The Elements of Negligence

definition of negligence

“failing to do something which the reasonable person would do or doing something which the reasonable person would not do” Baron in Birmingham Waterworks (1856)

abstract requirements:

every claimant wishing to sue a defendant in negligence must prove that:

• duty: a duty of care is owed to the claimant by the defendant

• breach: that a duty was breached by the defendant

• causation: the breach is the cause of loss or harm

stage 1: establishing a duty of care

determines whether one party owes a legal obligation to avoid causing harm to another

establishing a duty of care case example: Donoghue v Stevenon’’s 1932

(pivotal case):

• ratio: Lord Atkinson developed the neighbour principle stating “you must take reasonable care to avoid acts or omissions which can reasonably foresee likely to injure your neighbour” — this established the foundation for negligence but left the test for duty of care broad and undefined

establishing a duty of care case example: Caparo v Dickman 1990

• brief facts: Caparo industries bought shares of a company based on an inaccurate financial report audited by Dickman. When they suffered losses, they sued the auditors for negligence

• legal issue: did the auditors owe a duty of care to Caparo, even though the accounts were prepared for general shareholders and not specifically for their use

• ratio: It created the caparo test

what is the caparo test?

House of Lords refined the duty of care test, introducing a 3 staged test:

1. Foreseeability — was harm to the claimant reasonably foreseeable?

2. Proximity — was there a sufficiently close relationship between the parties

3. is it fair, just and reasonable — should a duty of care be imposed based on policy considerations (wider impacts on society, public services and the law)?

foreseeability case example: Kent v Griffith (2000)

• brief facts: a delayed ambulance response worsened a patients condition. C sued for negligence

• ratio: ruled that harm was reasonably foreseeable and the ambulance service owed a duty of care

• reasoning: a delay in emergency medical care predictably worsens a patients

Proximity: Bournhill v Young (1943)

• brief facts: a pregnant woman suffered shock and miscarriage after hearing a motorcycle crash but was not directly involved

• ratio: ruled that no duty of care as there was no close relationship between the claimant and the motorcyclist

• reasoning: C was outside the zone of danger meaning there was no sufficient proximity to establish duty

Fair, Just and Reasonable: Hill v Chief Constable of West Yorkshire 1990

• The mother of a Yorkshire Ripper Victim sued the police for failing to catch him sooner

• ratio: ruled no duty of care as imposing liability on the police for general crime prevention was not fair, just or reasonable

• reasoning: holding the police liable would lead to defensive policing and interfere with law enforcement duties

Robinson v Chief Constable of West Yorkshire (2018)

• brief facts: police officers attempted to arrest a drug dealer in a busy street. During the struggle they knocked over an elderly woman, causing serious injuries. She sued the police for negligence

• legal issue: did the police owe a duty of care to a bystander as a direct result of their actions, and should the Caparo test apply?

• ratio: The Supreme Court ruled that the police owed a duty of care, as the harm was foreseeable and resulted from their positive actions. the court refined how caparo test should be applied

  • caparo test is only necessary in novel cases

  • where duty hhas already been established through precedent, courts should not rely on Caparo but on existing law

abstract factors to consider when proving a breach of duty occurred

courts consider:

• the standard of care expected

• the foreseeability of harm (the degree of risk)

• the degree of risk & the precaution taken

The standard of care case example: Blyth v Birmingham Waterworks (1856)

‘the standard demanded is not of perfections but of reasonableness’ - Baron Anderson

• the ‘prudent’ and ‘reasonable’ man

standard of care case examples (facts will be seen in GNM)

• Bollam v Frieran Hospital Management

• Nettleship v Weston

• Mulin v Richards

degree of risk:

• the degree of risk is relevant in terms of how cautious the defendant ought to be

• precaution need only ever be reasonable

degree of risk case example: Paris v Stepney Borough council

• brief facts: C, who had sight in only one eye was not provided with protective goggles at work. He suffered an injury to his good eye and was left completely blind

• key point/ratio: greater care is required when the potential consequence of harm are more serious. The employer should have considered the C’s vulnerability — Breach was found

degree of risk case example: Bolton v Stone

• brief facts: a cricket ball was hit out of the ground and struck a passer by. This had happened very rarely despite precautions like a high fence

• key point/ratio: where the likelihood of harm is very low and reasonable precautions are in place, there is no breach. Risk must be significant to require further action — No breach was found

degree of risk case example: Latimer v AEC ltd

• brief facts: a factory floor became slippery after flooding, sawdust was spread to reduce the danger, but someone still slipped

