Chapter 23: Negligence
True or false
If it is false correct the sentence to make it true.
1. Negligence is an area of the law of tort
2. Tort is French for cake
3. Purpose is to provide remedies when one person has been affected by another’s
acts or omissions
4. The purpose is to punish the defendant.
5. A damage in law is when an object is broken
6. Damages in law could take the shape of money.
7. Settles disputes between individuals
8. Civil case started by the police on behalf of the victim who suffered the loss
9. If you lose a civil case, you must pay a fine.
10. The burden of proof is on the claimant not the defendant
11. The standard of proof is beyond a reasonable doubt.
12. Juries are rarely used in civil cases.
The fundamental principles:
In order to have a liability in negligence you need to prove three separate elements. Write a
definition for each of them.
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1.Duty
2.Breach
3.Damage
4.Damages
Chapter 23: Negligence
Part 1 Duty of care
•
Objectives: Explain what is meant by the term ‘duty of care’
•
Identify and explain the ‘neighbour test’ and the Caparo three-part test
•
Explain each part of the Caparo test by reference to decided cases
Revision:
•
Negligence is a tort (or civil wrong)
•
Most important civil action
•
Need to show:
–
D owed a duty of care
–
D breached that duty
–
C suffered damage as a result of that breach (Causation)
–
The damage suffered was not too Remote
What is negligence?
Blyth v Birmingham Waterworks Co (1856) J Ex 212
A wooden plug in a water main became loose in a severe
frost. The plug led to a pipe which in turn went up to the
street. However, this pipe was blocked with ice and the
water instead flooded the claimant’s house. The claimant
sued in negligence.
Principle – Alderson B defined negligence as – “Negligence
is the omission to do something which a reasonable man
guided upon those considerations which ordinarily
regulate the conduct of human affairs, would do, or something which a prudent and
reasonable man would not do” (emphasis added). This case defined the meaning of
negligence in the famous statement of Baron Alderson.
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Summarise in your own words:
Chapter 23: Negligence
Duty of care (continued)
Lord Atkin in Donoghue v Stevenson [1932]
The neighbour principle
1.
2.
3.
4.
Read the extract from the judgment and summarise the principle in simple notes on the box
above.
“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be
likely to injure your neighbour. Who, then in law is my neighbour? The answer seems to be persons
who are so closely and directly affected by my act that I ought reasonably to have them in my
contemplation as being so affected when I am directing my mind to the acts or omissions which are
called in question.”
Who is your neighbour according to this passage?
Caparo Industries plc v Dickman (1990) 1 All ER 568
modernized and added the Donoghue v Stevenson.
The case considered the liability of an auditor for financial loss
suffered by investors. However, it also set out the three points
which a court must consider to establish whether a duty of care
existed.
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Principle – The three points are:
1.
Reasonable foresight of harm
2.
Sufficient proximity of relationship
3.
That it is fair, just and reasonable to impose a duty
Chapter 23: Negligence
Duty of care (continued)
Task: Look at the facts of Donoghue v Stevenson (1932). Imagine that case was coming before the
court for the first time today. Apply the Caparo three-part test to the facts and decide whether a
duty of care would be found to exist.
1. Reasonable
foresight of
harm
Answer and explain
2. Sufficient
proximity of
relationship
Answer and explain
3. That it is fair, Answer and explain
just and
reasonable to
impose a
duty
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Is there is duty of care?
Chapter 23: Negligence
Duty of care (continued)
Caparo test part 1: Foreseeability
•
Objective test – what would the reasonable person do?
•
Think of Donoghue – a reasonable drinks manufacturer would foresee that a consumer
might be injured
Kent v Griffiths (2000) 2 All ER 474- foreseeable that an injured person waiting for
an ambulance may have more severe injuries if there is a delay
Facts: D the London Ambulance Service. C, an asthmatic who suffered an attack. Her doctor
telephoned for an ambulance that took 30 minutes to arrive. C suffered a respiratory arrest.
