NEGLIGENCE
Introduction
A claim under negligence is brought up when an individual or a group owe a duty
of care to another individual or group and they disregard or breach that duty,
resulting in damage to the other party. From this the three elements under the tort
of negligence can be established as:
● The defendant must owe the claimant a duty of care
● The defendant must breach the duty of care
● That failure or breach must cause damage to the claimant
When it comes to damage, the tort of negligence mainly protects parties against
physical injury, damage to property, and economic loss. Although, in practice,the
rules of tort may differ depending on the type of harm that is suffered, but all of
them are protected by negligence
The duty of care
Negligence is essentially concerned with protecting people from harm caused by
the careless behaviour of others, but the law cannot practically protect every
individual from suffering harm. So in an attempt to narrow it down, the courts have
established that in order to hold the defendant negligent, they must owe a duty of
care to the claimant.
1. The neighbour principle
Neighbours are held to be people who are directly affected by an individual’s
actions and so a duty of care is owed to neighbours under the tort of
negligence. This principle was established by Lord Atkin in the case of
DONOGHUE v. STEVENSON, where the defendant went to a restaurant
with a friend and ordered some ginger beer. They drank some of it and then
the defendant poured out the rest. When he emptied the bottle, a
decomposed snail fell out of it. Mrs. Donoghue fell ill and sued the
manufacturer. The House of Lords agreed that the manufacturer of goods
and services owed a duty of care to the end consumers of their products,
and Lord Atkin stated, “You must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your
neighbour”. This was termed as ‘the neighbour principle’. The test of
foreseeability here is objective as the courts ask not what the defendant
actually foresaw, but what a reasonable person could be expected to have
foreseen.
2. The three-part test
This rule was established in the case of CAPARO INDUSTRIES plc v.
DICKMAN, where the courts stated that a duty of care is owed when the
following conditions are met:
● The damage caused is reasonably foreseeable
● There is a relationship of proximity between the defendant and the
claimant
● It is just and reasonable to impose a duty
This principle is usually used to establish duty of care in cases
concerning physical injury or damage to property, or those which do not fall
into any of the special categories.
● Reasonable foreseeability
This essentially is a test of whether the defendant ought to have foreseen
the risk of damage to the claimant as a result of their actions
➔ Langley v. Dray
The claimant was a police officer, who was chasing the defendant
while he was driving a stolen car. The car crashed and injured the
claimant. It was held that the defendant had a duty to not cause such
risks as he was aware that the claimant was pursuing him and ought
to have known that increasing his speed would risk injury to the
claimant. He was held in breach of duty.
➔ Haley v. London Electricity Board
The claimant, who was blind, was walking on a pavement when he
tripped over a hammer placed there by the defendant and got injured
to such an extent that he almost became totally deaf. It was held that
while working on the road, the defendant’s duty of care extended to
people walking on the side pavement, and this included blind
pedestrians.
● Proximity
Proximity is based on the relationship between the defendant and the
claimant. In order for the defendant to owe a duty of care, the parties must
be in close proximity to each other. Proximity can simply be established only
if the defendant and claimant know each other. There needs to be some
kind of relationship between the parties.
➔ Muirhead v. Industrial Tank Specialties
Proximity does not necessarily mean that the defendant and claimant
know each other, but have such a relationship that one person could
have reasonably foreseen that their actions could cause any kind of
harm or damage to the other party.
➔ Sutradhar v. Natural Environment Research Council
The claimant was a resident of Bangladesh, who fell ill after drinking
contaminated water from the local supply. He argued that the
defendant had a duty to make this information public to avoid
misleading people into a false sense of security. There was held to be
no breach due to lack of adequate proximity
● Justice and Reasonableness
This is considered once foreseeability and proximity have been established.
To establish the element of fairness, courts consider policy issues to ensure
that the defendant being held liable for the said breach of duty is just, and
not merely an establishment of other elements of the duty of care.
➔ MacFarlane v. Tayside Health Board
The claimant had become pregnant after her partner’s vasectomy
failed, and claimed for compensation to bring up the child. The court
rejected her claim, stating that it would not be just and reasonable to
award compensation for the birth of a healthy child.
