hospital [1985]
        
        C had operation on spine.
        
        Less than 1% risk of damage to spine, but C not informed of this.
        - Risk materialised, and C became disabled.
        
        D is not liable.
        
        In some circumstances, disclosure of risk was necessary, e.g. where there was 10% risk of stroke,following operation: “the judge might in certain circumstances come to the conclusion disclosure of a particular risk was so obviously necessary to an informed choice on the part of the patient that no reasonably prudent medical man would fail to make it”, per Lord Bridge
        .
        
        But in this case, Bolam test applied: it applies to patient information as much as to diagnosis and treatment; rejects doctrine of informed consent.
- - - - Can you sue for "loss of a chance"?
        Hotson v East Berkshire AHA [1987]
        
        C injured falling from tree
        D didn't diagnose hip injury at first
        
        5 days later, they did
        C developed hip deformity
        Delay denied C 25% chance of avoiding deformity
        Claim was for loss of benefit of timely treatment, not for chance of successful treatment
        
        D not liable
        
        C did not prove D's negligence was material contributory cause
        
        Gregg v Scott [2005]
        
        D misdiagnosed lump under C's arm as non-cancerous
        
        Chance of survival from 42% (if diagnosed correctly) , to 25%
        
        C claimed loss of a greater chance of recovery was recoverable as damage
        
        D not liable
        
        Survival chance was always less than 50%, and delay had not affected course of illness
        
        "Possibilities" discarded in favour of "probabilities"
        
        Accepting loss of chance claim could open floodgates to numerous cases
        
        Bonnington Ltd v Wardlaw [1956] AC 613
        
        "Material contribution" to injury affecting the principle of causation
        
        C contracted pneunmoconiosis from inhaling silicon dust from work
        
        Some dust caused by D's negligence, some was not
        
        No evidence of proprtions of "innocent" and "guilty" dust
        
        D liable: "guilty" dust a material cause of injury
        
        Fairchild v Glenhaven Funeral Services [2003]
        
        C developed mesothelioma from exposure to asbestos
        
        Had worked for a number of employers and unable to prove during which particular employment disease had been contracted
        
        Each employer had materially increased risk of contracting disease: all employers liable- "joint and several liability"
        
        C received full damages
  - - - Baker v Willoughby [1970]
        
        D negligently injured C's leg, disabling him
        
        Later, he was shot in the same leg during robbery and leg was amputated
        
        Policy causal connection was found between D's negligence and C's disability after operation otherwise, C would receive less compensation than he deserved
        
        Cutler v Vauxhall Motors [1971]-
        D negligently injured C's leg
        
        Injury caused ulcer
        
        C suffered from varicose veins, so immediate operation was necessary
        
        Claimed damages from D for pain and discomfort of operation
        
        SInce C would have probably needed similar operation within 5 years- D's negligence not caise of operation
        
        Novus actus interveniens
        
        A new, intervening act, which breaks the chain of causation
        
        Knightley v Johns [1982]
        
        First D (motorist) caused accident in a one-way tunnel
        
        Second D (police inspector) failed to close entrance to tunnel
        
        C (police constable) ordered by second D to ride back on police motorcycle and close entrance: hit by car whose driver was not negligent
        
        Second D had been negligent
        
        Injury to C was not natural, probable, and a reasonably foreseeable consequence of first D's negligence
        
        Second D's negligence was a new cause, not a concurrent one
        
        It broke chain of causation—second D liable to C, first D not liable to C
        
        If new intervening act is foreseeable, unlikely to break chain of causation:
        
        Scott v Shepherd [1773]
        
        D threw lighted squib into marketplace
        
        Landed on X's stall
        
        X threw it onto Y's stall
        
        Exploded in C's face, blinding him in one eye
        
        Unbroken chain of causation - D is liable
        
        Lamb v Camden LBC [1981]- D negligently broke water main- flooding's C's house
        
        C had to vacate house for repairs- and squatters broke in and caused damage
        
        Squatters not foreseeable to D, therefore no liability for damage caused by squatters
        
        Rescuer principle: Haynes v Harwood [1936]
        
        The plaintiff was a police constable on duty inside a police station, located in a busy street, often attended by many people, including children.
        
        The defendants owned a two-horse van which was left unattended by its driver in the same street.
        