(Verdict: Liable)
Caparo test part 2: Proximity
•
Related to foreseeability
•
Means closeness
•
By space, time or relationship
•
Space and time relatively obvious
•
Relationships only relevant when the loss is foreseeable to a person in D’s position
Bourhill v Young (1943) – no proximity in space
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D was a motorcyclist fatally injured. C, a pregnant woman was
getting off a tram who heard the motorcycle go past and heard
the collision. She did not see the actual accident but decided to
go and look for herself. When she arrived she saw the blood and
aftermath of the accident which caused shock and,
subsequently, a miscarriage.
Principle – C was not owed a duty of care as she was in a safe place and had not seen the accident
so there was no proximity in space and it was not reasonably foreseeable that accident would cause
her to suffer such injuries.
Verdict : Not liable
Chapter 23: Negligence
Duty of care (continued)
McLoughlin v O’Brien (1983)- There was proximity of relationship (mother)
Mother and child
Facts: D was a driver who caused an accident, which injured C’s family. C visited the hospital and saw
her injured husband and daughters, one of whom had died. What she saw and heard from witnesses
caused severe nervous shock. Distance and time are factors, but not legal restrictions.
Ratio: – Although not present at the accident, it was a reasonably foreseeable consequence of the
defendant's negligence. The proximity of the relationship was the deciding factor in establishing the
duty of care in this case. Even though there was no proximity in time or space the proximity of
relationship was the deciding factor in establishing the duty of care.
Verdict: Liable
Keep in mind that:
•
In most cases proximity is not an issue
•
This is because accident victim is part of the event
•
Where a person learns about an accident later or sees it from a safe distance and where the
injury is psychiatric then relationship is the key factor
Why was the outcome different on these two cases?
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What is the floodgates argument?
Chapter 23: Negligence
Duty of care (continued)
Caparo test part 2: Reasonableness
•
Is it fair just and reasonable to impose a duty of care?
•
Mainly a matter of public policy
•
Courts have been concerned about the floodgates issue
•
Can be seen in the claim driven society of the ambulance chasers
•
Because of this member of the public sector are less likely to have liability imposed on them
Hill v Chief Constable of West Yorkshire - police need to be able to act
without worry about legal action in negligence
Facts: D the police failed to catch the "Yorkshire Ripper". C, the mother of the last (13th) victim sued
the police for negligence alleging inefficiency and errors in their handling of the investigation.
Ratio: The police owed no duty of care towards the daughter to protect her from the Ripper. Some
further ingredient is invariably needed to establish the requisite proximity of relationship between
the complainant and the defendant; she had been at no greater risk than most other members of
the public had. This meant it was not possible to foresee the actual injury to this particular claimant.
Veredict: Lost
Reeves v MPC
- Police had a duty to prevent suicide- contributory negligence.
Facts:
Police arrested a prisoner who was a known suicide risk
committed suicide whilst in their custody.
Officers left open the hatch of the cell door and he took the
opportunity to tie his shirt to it and thus strangle himself.
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Held: that the duty of care had been breached but also said
that suicide was a novus actus interveniens
Note: This is an as persons of sound mind were generally taken to be responsible for their own
actions.
Chapter 23: Negligence
Duty of care (continued)
Caparo test part 2: Reasonableness (Continued)
Vellino v Chief Constable of Greater Manchester [2001])
Reasonableness has not extended to escaping prisoners- Prisoner not benefiting from committing
a crime
Facts: The Claimant was a known offender and had a string of
convictions. He was seriously injured when he jumped out of a second
floor window having just been arrested. The police were aware that he
was likely to escape. The Claimant suffered a fractured skull, brain
damage which rendered him totally dependent on others for support. He
brought an action against the police arguing that having arrested him,
they owed him a duty of care to prevent him injuring himself.
Held: The Defendant denied owing a duty of care and also raised the
defence of ex turpi causa in that it was a criminal offence for an arrested
person to abscond.
Hall v Simons [2000] -Lawyer can be sued for negligence
One of several cases (conjoined cases) on similar issues, where
claimants had done less well than they would but for negligence of
their legal advisers.
