Negligence (duty,breach,damage)

• The tort of negligence

  • Key case: donoghue v Stevenson
  • Established the tort of negligence
  • House of Lords established the ‘neighbour principle’
• Duty of care

  • the neighbour principle’ was used by judges for a number of years but it was cleared that it was not sufficient to deal with the new situations coming before the court
  • So it was updated to a three part test in the case of Caparo v Dickman
• There part test

  An update of the neighbour test to show is ordered duty of care in negligence. All three parts have to be satisfied in order
• damage or harm reasonably foreseeable?

  • Reasonable person could foresee that damage or injury could be caused to another person by their actions or omissions
  • Whether injury/damage is reasonably forseeable depends on the facts of the case
  • kent v griffith: f - ambulance called to take claimant, suffering from an asthma attack and failed to arrive in reasonable time. C suffered a respiratory arrest.
  • lp: decided it was reasonably foreseeable that the claimant would suffer further illness if the ambulance did not arrive promptly
• Proximity relationship

  • Even if the harm is reasonably a duty of care will only exist if the relationship between the claimant and defendant is sufficiently close or proximate - can be considered as the previous neighbour test
• Proximity relationship

  Bourhill v young:

  • Pregnant woman who suffered a stillborn baby after witnessing a motorcyclist death sued the motorcyclist relatives for a duty of care
  • LP: HOL rule that motorcyclist cannot anticipate causing mental injury to a bystander making her proximate and not owed duty of care
• Proximity relationship

  McLoughlin v O’ Brien:

  • C suffered severe shock, organic depression, and personality change after the husband and children were involved in a serious road accident caused by a lorry drivers negligence
  • LP: HOL but driver owed her duty of care and extended the class of persons considered proximate to the event
• Fair, just reasonable to impose a duty

  • The Caparo test’s 3rd considers imposing a duty of care under defendant based on foreseeability and proximity tests
  • Courts must weigh the benefits for society and potential future claims
  • However, courts are hesitant to impose a duty of care on public authorities like police as it could lead defensive policing and low standards of policing
• Fair, just and reasonable to impose of duty

  Hill v chief constable of West Yorkshire:

  - Yorkshire ripper a serial killer targeted woman in Yorkshire north England. the C’s daughter was the last victim before his arrest

  • LP: HOL ruled that the police’s duty of care to her daughter was injust and unreasonable as they knew the killer might strike again without knowing who the victim might be
• Breach of duty


  Meaning of breach:

  • The claimant has to prove that the duty of care has been breached by the defendant failing to reach the required standard of care
  • The standard is objective. That is the ‘reasonable person’
• Factors to consider in whether there has been a breach

  • Are the parties learners/children/professional?
  • Special characteristics
  • Size of the risk
  • Appropriate precaution
  • Unknown risks
  • Public benefit
• Are the parties/learners/children/professional?

  Bolam v Friern Barnet Hospital:

  • claimant suffering with mental illness and treatment to be given ECT signed consent form are not told about risk of broken bones - suffered broken pelvis
  • LP: professionals judged according to standards in profession
• Parties/learners/children/proffesional?


  Nettleship v Weston:

  • mr. Nettleship - driving lessons third lesson and felt to straighten up after turning a corner, hit Lampost fell on car injuring him.
  • LP: learners judged at the standard of the competent more experienced person
• Parties/learners/children/proffesional?

  Mullins v Richard:

  • two girls- 15 play fighting with plastic rulers and the ruler snapped and fragments entered eyes losing all useful sight in eye
  • LP: judged at standard of the defendants age at the time of the accident
• Special characteristics

  Paris v Borough Council:

  • Mr. Paris is blind in the eye and employers knew.
  • What given an involved small risk of injury to eyes are not given protective goggles - good idea damaged and became totally blind
  • LP: the claimant may be more vulnerable to injury. The defendant will be expected to uphold a higher standard of care.
• Size of the risk

  • bolton v stone :
  • cricket ball hit lady parcel outside cricket ground. Evidence - 17 foot high fence around the ground and cricket was long away from fence. Cricket balls had only been hit out on the ground six times and 30 years before the incident.
  • That had been hit out of the ground and that the cricket club had done everything it needed to do in view of low risk
  • LP: greater to be taken if chance of injury
• Appropriate precautions


