Negligence

what does the tort of negligence cover

losses that are suffered where there is no contractual relationship

what are 3 elements that a claimant must prove in a negligence claim

1. that the defendant owed the claimant a duty of care

2. that the defendant failed to perform that duty / breached that duty of care

3. that as a result the claimant suffered damage

duty of care

Donoghue v Stevenson (1932) a general principle called the ‘neighbour principle’ was established to determine whether a duty of care was owed for loss suffered due to negligence.
This case established that you owe a duty of care to your neighbours

In the case Mrs Donoghue went to a cafe to have a ginger beer with her friend. The friend bought her a bottle of ginger beer and an ice cream i.e., as Mrs Donoghue did not purchase the ginger beer or ice cream, she did not have a contract with the retailer. The ginger beer came in an opaque bottle so that the contents could not be seen clearly. Mrs Donoghue poured half the contents of the bottle over her ice cream and drank some from the bottle. She found a
decomposed snail in the bottle and suffered personal injury as a result. She claimed against the manufacturer and her claim was successful

breach of duty

The claimant must also establish that the defendant broke the duty of care. He must prove that
the defendant did something that a reasonable man in the circumstances would not have done, or that the defendant failed to do something that a reasonable man in the circumstances would have done. It is up to the injured party (the claimant) to prove the defendant failed to take reasonable care i.e., that they breached their duty of care

what are the several criteria to consider for breach of duty

1. the likelihood of an accident happening

2. the extent of potential harm

3. risk benefit analysis

4. skilful claimants

5. the qualifications claimed by the defendants

6. unhappy outcomes

7. the burden of proof of negligence and res ispa loquitur

the likelihood an accident will occur

The more likely it is that an accident will occur, the more care a defendant needs to take

Bolton v Stone (1952)

a batsman, playing in a cricket ground run by the defendant cricket club, hit a cricket ball over a
17-foot-high fence. The claimant, who was in the street outside the ground, was hit by the ball. A ball had been hit outside the fence six times in 30 years; therefore, the risk of it happening
was foreseeable but small. It was held that the defendant club was not liable. They had taken reasonable precautions in maintaining a 17-foot fence and the risk of a ball going over the
fence was so small that the club was entitled to ignore it

Miller v Jackson (1977)

the claimant’s house, which was close to a village cricket ground, was damaged by cricket balls. Balls were hit over the fence about eight or nine times a season, and the claimant’s property had been damaged more than once. It was held that the defendant cricket club was liable. The risk was sufficiently large to have expected more precautions from the club

the extent of potential harm

This principle states that the greater the risk of harm the more the defendant must do to reduce the risk of harm

Paris v Stepney Council (1951)

the claimant was blind in one eye and the defendant was aware of this disability. The claimant
was working in the defendant’s garage under a vehicle, when a piece of metal went into his good eye and blinded him. At the time it was not standard practice to issue safety goggles.
It was held that the potential severity of damage to the claimant was greater than for other workers (i.e. the increased risk of total (blindness) and, therefore, the defendant was liable for not providing him with goggles

risk-benefit analysis

The standard of care expected must strike a balance between protection for the claimant and not over-burdening the defendant

Latimer v AEC (1953)

A factory suffered a flood which left the floor slippery. The defendant spread sawdust over the
most used walkways (although not those less commonly used) and issued employees with warnings to be careful. The claimant suffered an injury when he slipped in an area that had not been treated with sawdust. The claimant argued the defendant should have shut the factory completely, but it was felt that the extent of the risk and the likely injury did not justify this response. The precautions taken were reasonable in the circumstances

skilful claimants

If a claimant has a particular skill which means he should be aware of any danger, the defendant will not be expected to take steps to protect the claimant from that danger

Roles v Nathan (1963)

two chimney sweeps were overcome with fumes while attempting to seal a hole in a
flue. The boiler was alight but should have been switched off when the work took place. It was held the defendant was not negligent. The sweeps should have known, given their
experience, that the boiler should have been extinguished before work began

Qualifications claimed by the defendants

If a defendant holds himself out as having a reasonable degree of skill and care i.e., because they hold qualifications in a certain area, they will be liable if they fail to act with that degree
of skill and care

Bolam v Friern Hospital Management Committee (1957)

the claimant sustained a fractured pelvis whilst undergoing electro-convulsive therapy (ECT) at the defendant’s hospital. He made three complaints (1) the doctor had not warned him of the risks (2) he had not been given relaxant drugs (3) he had not been restrained during the treatment.

At this time, the opinion was divided amongst doctors as to the best way to administer this treatment. It was held that the doctor was not in breach of his duty because at the time, the way the treatment was administered, was accepted (just not by everyone)

Phillips v William Whitely (1938)

The claimant contracted a disease after having her ears pierced by the defendant. It was held that the defendant was not liable because the standard of care required by the defendant was that of a skilled and competent ear piercer, not a medical practitioner. i.e., the defendant had met the standard required and he was not negligent as he had acted in accordance with the level of care and skill which could be expected from a person with his training

good practice

If a defendant complies with accepted and current good practice this

Thompson v Smiths Ship Repairers Ltd (1984)

the defendant employer did not provide ear protectors to their employees. This was held not to amount to a failure to take reasonable care until they had been alerted to ensure the workers used them via a government circular

unhappy outcomes

Even though all reasonable care has been taken, the claimant may still suffer damage. Proof of damage to the claimant does not necessarily prove the defendant failed to take reasonable care

The burden of proof in negligence and ‘res ipsa loquitur’ (the thing speaks for itself)

The burden of proof in negligence normally falls on the claimant and he must prove his claim on the balance of probabilities. However, if the doctrine of ‘res ipsa loquitur’ applies, the burden falls on the defendant to show he was not negligent.