Principle – It was no longer in the public interest that advocates should
enjoy immunity from being sued for negligent, although the fire service
have limited protection
Duty of care summary : How to determine if duty of care exists in the exam.
First, we must determine if the defendant owns the claimant a duty of care by applying the Caparo test.
1. Was there reasonable foresight of harm (Objective test)
Kent v Griffiths - foreseeable delay in ambulance = more severe injuries
2. Sufficient proximity of relationship
Bourhill v Young – No proximity not in the place and not related
McLoughlin v O’Brien (1983)- There was proximity of relationship (mother)
3. Is it is fair, just and reasonable to impose a duty
Hill v Chief Constable of West Yorkshire – Not fair didn’t know who would be the victim
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Reeves v MPC - Police owed duty because they knew D was a risk of suicide
Vellino v Chief Constable of Greater Manchester- No duty as D was committing a crime
Hall v Simons [2000] -Lawyer can be sued for negligence
1.
Chapter 23: Negligence
Duty of care (continued)
Exam Practice
Mark and Laura, university students, were at a music festival organized by ARG Ltd. They were sitting
on the ground in the main tent listening to a band, when one of the tent supports became detached
and the tent collapsed. Mark suffered severe head and neck injuries.
Consider the scenario and decide whether a duty of care exists (see box on previous page so you
know what to include). Upload your answer on the VLE so it can be marked.
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Explain the law (10 marks) A01
Explain the law (15 Marks) A03
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Chapter 23: Negligence
Chapter 23: Negligence
Part 2: Breach of Duty
Objectives:
•
•
•
Describe the ‘reasonable man’
List the factors that affect the standard of care of the reasonable man
Explain relevant examples for each of the above factors
Introduction:
•
Once the claimant has established a duty of care he must then show that Defendants
has breached that duty
The standard of care is the ‘reasonable person’ test
An objective test that asks if D’s action ‘fall below those of the reasonable person’
•
•
Factors affecting the standard of care
1.
2.
3.
4.
Professionals are judged to the standard of the profession as a whole
Learners are judged at the standard of the competent, more experienced person
Children are judged in accordance to their own age
Risk factors need to be considered as follows:
a. Does the claimant have any characteristics that should have been considered?
b. Is the risk a big risk?
c. Have all the appropriate precautions been taken?
d. Was the risk known at the time of the accident?
e. Was there a public benefit to taking the risk?
Professionals are Judged to the standard of the profession.
The key question you should ask here is: Would other people in the same profession have done what
the defendant did?
Bolam v Friern Hospital Management Committee [1957] 2 All ER 118
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Facts: The claimant had electro-convulsive therapy in hospital to treat
depression. The doctor failed to provide the claimant with any muscle
relaxants or any physical restraint. The claimant suffered dislocation
of both hip joints with fractures of the pelvis on each side.
Principle – The standard of care for doctors is 'the standard of the
ordinary skilled man exercising and professing to have that special
skill'. The standard of a professional is judged by the standard of the
profession even if there is no agreement in the profession.
Chapter 23: Negligence
Part 2: Breach of Duty (Continued)
The principle for professionals is established by asking to question:
1. Does the conduct of D fall below the standard of the ordinary competent
professional?
2. Is there a substantial body of opinion within the profession that would support the
course taken by D?
Montgomery v Lanarkshire Health Board (2015)
Facts of the case: Nadine Montgomery, gave birth on 1
October 1999 and, as a result of complications during
delivery, her son was born with cerebral palsy. It would
have been better for the baby if the mother would have
had a Caesarean however this was risky to the mother
because she was diabetic. The doctor did not tell the
mother about the risk involved in giving birth naturally.
Montgomery sought damages against Dr McLellan who was
responsible for her care during pregnancy and labour
because he failed to inform her of the risks.
Held: Court held that doctor had a duty to obtain informed consent.
Learners are judged at the standard of the competent, more
experienced person
Nettleship v Weston [1971] – reasonable standard applies to students
Facts: The defendant was a learner driver and C was her
professional driving instructor. On their third lesson together (in a
car that did not have dual controls) the driver crashed into a lamp
post and injured her instructor.