➔ Mitchell v. Glasgow City Council
The claimants were the wife and daughter of a man who was killed by
their neighbours. In the past, the neighbour had abused the claimants
and the council had threatened to evict him if he did not cease to do
so. After this he attacked his neighbour. The claimants argued that the
council knew about this and had a duty to warn them about the
meeting. However, the courts held that it was not just and reasonable
to impose such a duty on the defendants as they had already taken
steps to resolve the problem.
DUTIES OF CARE
● Duties of care: Pure Economic Loss
This is a term used to cover losses that are purely economic, meaning that
the claimant has suffered a financial detriment due to reasons which are not
directly resulting from personal injury or damage to property
The case of SPARTAN STEEL v. MARTIN illustrates the differences
between types of losses, including pure economic loss. In this case, the
defendant had negligently cut a power cable, causing a power cut that
lasted 14 hours. Without the electricity to heat the claimants’ furnace, the
metal in the furnace solidified and the claimants had to shut the factory
down temporarily. They claimed damages for three types of losses:
1. Damage to metal that was in the furnace and got solidified. (physical
damage to property).
2. Loss of profit that could have been made from the sale of that
metal.(economic loss arising from physical damage).
3. Loss of profit from the sale of metal which could have been processed
during the time the factory was shut down.(pure economic loss).
Although, the courts only awarded damages for the first two claims.
There seem to be two major reasons for the courts’ reluctance in
compensating for pure economic loss.
The first is that traditionally, contract law was the means by which damages
for pure economic loss were awarded, and the courts were reluctant to
disturb this.
Secondly, there is the issue of ‘flood gates’, meaning that direct damage of a
negligent act only results in loss to a limited number of people, whereas the
implications of pure economic loss can extend to a vast majority of the
public and hence may be practically incalculable.
As a result, claims for pure economic loss are only allowed in some
situations, but the law surrounding them is still unclear.
Origins of the claim for pure economic loss
The initial position of the law concerning pure economic loss was set in the
case of CANDLER v. CRANE, CHRISTMASTIME AND CO. , where the
COA held that the accountant owed no duty for economic loss to the third
party, as their responsibility was only contractual.
This position changed in the case of HEDLEY BYRNE V. HELLER Here, the
claimants were advertising agencies and were asked to buy amounts of
advertising space on a firm’s behalf. To ensure creditworthiness, the bank
was supposed to keep a check on them. The National Province bank
contacted Heller twice and each time he gave favourable references, but
included a disclaimer that the information was being supplied without
responsibility on the bank’s part. The second enquiry asked whether the firm
was trustworthy, and Heller responded that it was respectably considered
good for ordinary business arrangements. Hedley Byrne relied on this
advice and entered into a contract with a firm called Easipower. The firm
later went into liquidation and asked Hedley Byrne to pay the 17000 pounds,
who claimed this amount from Heller.
The HOL held that no duty of care was accepted by Heller and none arose
so the claim failed
This was followed by the case of JUNIOR BOOKS v. VEITCHI, where it was
possible to make out negligence on the part of the builders due to the
defective floor despite the damage being solely an economic loss
However, the HOL stated that there could be a duty of care to give careful
advice, and breach of that duty could give rise to negligence (negligent
misstatement). They held that the fact that the damage was solely an
economic loss did not prevent this.
The HOL laid down a number of requirements under the Hedley byrne
principle:
1. A special relationship between the parties
2. A voluntary assumption of responsibility by the party giving the advice
3. A reliance on that advice by the other party
4. Reasonable reliance
The ‘special relationship’
This was described by Lord Reid in the hedley byrne case as arising where
‘it is plain that the party seeking information or advice was trusting the other
to exercise such a degree of care as the circumstances required, where it
was reasonable for him to do that, and where the other gave the information
or advice when he knew or ought to have known that the enquirer was
relying on him’
➔ ESSO PETROLEUM CO. v. MARDON
The claimant had leased a petrol station after gaining from Esso’s that
it would sell almost 200000 gallons of petrol a year. However, he was
only able to sell 78000 gallons, and sued Esso. The COA held that in
making the prediction, the petrol company had undertaken a
responsibility to Mardon, and so owed a duty of care when Mardon
relied on their skill in the petrol market, and so the claim was allowed.