        The driver had put a chain on one of the wheels of the van that was subsequently broken. For some reason, supposedly because a stone was thrown at the horses, they bolted along the busy street alongside with the van.
        
        The police constable saw them from the police station, got out and managed to stop them but sustained injuries, in respect of which he claimed damages.
        
        The King’s Bench ruled in favour of the plaintiff. The defendants appealed to the Court of Appeal.
        
        Held:
        
        The appeal was dismissed.
        
        (1) The defendants are guilty of negligence by virtue of leaving the horses unattended in a busy street.
        
        (2) The defendants must or ought to have contemplated that someone might attempt to stop the horses in order to prevent injury.
        
        (3) The police are under general duty to intervene to protect life and property and therefore, the act of the police constable and his injuries were a direct consequence of the defendant’s negligence.
        
        (4) The maxim volenti non fit injuria does not prevent the police constable from claiming damages for an injury sustained as he did not voluntary agree to take the risk but did it pursuant to his official duty.
- - - - Originally, D was liable for all damage which was a "direct consequence" of a wrongful act, whether or not the type or extent of damage was foreseeable
        
        Re Polemis and Furness, Whihey & Co [1921]: A Stevedore (dockworker) negligently dropped plank into hold of ship
        
        Benzene (flammable liquid) had leaked into hold: movement of plank caused vapours to ignite
        
        Ship destroyed by fire
        
        D liable because damage was direct consequence of negligent act, although destruction of shop was not a foreseeable consequence
        
        The Wagon Mound (no. 1) [1961]
        
        D, ship-onwers, negligently discharged oil into Sydney Harbour
        
        Oil drifted to wharf, owned by C
        
        Manager of wharf was told it was safe to continue welding, as this particular oil wasn't flammable on seawater
        
        Fire started when spark ignited coton waste, which ignited oil
        
        Wharf damaged
        
        D not liable for fire, as the type of damage was not foreseeable, although damage by pollution
        
        The test is whether the type of damage was foreseeable (Although the extent of damage need not be foreseeable)
        
        Wagon Mound (no 2)
        
        same events as Wagon Mound 1
        
        But different-owners of ships, damaged by fire
        
        Lord reid: "some risk of fire would have been present to the mind of a reasonable man in the shoes of the ship's chief engineer".
        
        D liable, as "a real risk" of fire, however small
        
        Both cases rejected Re Polemis and applied the foreseeability test for remoteness.
        
        But Wagon Mound No. 2 showed that low-probability risks can still ground liability if the risk is foreseeable and preventable.
        
        In New South Wales (NSW), law on contributory negligence changed between two cases
        
        in 1961, a fidning of contributory negligence (CN) meant that C received no damages, so C unlikely to argue that the fire was foreseeable
        
        By 1967, law changed so that finding of CN meant that damages would be apportioned between C and D, (ii) C's ships in closer physical proximity to D than C's wharf
        
        (iii) greater scientific knowledge re flammability of oil
        
        What damage is foreseeable?
        
        - Hughes v Lord Advocate [1963]
        
        2 boys playing in hole, dug by Post Office employees, unattended but surrounded with paraffin lamps
        
        Boy took lamp into hole, dropped it, causing explosion and burns to one of them
        
        Explosion unforeseeable, but damage caused by fire was foreseeable
        
        Damage caused by fire indistiguishable from damage caused by explosion. Damage was broadly a type that was foreseeable - D liable
        
        Compare Hughes to Doughty v Turner Manufacturing Co Ltd [1964]
        
        C, employee of D, injured when asbestos lid slipped into vat of boiling sodium cyanide
        
        Unforeseeable eruption caused by chemical reaction resulted, in which C was burned
        
        Although splash injury was foreseeable, eruption was not—D not liable
        
        Compare Hughes to Jolley v Sutton LBC [2000]
        
        D negligently left wrecked boat on land, knowing it was dangerous and alluring to children
        
        C and friend both children, repaired boat, raising it on a car jack and with pieces of wood
        
        C suffered severe spinal injuries when it fell on him while he was underneath it
        
        In CA, D not liable: **C engaged in different activity from normal play and circumstances of accident were
        unforeseeable**
        
        Distinguished from Hughes. HoL allowed C's appeal—appropriate risk was that of children meddling with the boat and risk had materialised
        
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