Ratio – The driver was liable despite her inexperience. The
standard of care required of all motorists is the same: that of the
reasonably competent driver.
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Claimant won
Chapter 23: Negligence
Part 2: Breach of Duty (Continued)
Children are judged to a reasonable person of their age
Mullin v Richards (1998)
Two 15-year-old school girls were fighting with plastic rulers. A
ruler snapped, and a splinter went into one of the girls eyes
causing blindness. The girl brought an action against the other girl
for her negligent action.
Held: The girl was only expected to meet the standard of a
reasonable 15-year-old school girl not that of a reasonable man.
She was found not to be in breach of duty.
Risk factors need to be considered as follows:
1. Does the claimant have any characteristics that should have been
considered?
Paris v Stepney Borough Council (1951) 1 All ER 42
Facts: The claimant was a mechanic. His
employers knew that he was blind in
one eye. The employers did not provide
safety goggles because this was not a
legal requirement at the time. While
the claimant was using a hammer to
remove a bolt on a vehicle, a chip of
metal flew off and entered his good
eye, so injuring it that he became
totally blind.
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Principle – The defendants owed a higher standard of care to the claimant because they knew
there was an increased risk to the defendant.
Chapter 23: Negligence
Part 2: Breach of Duty (Continued)
2. Is the risk a big risk?
Bolton v Stone (1951)
Facts: miss Stone was injured when she was
struck by a cricket ball outside her home. There
was a fence that covered 17 feet above the
cricket pitch. A witness who lived close to pitch
said that five or six times during the last 30
years he had known balls hit his house or come
into the yard. Two members of the Club, of over
30 years' standing, agreed that the hit was
altogether exceptional.
Held: No breach of duty. The likelihood of harm
was low the defendant had taken all practical
precautions in the circumstances.
Haley v London Electricity Board [1965] AC 778
Facts: Workmen were digging a trench in a
pavement. They went off to lunch. They had
nothing to fence of the trench. The claimant,
a blind person, tripped and fell hitting his
head. As a result of the fall he became deaf.
It was known that this road was used by
blind people.
Held:
The defendant was in breach of duty. It was foreseeable that a blind person might walk down the
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street and they should be given appropriate protection.
Chapter 23: Negligence
Part 2: Breach of Duty (Continued)
1. Have all the appropriate precautions been taken?
Latimer v AEC Ltd (1953)
Facts: The claimant worked in the
defendant's factory and slipped up on the
factory floor. The factory had become
flooded due to adverse weather conditions.
The defendant's had put up warning signs
mopped up and placed sawdust in the most
used places to make it as safe as possible.
Held: There was no breach of duty. The
defendant only had to take reasonable
precautions to minimise the risk which they had done. There was no need to go to great expense to
eliminate any possible risk.
2. Was the risk known at the time of the accident?
Roe v Minister of Health [1954] 2 All ER 131 – Not liable if D don’t know
Facts: A spinal anaesthetic had become
contaminated through invisible cracks in the glass
vial, when it was used it paralysed two patients.
Principle – The cracks were not foreseeable given
the scientific knowledge of the time, although actual
foresight by D is generally irrelevant, a reasonable
person would not have taken precautions against a
risk of which reasonable people in that profession
were not aware.
D not liable
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Do you think the decision on this case is right?
Chapter 23: Negligence
3. Was there a public benefit to taking the risk?
If there is an emergency an greater risk can be taken and a lower standard can be accepted.
Watt v Hertfordshire (1954)
The claimant was a fireman. A woman had been involved in a
traffic accident and was trapped underneath a lorry. This was
200-300 yards away from the fire station. The fire services
were called to release the woman. They needed to transport a
heavy lorry jack to the scene of the accident. The jack could
not go on the fire engine and the normal vehicle for carrying
the jack was not available. The fire chief ordered the claimant
and other firemen to lift the jack on to the back of a truck.
There was no means for securing the jack on the truck and the firemen were instructed to hold it on
the short journey. In the event the truck braked and the jack fell onto the claimant's leg causing
severe injuries.