➔ LENNON v. COMMISSIONER OF THE METROPOLIS
The claimant was changing jobs in the police force to go work in
Ireland. He was previously receiving a housing allowance and wanted
to know whether this would remain once he switched jobs. They told
him that it would, but later refused to pay the allowance. The COA held
that although the person telling him this was not a professional in the
field, she had a managerial job and had led the claimant into believing
that he could rely on her promise, instead of telling him that the
enquiry was outside her area of influence, and so the claim succeeded
Voluntary assumption of responsibility
According to Lord Reid, a person who is asked for advice can respond in
three ways; by not giving advice, by giving advice and warning that it may
not be accurate and should not be relied upon, or by giving advice without
any such disclaimer. Generally, a person responding in a positive way
without any disclaimer is said to have voluntarily assumed responsibility for
the advice and its implications.
➔ DEAN v. ALLIN & WATTS
The defendant was a solicitor who had acted for some clients
borrowing money but had also assumed responsibility for the person
lending the money. He was approached by two borrowers and agreed
to lend them 20000 pounds against some property to be put up as
security. The solicitor advised that security could be provided as a
deposit of deeds, although it did not give him any right over the
property. Later, the borrowers became bankrupt and a mistake was
discovered. He sued the solicitor and the COA held that he was not
taking independent advice. The defendant knew that he was being
relied upon to ensure effective security of the loan, and so by
continuing to act, he was assuming responsibility for the advice.
➔ CALVERT v. WILLIAM HILL CREDIT LTD.
The claimant was a gambler who had been making a lot of money but
was now in loss. Realising this, he asked the bookmaker to close his
gambling account. The bookmaker assured him that he would do so
but later failed, and bets were made from the claimant’s account. The
claimant argued that the bookmaker owed a duty of care in two ways.
First was due to a social responsibility and secondly, because the
bookmaker had agreed to include the self exclusion agreement and by
doing so, had taken up a responsibility for carrying out the
arrangement properly. The first claim failed, on the grounds that the
bookmaker could not possibly identify all problem gamblers. However,
the second claim succeeded, as the bookmaker had, in fact, identified
the claimant as a problem gambler.
➔ GOODWILL v. BRITISH PREGNANCY ADVISORY SERVICE
The claimant had become pregnant by her boyfriend after he had a
vasectomy and the doctors advised him that it was successful. She
sued for negligence, but the COA held that in order to claim
successfully for reliance on advice given by the defendants, the
claimant had to show that the defendants knew that the advice being
given was to be relied upon by the claimant.
Reliance by the claimant / reasonableness
The claimant must not only prove that they relied on the defendant, but that
it was reasonable to do so, and the courts have held that this would not be
the case where the claimant relies on the information or advice for one
purpose when it was given for some other purpose.
➔ REEMAN v. DEPARTMENT OF TRANSPORT
Reeman was the owner of a fishing boat that required a certificate of
seaworthiness by the department of transport to be eligible for usage
at sea. The boat was covered by the certificate and it was later found
out that the surveyor was negligent and the certificate should not have
been issued in the first place. As a result, it could not now be renewed,
making the boat worthless. Reeman sued for economic loss, but the
COA rejected his claim, stating that information provided for one
purpose would not impose duty on the defendant for some other
reason.
However, the courts are willing to look into cases where advice given for one
purpose can also be relied upon for some other purpose.
➔ LAW SOCIETY v. KPMG
The defendants were accountants to a firm of solicitors, and had been
asked to prepare the firm’s financial accounts by the law society. The
accountants did so but failed to report on one of the senior solicitors
who had been defrauding clientele. The accountants argued that they
only owed a duty to the solicitors’ firm, but the law society held that
they also owed a duty to them by virtue of the law society’s reliance on
their reports. The COA upheld this claim.
Recovery without reliance: The ‘wills’ case
➔ WHITE v. JONES
Two daughters had a quarrel with their father and he cut them off of
his will. Some time later, they reconciled and the father asked his
solicitor to bequeath 9000 pounds to each of the daughters. The
solicitor was reminded again after a month to do so, but he failed. As a
result, when the father died, the daughters were unable to inherit the
money and sued the solicitor. The HOL allowed the claim, even though
the loss was purely economic and the result of negligence rather than
negligent misstatement
➔ GORHAM v. BRITISH TELECOMMUNICATIONS plc.