In such cases negligence can be inferred from the facts and the burden of proof transfers from the claimant to the defendant and the defendant must explain how the accident happened without negligence on his part.

what are the conditions that must be present for the rule to apply

1. the defendant must have exclusive control over the things that caused the damage.
2. the cause of the accident must be such as would not normally happen without negligence
3. the cause of the accident must be unknown

Scott v London and St Katherine Docks Co [1885]

the claimant, a dockworker, was injured when large heavy bags of sugar fell from the open door of the defendant’s warehouse. It was held that the doctrine of res ipsa loquitur applied, i.e., the bags of sugar could not have fallen from the door of the warehouse without fault on the part of the defendant. The defendant was liable for the claimant’s injuries

consequential loss / damage

For a claimant to succeed in a negligence claim, he must not only show that the defendant owed him a duty of care and breached that duty of care, but he must additionally prove that the damage or loss he suffered was as a result of the defendant’s breach

what are the two conditions for consequence of loss / damage

causation in fact and causation in law

causation in a fact

To succeed in a claim, there must be a causal link between the breach of duty by the defendant, and the damage suffered by the claimant. The claimant must prove, on the balance of probabilities, that the defendant’s negligence caused or materially contributed to the injury or loss sustained

Barnett v Chelsea & Kensington Hospital Management Committee (1969)

a hospital doctor failed to see and examine a patient who was vomiting (from arsenic poison). It was held the failure to see and examine a patient could be negligence (i.e. the doctor owed the patient a duty of care and breached the duty by failing to attend) but here the negligence had not caused the death of the patient. He would have died anyway

McWilliams v Arrol (1962)

The claimant’s husband was not wearing a safety belt when repairing a roof. Belts were normally available but on the day of the accident, the shed in which the belts were stored, was locked. The claimant’s wife argued that if the belts were available her husband would not have fallen. Her claim failed as it was shown that even if the belts had been available her husband would probably not have worn one

causation in law

This rule states that any damage must not be too remote which means it must be reasonably foreseeable. It follows that the defendant may not be liable for all results of the breach. This is an objective test, and the defendant is only responsible for the damage which a reasonable man would have foreseen as a likely consequence of his action.

Overseas Tankships & Engineering v Mot Dock & Engineering (The Wagon Mount No. 1) (1961)

The defendants spilt oil from their ship. The oil spread to a wharf where welding was taking place. The defendants found that oil would not ignite in the water so carried on welding. Three days later, cotton waste floating in the oil, ignited from a welding spark. The claimant’s wharf was destroyed. It was held that although the fire was as a direct result of the oil spillage, it was too remote, as no one knew oil could ignite in this way, i.e., it was not reasonably foreseeable.

Hughes v Lord Advocate (1963)

Post Office workers left a manhole open surrounded by paraffin lamps. While carrying the lamps, the two boys climbed into the manhole. One of the boys dropped one of the lamps, causing an explosion. Both boys suffered severe burns. It was held that the defendant was liable, as the type of harm (burning from the lamp) was foreseeable even if the exact way in which it occurred (the explosion) was not

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 claimant, aged 14, and a friend were injured when they tried to jack up the boat to repair it. It was held that the Council was liable as some harm was foreseeable, even if the precise way the harm occurred could not be foreseen

Intervening acts (novus acts interveins)

The situation of an intervening act usually applies in circumstances where the negligence of the defendant has triggered a sequence of events leading to the harm suffered by the claimant. The intervening event may be the act of the claimant himself, or a third party over which the defendant had no control.

The court must decide whether the new act is sufficiently serious to be the cause of the damage rather than the original act

Sometimes an intervening act will break the chain of causation and if this is the case the defendant will not be liable for damage caused after the break

McKew v Holland & Cubitts Ltd (1969)

the defendant negligently injured the claimant’s leg which meant it sometimes gave way. The claimant attempted to descend a steep stairway without using the handrail, and he suffered injuries when his leg could not support him. In fact, he jumped to avoid falling headfirst, and badly injured his ankle, causing a permanent disability. It was held the defendant was not liable for the injuries sustained in the fall. When the claimant descended the stairs, it was an intervening act which was not reasonably foreseeable to the defendant

eggshell / thin skull rule

The defendant must take his victim as he finds him. If a victim has a particular susceptibility or weakness (a thin skull or a weak heart, for example) and suffers a greater injury than a normal person, the defendant will be liable to the full extent of the claimant’s injuries

Smith v Leech Brain & Co (1962)

The claimant’s husband was splashed on his lip with molten metal which was a reasonably foreseeable splash injury. However, his body cells were pre-cancerous at the time, and he subsequently developed the disease and died. It was held that the defendant was liable even though the only foreseeable injury was a burn

defences

• Volenti non fit injuria (voluntary assumption ofrisk/consent)

• Contributory negligence

Volenti non fit injuria (voluntary assumption ofrisk/consent)

A defendant will not be liable for injury to a claimant where the claimant freely consents to take the risk involved. The defence is a complete defence; if the defendant successfully proves consent, then he will not be liable to the claimant for any damages

Smith v Baker (1891)

The claimant was drilling holes in a quarry and had complained about the danger of the defendant’s crane moving rocks above him. He was ordered to continue working and was injured when a stone fell on him. It was held that the claimant was aware of the danger but there was no evidence that he had voluntarily consented to the risk of injury. The defence of consent failed

contributory negligence

Stone v Taffe (1974) – the claimant’s husband was killed when he catapulted himself down an unlit staircase in the defendant’s pub. The claimant’s wife and friend had made their way down safely before the deceased. It was held that damages should be reduced by 50% to take account of the lack of care taken by the deceased