Held: There was no breach of duty. The emergency of the situation and utility of the defendant's
conduct in saving a life outweighed the need to take precautions.
Day v High Performance Sports
Facts:
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Verdict
Chapter 23: Negligence
Step 2: Has the duty been breached?
An objective test that asks if D’s action ‘fall below those of the reasonable person’ taking
the following rules into account.
1. Professionals are judged to the standard of the profession as a whole

If other people in the same profession would have done the same thing
there is no breach (Bolam v Friern)

However, people need to give informed consent (Montgomery v
Lanarkshire)
2. Learners are judged at the standard of the competent, more experienced person
(Nettleship v Weston)
3. Children are judged in to a reasonable person of their own age (Mullin v Richards)
4. You must evaluate the risk
a. Does the claimant have any characteristics that should have been
considered?
If the Claimant is more vulnerable the standard of care is higher (Paris v
Stepney Borough Council)
b. Is the risk a big risk?
i. If the risk is a small risk there is no liability (Bolton v Stone)
ii. If there is a higher risk the standard is also higher (Haley v London
Electricity)
c. Have all the appropriate precautions been taken?
D must take reasonable precautions to minimise the risk but not go to great
expense to eliminate any possible risk (Latimer v AEC Ltd).
d. Was the risk known at the time of the accident?
If a reasonable person, or a reasonable person in the profession, would not
have known the risks then there is no liability. If the profession does not
know then there is no liability (Roe v Minister of Health)
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e. Was there a public benefit to taking the risk?
If there is an emergency an greater risk can be taken and a lower standard
can be accepted
Watt v Hertfordshire (1954): the utility of D’s action to save life outweighed
the need to take precautions.
Day v High Performance Sports (2003): This principle applies even if in
hindsight the course of action taken was the wrong one.
Chapter 23: Negligence
Part 3: Damage
Learning objectives:
•
Distinguish between causation in fact and remoteness of damage
•
Explain factual causation in negligence
•
Explain the test for remoteness of damage
Introduction
•
C must prove that the breach by D and the loss suffered are closely linked
•
Referred to as Damage (do not mistake with damages)
Three part test
Factual causation
Causation (did D or someone else cause the damage?)
• But for test
• Does not have to be the main cause as long as it was a cause.
Legal causation:
• Intervening acts
Remoteness of damage
• The damage must not be too remote
• Liable if the type of injury was foreseeable
• Thin skull rule
Part 1: Causation
Just like in criminal law you must prove factual and legal causation.
Factual Causation - But For Test
The breach of duty must be the factual cause of the damage
Barnett v Chelsea and Kensington Hospital Management Committee [1969]
Facts: A man went to a hospital complaining of
stomach pains and vomiting. The doctor refused to
examine him and sent him home untreated, and he died
of arsenic poisoning five hours later.
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Principle – His family sued the hospital but failed. The
medical evidence was that he would probably have died
even if the proper treatment had been given promptly,
so the hospital's negligence was not the cause of his
death. This is an example where there was no
causation in fact as the hospital could not have done anything to save Barnett’s life. The cause of
death was the original poisoning not the hospital’s failure to examine him properly.
In other words hospital had a duty of care, had breached the duty it owed but had not caused
the death (damage) of the deceased
Chapter 23: Negligence
Part 3: Damage (Continued)
It does not have to be only cause but a cause.
Fairchild v Glenhaven Funeral Services Ltd [2002] UKHL 22
Facts: number of workers got cancer after working in an
environment where they were exposed to asbestos. The
Court of Appeal said the employers (defendants) was not
responsible because the claimants could not prove their
cancer started when they inhaled the asbestos at work.
Principle – The House of Lords reversed this decision. In
cases where the actual cause of injury is undoubted, but
it is scientifically impossible to show which of several
negligent employers was actually responsible, it is
enough for the claimant to show that an employer's negligence contributed to the outcome: that
employer would then be liable in full for the claimant's injuries even though he might claim a
contribution from the others. The normal rules on causation in fact can be modified on policy grounds
where there are special circumstances. C won
Legal causation
•
•
An intervening act may break the chain of causation
If the novus actus breaks the chain then D may not be liable
– Third party
– An act of the claimant
– An act of nature
The courts will consider the following questions:
• Was the resulting damage a foreseeable consequence of the original act?