The COA held that the position of intended beneficiaries of an
insurance policy was comparable to that of the intended beneficiaries
to a will and that the advisors had therefore undertaken a responsibility
towards the family
Problems with pure economic loss
★ Too many restrictions, or too few?.
★ Difficult to justify in common sense terms.
★ Claim is not made for a loss, but for a failure to make a gain.
★ Unclear - over complex judgements.
★ No duty owed for advice given outside of a professional setting.
● Duties of care: Nervous shock / Psychiatric injury
Psychiatric injury has been labelled by courts as ‘nervous shock’, which
means that the claimant can justify damage due to breach of duty if they
have been shocked, grief stricken, or upset. However, this is subject to a
variety of restrictions. So, the claimant must suffer an actual psychiatric
injury, such as a clinical illness, as a result of the breach, or actual physical
damage as a result of the shock, e.g. a miscarriage due to a shocking
accident (Bourhill v. Young)
Then, claimants who have suffered nervous shock must also prove that they
are owed a duty of care by the defendant. This would depend on their
relationship or proximity, for that matter, to the event that caused the shock.
This relationship was defined by the HOL in the case of WHITE AND
OTHERS v. CHIEF CONSTABLE OF YORKSHIRE, where the court
identified three types of people that could be related to a shocking incident.
1. Those who are physically injured in the event which the defendant has
caused, in addition to suffering a psychiatric injury. These are the
primary victims
2. Those who are put in danger of physical harm, but only suffer
psychiatric injury. These are also the primary victims
3. Those who are put in danger of physical harm, but suffer psychiatric
injury by witnessing physical harm to other people related to the event.
Primary victims:
An accident victim who suffers physical injury due to negligence of others can
claim damages not only for the physical damage that has been caused. But also
for psychiatric illness that has been the result of the incident, or the physical harm
caused. So, anyone who is put in danger of physical harm by the defendant’s
negligence can claim for psychiatric injury, even if there is no physical damage.
➔ DULIEU v. WHITE & SONS
The claimant was serving in a pub when one of the defendant’s employees
drove into the pub in his van. The claimant thought that the van would harm
her and the shock caused her to have a miscarriage. The defendants were
held liable for physical damage as well as nervous shock as they could have
foreseen that such a stunt could shock anyone in the pub.
➔ SIMMONS v. BRITISH STEEL plc
The claimant had been injured at his workplace, and as a result of the shock
and anger, he developed a skin condition, due to which he was unable to
work, and suffered depression as a result. The employers were held liable
for the original injury, the skin condition, as well as the depressive illness.
They had exposed the claimant to a very real and foreseeable risk of
physical injury, and were therefore liable for all illnesses that resulted from
that injury.
➔ ROTHWELL v. CHEMICAL AND INSULATING CO, Ltd.
The claimants were a group of workers who had been exposed to asbestos
at work. Asbestos, when enters the lungs, can lead to a range of fatal
diseases. When they brought the claim, none of the claimants had these
diseases, but they did have pleural plaques, which are a sign of asbestos in
the lungs. Naturally, this could be a cause of anxiety, which could not be the
basis for a claim as it is not a recognized mental illness, however, one of the
claimants developed clinical depression from the anxiety, which is a
recognized psychiatric illness. Still, the HOL ruled that there was no duty of
care and the question should only be decided on the usual principles
applicable to psychiatric illness at work.
Secondary victims:
Secondary victims are people who have been negligently exposed to the danger
or risk of danger, but instead suffer a nervous shock or psychiatric illness while
witnessing physical damage to someone else. Secondary victims can claim fro
psychiatric injury, but only in limited circumstances.
➔ McLOUGHLIN v. O’BRIAN
The claimant’s husband and children were involved in a car accident caused
by the defendant’s negligence. One of her daughters died in the accident.
The claimant had not been present at the scene of the accident, but was at
a hospital and was shocked when she saw her family in such a condition. As
a result, she suffered psychiatric injury, and the HOL allowed her claim.
Although, up until now, only witnesses present at the scene could claim for
psychiatric illness, Lord Bridge suggested that the claimant could recover
damages because her injury was reasonably foreseeable. However, Lord
Wilberforce held that reasonable foreseeability was not enough to create duty of
care for secondary victims, as there were a number of other factors that needed to
be satisfied.