  Latimer vs AEC Ltd:

  • Factory flooded and floor slippery
  • sawdust - minimise the risk of slipping and workers went back in
  • Despite one worker that slipped and injured himself
  • lp: risk involved is balanced against the cost and effort of precautions
• Unknown risks 


  Roe v . Minister of Health:

  • Anaesthetic and kept in glass tubes and sterilised by cleaning solution
  • Not known that invisible cracks could occur in glass and claimant was paralysed by some contaminated anaesthetic
  • LP: risk not known at the time of the accident there can be no breach
• Public benefit


  Watt v Hertfordshire CC:

  • Road accident - fire service called to release trapped woman from underneath a lorry
  • Claimant injured when Jack had slipped and fell on him on the way to the accident.
  • LP : greater risks can be taken in emergency situations
• Public benefit


  Day v high-performance sports:

  • Claimant who is an experienced climber fell from indoor climbing wall and suffered serious injuries
  • Had to be rescued from war by duty manager and became frozen in her position
  • The way manager rescued her was inappropriate causing her fall
  • LP: duty of care not breached in view of emergency
• Damage - factual causation

  • but for the breach would the damage have occured
  • The 'but for' test:
  • as with criminal law the 'but for' term is applied
  • a good case - Barnet v chelsea and kensington
• Barnet v chelsea and Kensington

  • 3 watchmen went to A&E complaining of sickness after drinking tea made by a fourth man - A nurse phoned the doctor and doctor didn't examine them - told them to go home - one man died hours later from arsenic poisoning - his widow sued the hospital.
  • LP - 'but for' test - but for d's act or omission / the injury would not have happened the claimant would have died anyway
• Is the damage forseeable?

  damage cannot be too remote from the breach
• The wagon mound

  • fuel oils had been negligently spilled from the d’s ship on to water in sydny harbour .
  • 2 days later oil caught fire from welding. fire spread to the c’s wharf and burnt it down
  • LP- injury or damage can be claimed if reasonably foreseeable. Resulting fire was too remote from the breach
• Hughes v Lord Advocate

  • Post office workmen left a manhole unattended covered only with a tent and with a paraffin lamp by the hole.
  • the c , an 8 year old and friend climbed into the hole - as they climbed out the boys knocked one of the paraffin lamps into the hole . This caused an explosion which badly burnt the claimant
  • LP - consequence foreseeable even if exact cause of injury not foreseeable
• damage - thin Skull Rule

  • Smith v Leech Brain Co
  • Man burnt on lip by molten metal
  • Had a preexisting cancerous condition , brought about full cancer
  • As burn on lip was foreseeable the company were liable for the full damage
• Res ispa Loquitor

  • burden of proving the negligence is on the claimant , on the balance of probabilities
  • in some situations - difficylt for c to know exactly what happened , even though it seems obvious that d must have been negligent
  • Example of this - after an operation in hospital , a patient is found to have a mab left inside of him
  • Patient does not know how exactly duty of care was breached as he would have been unconscious throughout the whole operation
  • Only knows that after operation there is a swab inside of him + suffered injury as a result
• Res ispa loquitor


  In such a situation the rule of res ispa loquitor can be used - means the thing speaks for itself
• RIL


  The c has to know :

  • The d was in control of the situation which caused the injury
  • The accident would not have happened unless someone was negligent and
  • there is no explanation for the injury
  • if c can show these three points / then burden of proof moves to the d who has to prove that he was not negligent
  • example if this is the rule in Scott v London + st Katherine docks
• Scott v London + st Katherine docks

  • C was injured by 6 heavy bags of sugar - had fallen from d’s warehouse
  • C did not know and could not prove what had happened to make the bags fall and could only prove that he was injured by them
• Elements of RIL were present :

  • Sacks fell from warehouse which was under the d’s control
  • Heavy sacks do not fall unless someone was negligent
  • No other explanation for the sacks to fall
  • court decided that the d’s were liable as they were unable to prove that they had not been negligent