• Cases appear to be decided on the production of a just result
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Smith v Littlewoods [1987] 1 All ER 710, HL
Facts: DD purchased a cinema with a view to
demolishing it and replacing it with a supermarket.
They closed the cinema and employed contractors
to make site investigations and do some
preliminary work on foundations, but then left the
cinema empty and unattended but locked. Vandals
started a fire in the cinema which seriously
damaged two adjoining properties, one of which
had to be demolished.
Principle – The court decided the events which
occurred were not reasonably foreseeable by the defendants and therefore they owed no duty to
the plaintiffs, the vandalism being a novus actus interveniens.
C lost
Chapter 23: Negligence
Part 3: Damage (Continued)
Remoteness of damage
The damage must not be too remote from the negligence of the defendant.
The Wagon Mound (1961)
Facts: Oil was spilled from a ship, and a fire was caused
when sparks from work being done on the wharf ignited
the oil. The fire caused extensive damage to the wharf and
dockside buildings, and the owners of the dockyard sued
the shipowners.
Principle – The risk of fire could not have been foreseen,
but only a risk of pollution ‐ The damage in this case was
too remote from the original negligent act of spilling the
oil.
The type of injury was foreseeable
Hughes v Lord Advocate
Facts: On a winter evening some Post Office workmen took a break, leaving
an manhole covered by a small tent with a paraffin lamp at each corner. Two
boys aged 8 and 10 took one of these lamps and went into the tent; one of
them tripped, and the lamp fell into the manhole where it caused an
explosion in which the boy was injured.
Principle - the Post Office were liable: the accident was caused by a known
source of danger and that made it forseeable even though the way in which
it happened was unexpected.
C won
Thin skull rule
Smith v Leech Brain (1962) 3 All ER 1159
Fact: A workman was slightly splashed by molten metal through his employers' negligence and
suffered a burn on his face. The burn aggravated a pre‐existing cancerous condition and the man
died
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Principle – "injury to the person" was regarded as a single kind of damage and some minor injury at
least was foreseeable and even though the ultimate consequence was not they had to take their
victim as the found him.
C won
Chapter 23: Negligence
Part 3: Damage (Continued)
Steps for Proving Damage
Factual causation
did D or someone else cause the damage? – Would it have happened but for D’s action
• But for test (Barnett v Chelsea) - he would have died even if the proper treatment had
been given
•
Does not have to be the main cause as long as it was a cause.
Fairchild v Glenhaven: it is enough for the claimant to show that D’s negligence
contributed to the outcome AND normal rules on causation in fact can be modified on
policy grounds
Legal causation:
• Intervening acts
Smith v Littlewoods: if third party actions are not reasonably foreseeable they will break
the chain of causation.
Remoteness of damage
•
•
The damage must not be too remote (The Wagon Mound)
Liable if the type of injury was foreseeable even if the actual way it happened was not
(Hughes v Lord Advocate)
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Thin skull rule
 D must take the claimant as they find it (Smith v Leech Brain)
Chapter 23: Negligence
Exam Practice: Problem question
Ahmed is mowing his lawn with a powerful petrol lawnmower. The mower has a sticker on it stating
that goggles must be worn by anyone who gets close to the mower because it can throw up small
stones. Ahmed’s neighbour, Bilal, comes out of his house and leans on the fence to chat to Ahmed.
Ahmed does not warn Bilal that he should wear goggles as he knows Bilal has a similar mower and
assumes that he will be aware of the necessary precautions. Ahmed decides to show off by pushing
the mower much too fast. The mower hits a stone which is thrown up and hits Bilal in the face
causing him serious injuries.
Advise whether Bilal will be successful in a claim of negligence against Ahmed (25 Marks)
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Submit the answer to this question on the VLE