These factors have been specified in the case of Alcock v. Chief Constable of
Yorkshire
➔ ALCOCK v. CHIEF CONSTABLE OF YORKSHIRE
The case arose from the accident caused in the Hillsborough football
stadium in 1989. The play had to be stopped because people were dying
and getting injured due to overcrowding. The South Yorkshire police had
been responsible for regulating the area and so the accident was widely
believed to be the result of negligence on their part, by allowing too many
people in the ground. The claims for primary victims were duly settled by the
police. However, as for the friends and relatives of those injured or dead, it
was argued that whether they were owed a duty would depend on the
reasonable foreseeability of the damage as suggested in McLoughlin.
The HOL held that, while it was reasonable to foresee that such a damage
to a person could cause a psychiatric injury to those close to the injured, or
dead, it was not common law policy to compensate third parties affected by
an incident. So the court held that, once reasonable foreseeability was
established, a series of further tests had to be carried out to establish duty of
care:
1. The nature and cause of psychiatric injury.
2. The class of person into which the claimant falls, depending on their
relationship to the primary victims.
3. The claimant’s proximity to the shocking incident, in terms of both time
and place
Nature and cause of psychiatric injury: like primary victims, secondary victims
must also prove that the damage they have suffered amounts to a recognized
psychiatric illness, and not mere stress or dislike. In addition they must also prove
that the psychiatric illness has been caused due to a sudden shock. So, a series
of events over a prolonged period of time would not be covered by this law.
➔ SION v. HAMPSTEAD HEALTH AUTHORITY
The claimant had developed a stress related illness due to watching his son
slowly die as a result of a disease caused by the negligence of the
defendants. The courts rejected his claim as his psychiatric illness was not
the result of a sudden shock, but was a gradual development.
➔ NORTH GLAMORGAN NHS TRUST v. WALTERS
The claimant was the mother of a baby boy who had died after receiving
negligent mistreatment on the authority of the defendants. The boy was also
ill, and unknown to the mother, his illness was misdiagnosed. She woke up
to find him coughing up blood. Later that day, he was transferred to another
hospital and suffered severe brain damage. As a result of this, the mother
suffered severe psychiatric illnesses. The hospital argued that they could not
be liable as the illnesses were not the result of a nervous shock. However,
the COA allowed the claim, stating that such events were horrifying on their
own and had their own impact.
The class of the person: the secondary victims have to prove that they are
somehow related to the defendant, or the incident for that matter, so that it was
reasonable for them to be shocked and develop a psychiatric illness. The court
has identified five categories of such people:
1. Relatives and friends (spouse, children, parents or close friends)
2. Rescuers (Chadwick v. British Railways Board)
3. Employees (includes police officers even though they are not hired by the
chief constable) (French and others v. Chief Constable of Sussex)
4. Unwitting agents (Dolley v. Cammell Laird)
5. Other bystanders (unlikely to claim successfully)
Proximity: This is concerned with the position of the claimant with respect to the
incident, considering both the time and place where the event has occurred. It was
established that the claimant needs to be sufficiently proximate to the accident or
its immediate aftermath. So, watching or hearing about an incident on the
television or radio was not enough to establish proximity.
➔ TAN v. EAST LONDON AND CITY HEALTH AUTHORITY
The claimant had been informed through telephone by the hospital staff that
his baby had died in his mother’s womb. He went on to the hospital and
watched the birth of the stillborn baby. Later, he sued the hospital for the
psychiatric injury caused by watching the birth. However, his claim was
rejected by the court, on the basis that the psychiatric injury had been
caused by shock received on hearing about the death on telephone rather
than watching the birth of the child.
Psychiatric injury not caused by sudden accidents:
This is mainly the situation with employees, who are often exposed to long hours
of stressful work, causing psychiatric harm. This has been treated differently by
the courts, notably by not requiring the illness to be triggered by a sudden shock.
➔ W v. ESSEX COUNTY COUNCIL
The defendant negligently placed an orphan, who had a history of abusing
children, in a family with four children. He then abused those children, and
both the parents suffered psychiatric injury as a result. Here, there was no
sudden shock, and so the parents had difficulty making their claim.
Sometimes, courts may also compensate under the statute for emotional distress.