• key point/ratio: only reasonable precautions are required — not every possible measure to eliminate risk. the employer had done enough — no breach was found

degree of risk case example: Watt v Hertfordshire County Council

• brief facts: a fireman was injured when equipment not secured properly fell during an emergency response. the journey was urgent and intended to save a life

• key point/ratio: in emergency situations, greater risks may be justified if the action serves a socially valuable purpose. the urgency outweighed the risk — No breach

foreseeability of harm:

concerned with whether the risk of harm ought to have been known at the time

foreseeability of harm case example: Roe v Minister of Health (1954)

• brief facts: 2 patients were paralysed after being given anaesthetic that had been contaminated with an invisible crack in the lass ampoules

• ratio: D’s are judged according to the knowledge available at the time. unknown risks are not foreseeable — no breach

proof that the breach was the cause of harm/loss

• for this to be established it must satisfy the

  • ‘but for’ test

  • ‘remoteness’ test

‘but for’ test case example: Barnett v Chelsea and Kensington Hospitals

• brief facts: Mr Barnett arrived at the hospital, with a complaint of severe stomach pains and vomiting. A nurse consulted the doctor on duty, who instructed her to send Mr Barnett home and advise him to contact his GP in the morning. Mr Barnett died five hours later from arsenic poisoning

• legal issue: was the hospital liable for negligence despite the doctor failing to examine the patient

• ratio: hospital as not found liable, as the doctor’s failure to examine Mr B did not cause his death. with the BFT Mr B would have still died even with medical intervention, causation was not established

‘remoteness’ of damage (legal causation)

• for a negligence claim to succeed, the damage must not be too remote from the D’s negligent act

• this limits liability to consequences that could reasonably have been anticipated, rather than those that are entirely unexpected or extraordinary

‘remoteness’ case example: The Wagon Mound Case (1961)

• brief facts: D’s ship negligently leaked furnace oil into Sydney Harbour. The oil spread to a nearby wharf where welding operations were taking place. Spark from welding ignited the oil, causing extensive fire damage

• legal issue: was the damage caused by fire too remote to be recoverable, given that D could not reasonably have foreseen this specific consequences of the oil spill

• ratio: held that the damage was too remote, as the risk of fire was not reasonably foreseeable consequence of the oil spill. This case established the modern remoteness of damage test

  • D is only liable for harm that is reasonably foreseeable result of their negligent act or omission

‘remoteness’ case: Hughes v Lord Advocate (1963)

• brief facts: 2 young boys entered an unattended worksite where a manhole had been left open and surrounded by a tent and paraffin lamps. The lamps had been left to warn others of the danger/. One boy took a lamp into the manhole and dropped it, causing an unforeseeable explosion that resulted in severe burn

• legal issue: was the harm suffered by the boy too remote, given that the explosion itself was unforeseeable

• ratio: held that the damage was not too remote. while the explosion itself was unforeseeable, it was foreseeable outcome, the burn from mishandling the lamp

  • established that as long as the type of harm is foreseeable, the defendant can be liable even if the exact was in which it occurs is unexpected

‘Thin Skull’ rule: Smith v Leach Brain and Co (1962)

• brief facts: C’s husband suffered a burn to his lip due to the D’s negligence at work. The burn triggered a pre-existing condition, pre-cancerous — which developed into cancer, resulting in his death three years later. His widow brought a claim under the Fatal Accidents Act

• legal issue: was the defendant liable for the death, even though the cancer was an unusual and unforeseeable consequence of a minor injury?

• ratio: held the defendant liable for the full extent of the harm, applying the thin skull rule, although cancer was not a foreseeable outcome, the burn was and it led to V’s death

Res ispa loquitur

• latin for : ‘the thing speaks for itself’

• it’s the principle that the mere occurrence of some types of accidents is sufficient to imply negligence

to rely on this C must show 3 things:

1. The defendant was in control of the situation or object that caused the injury

2. the accident would not happen without negligence

3. there is no other reasonable explanation for what happened

Res Ispa loquitor case example: Scott v London 1865

• brief facts: a dock worker was injured wen sacks of sugar fell on him from a warehouse. He was unable to prove how or why the sacks had fallen

• legal issues: could negligence be presumed when there was no direct evidence of what caused the accident

• ratio: res ispa loquitur, holding that sacks do not fall without negligence. Since the D was in control of the area and the incident was the type that would not usually happen without someone being at fault, the burden of proof shifted to the defendant to prove they were not negligent