Liability in negligence

• Negligence


  Three elements that need to be proved:

  1. There has to be some sort of damage resulting from the defendant's negligence.

  2. The claimant must be able to prove that the damage was caused by the defendant's breach of duty.

  3. The claimant must be able to prove that the damage was not too remote; that it was reasonably foreseeable.
• Causation


  1. But for the defendant's breach of duty, would damage or injury have occurred?

  2. Claimant must show a causal link between D's act or omission and the damage caused.
• Remoteness of damage


  It must be established that the damage was not too remote, i.e. that it is not too removed from the defendant's negligence. The test for remoteness is whether there is a direct, foreseeable causation.
• Foreseeability of damage


  A defendant may still be liable even if the extent of the injury was not foreseen.
• Chain of causation


  The link between the defendant's act or omission and the injury or loss suffered.
• Novus actus interveniens- R v Jordan


  An intervening act that may break the chain of causation meaning that the defendant is not liable for the injury or loss suffered by the claimant.
• Res ipsa loquitur


  Latin for 'the facts speak for themselves'. If it is clear that the harm could not have arisen unless the defendant was negligent, the court may be prepared to infer that the defendant was negligent without hearing detailed evidence of what was or was not done.
• Thin skull rule


  The defendant must take the claimant as they find them as regards to their physical characteristics.
• Secondary victim


  A person who witnesses an event or its immediate aftermath, but does not suffer direct physical injury.
• To be a secondary victim, a claimant must witness the event with their own unaided senses e.g. hear the event in person or view its immediate aftermath. They must be in close physical proximity to the event.
• People who see the event on television, hear it on the radio or hear about it from a third party are unlikely to be classified as secondary victims.
• Breach of duty


  Failure to fulfil duty of care
• In exceptional circumstances, a person with no sufficiently proximate relationship may be classed as a secondary victim.
• Elements of negligence


  • Duty of care
  • Breach of duty
  • Causation
• Reasonable man test


  What would a reasonable person have foreseen in this particular situation, rather than what did this particular defendant foresee
• Reasonable man test


  • Omission to do something which a reasonable man would do or doing something which a prudent and reasonable man would not do
• Reasonable man test


  • Nettleship v Weston (1971) - learner driver expected to meet same standard as qualified driver
• Tests for breach of duty

  • Degree of probability that harm will be done
  • Magnitude of likely harm
  • Cost and practicality of preventing risk
  • Potential benefits of the risk
• Nature of emergency services' work does not make them immune from negligence claims
• Special characteristics of defendant

  • Nettleship v Weston (1971) - standard is that of ordinary, normal driver
  • Professional persons - expected to show degree of competence usually expected of typical skilled member of profession
  • Mullin v Richards (1998) Children - standard of care is that of ordinarily careful and reasonable child of same age
• Liability in negligence


  The tort of negligence is the most common tort. It covers a wide range of situations including medical negligence, road traffic accidents and faulty workmanship. Someone is negligent if they act carelessly to another person to whom they are legally obliged to act carefully, and if the carelessness causes the other person to suffer some harm or loss.
• Negligence


  Failing to do something which the reasonable person would do or doing something which the reasonable person would not do
• Elements of negligence


  • Duty of care

  2. Breach of duty

  3. Causation

  4. Damage
• Duty of care


  Only those who are owed a duty of care by a defendant will be able to claim a remedy for negligence.
• Donoghue v Stevenson (1932)


  • Mrs Donoghue was in a cafe in Paisley in Scotland. She was drinking ginger beer from an opaque bottle that had been bought for her by her friend. When her glass was topped up, the remains of a decomposed snail fell from the bottle. The shock of the snail, together with the thought of what she had already drunk led Mrs Donoghue to suffer shock and severe gastroenteritis.
• Neighbour principle


  Lord Atkin stated that there was a 'neighbour principle' which imposes a universal duty to take care. Lord Atkin said: 'You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbours.' He defined 'neighbour' as 'anyone who would be so directly affected by your act that you ought reasonably to have them in your contemplation'.
• Approaches to establishing duty of care

  • Follow precedent if possible

  2. If no precedent exists, develop case law incrementally (step-by-step) from similar cases

  3. If no similar cases exist and the situation is completely new only then revert to the Caparo test
• Caparo test


  1. Foreseeability

  2. Proximity

  3. It is just, fair and reasonable to impose a duty of care?
• Mulcahy v Ministry of Defence (1996)


  • The claimant was a soldier who had served in the Gulf War, where he had suffered damage to his hearing. The Court of Appeal held that although both factors of foreseeability and proximity were present, the facts required it to consider this a policy issue. The Ministry of Defence did not, therefore, owe a duty of care to servicemen in such battlefield situations.
• Alcock v Chief Constable of South Yorkshire Police (1991)


  • This case involved people who suffered 'nervous shock' as a result of witnessing the Hillsborough stadium disaster, when 95 people were killed as a result of a crush. It was decided that it would not be just, fair and reasonable to impose a duty of care on the police in respect of a claimant who was at the other end of the ground to the crush, in which his brother-in-law was involved.