Problems with the law on psychiatric damage
1. The position of rescuers
2. The ‘closeness of relationship’ rules
3. Proximity requirements
4. ‘Sudden shock’ requirements
5. Too restrictive / in need for reform
● Duties of care: Omissions
Negligence is a tort of strict liability, so in order to hold a person negligent, it
must be proven that they owed a duty of care and had failed to fulfil
it.generally, these duties are imposed by the law to prevent causing damage
to others. They are not duties actively to help others, and if there is no duty
of care, there will be no liability. However, there are some situations in which
the courts have recognized a positive duty to act, arising from the
circumstances in which parties find themselves. Although, these categories
are loose and at times, overlap. Following are some major such categories.
Control exercised by the defendants
Where the defendants have a high degree of control over the claimant, they owe a
positive duty of care to look after the claimant, which goes beyond just making
sure that the defendants themselves do not cause any harm. This was seen in the
case of VELLINO v. CHIEF CONSTABLE, Vellino was a career criminal and was
well known to the local police. They went to his house to arrest him, and in an
attempt to escape, he jumped from the second floor window. Due to the fall, he
seriously injured himself, and ended up with brain damage and paralysis,
depending on others for his needs. He sued the police, under the duty to prevent
him from escaping, arguing that it was foreseeable that he would try to escape
and get injured. The Court of Appeal rejected the argument, stating that this would
also mean that the police had to hold prisoners in the lightest possible grip, just in
case they wrench a shoulder in trying to break free. In any case, it was held that
Vellino was not actually under the control of the police as he was trying to escape
the police, which is a crime and so the defence of illegality applied.
Assumption of responsibility
A positive duty of care will be implied where it can be established that the
defendant had assumed responsibility for the claimant’s well-being in some way.
Such a duty may exist where a contract implying assumption of such responsibility
exists, or where it is part of the defendant’s job. This was seen in the case of
COSTELLO v. CHIEF CONSTABLE OF NORTHUMBRIA POLICE, where the
Court of Appeal held that by being a police officer, the defendant had assumed
responsibility to help fellow officers, and so where a police member’s failure to act
would result in a fellow officer being exposed to unnecessary risk, there is a
positive duty to act.
Creation of risk
Where the defendant actually creates a dangerous situation, even if this risk is
created through no fault on the defendant’s part, the courts may impose a positive
duty to deal with the danger. In CAPITAL AND COUNTIES plc v. HAMPSHIRE
COUNTY COUNCIL, the question arose of whether the fire brigade had a duty of
care towards people whose property was on fire. The court concluded that in
general, they did not, but said that where a fire brigade had actually done
something which either created a danger or made existing danger worse, they
then had a positive duty to take reasonable steps to deal with that danger.
● Duties of care: liability for the acts of third parties
Tort law is designed to impose liability on those who have caused damage
and so duty of care is not usually owed for the acts of a third party, even if
the defendant has or could have reasonably foreseen the damage. This was
seen in the case of P PERL (Exporters) v. CAMDEN LONDON BOROUGH
COUNCIL, the defendants owned two adjoining buildings, one of which was
rented by the claimant. The defendants had not locked the other building
and some burglars got in through to the claimant’s premises and robbed it.
The court held that the defendants could not be liable for negligence, even
though they could have foreseen a burglary with an open building, as they
could not be held responsible for the actions of others.
Regardless, the courts identified certain circumstances where the defendant
may be held liable for the action of a third party
Defendant-claimant relationship of proximity
Relationship of proximity essentially refers to circumstances between the
defendant and the claimant that make it reasonable for them to owe a duty
of care. The relationship can often stem from the existence of a contract
between the parties (STANSBIE v. TROMAN). It may also arise from things
parties have said or done. For example, in SWINNEY v. CHIEF
CONSTABLE OF NORTHUMBRIA POLICE, where the police were held to
owe a duty of care to a particular claimant because she had supplied them
with information regarding a criminal and had stressed for it to be
confidential, and it was clear that if they did not do so, there was a serious
risk of the criminal deciding to take revenge and harming the claimant.
Defendant-third-party relationship of proximity
This arises where the defendant has a responsibility to exercise some
degree of control over the third party. However, this is not enough to create a
duty of care as in addition, the claimant will also have to be someone who
would be at a particular risk of danger if the defendants were negligent in
controlling the third party over and above the general risk to the public.
In HOME OFFICE v. DORSET YACHT Co. , The prison officers were in
charge of controlling a youth custody centre, a Borstal, situated on an island.
Due to their negligence, some boys escaped and took boats belonging to
the claimant to try to get off the island. The House of Lords held that the
home office was liable for the acts of the boys because they had control over
them, but they would not be responsible for any damage caused by the
boys, other than that at particular risk to the owners of the boats, because it
was obvious that the boys would try to escape by stealing the boats.
Creating a risk of danger
A defendant who negligently creates a danger would be liable if a third
party’s actions cause that danger to impact or harm the claimant. Although
there must be a creation of a special risk, and so merely creating a situation
that will cause the third party to harm the claimant will not be adequate.
In TOPP v. LONDON COUNTRY BUS, where a bus was left unattended by
one of the defendant’s employees, with the key still in the ignition.
Somebody took the bus, and there was evidence of erratic and careless
driving throughout town without headlights. However, the Court of Appeal
held that the defendant leaving a bus as he did would not amount to creating
any special risk that could give rise to duty of care.
Risk created on the defendant’s property
Where a defendant knows, or has the means of knowing that a third party
has created a risk on the defendant’s property, the defendant owes a duty of
care to take reasonable steps to prevent danger to others.
In SMITH v. LITTLEWOODS ORGANIZATION, the defendants owned a
disused cinema. While it sat empty, some vandals got into the cinema and
set it on fire, which then spread to the neighbouring areas. The House of
Lords held that an occupier of a land could owe a duty to prevent risks
created on the land by third parties, although the littlewoods were not held
negligent as they were not aware of the vandals and the precautions they
had taken were reasonable.
● Duties of care: special groups
Certain occupational and other groups have become subject to particular
rules concerning negligence claims.
The police:
Negligence cases that involve the police generally fall into two categories;
operational matters, which basically means the way in which police carry out their
work, and matters involving policy issues, such as allocation of resources, or the
priority given to different types of work.
Where a case involves purely operational matters police officers are liable in the
same way as any other individual. However, issues arise when a claim of
negligence is put up against the police for policy reasons.The case of RIGBY v.
CHIEF CONSTABLE OF NORTHAMPTONSHIRE, is a useful guide for distinction
between operational matters and policy reasons. Here, a building owner sued the
police for fire damage to his property, after a police officer used CS gas, which is
inflammable to try to eject a dangerous psychopath with a gun from the building.
The court held that the police could not be held liable for using CS gas, even
though an non-inflammable option was available, because that was a policy
decision, however, they could be held liable for negligence in failing to bring fire
fighting equipment with them, which was an operational matter.
In the case of BROOKS v. COMMISSIONER OF POLICE FOR THE
METROPOLIS, Brooks had suffered PTSD after watching his friend get murdered
in a racist attack. However, he brought a claim against the police, arguing that the
situation had been aggravated by how the police had treated him afterwards. The
basis of his claim was that the police owed him a duty of care to:
1. Take reasonable steps to work out whether he was a victim, and if he was,
to treat him appropriately,
2. Take reasonable steps to give him appropriate support and protection for a
witness to a serious crime,
3. Give reasonable weight to his account of what happened and act
accordingly.
The House of Lords was unanimous in deciding that the police owed no such duty
of care.
However, in SWINNEY v. CHIEF CONSTABLE OF NORTHUMBRIA POLICE, the
claimant was a pub lady who had given information regarding a hit and run
criminal who had killed a police officer. She told the police to remain confidential,
but later received threats of violence due to the police’s negligence. As a result,
she suffered severe psychiatric illness and was unable to return to work. She tried
to sue the police for negligence, but the police argued that they owed no duty of
care as there was no relationship of proximity, or policy reasons. The Court of
Appeal disagreed, stating that it was clear that the claimant was in particular
danger, and in recognising the danger and agreeing to the need of confidentiality,
the police had taken up a responsibility. As far as the policy reasons were
concerned, the Court of Appeal held that such arguments were indeed relevant,
but in this case favoured the claimant, so the police did owe a duty of care, but
had not breached it.
The recent case of SMITH v. CHIEF CONSTABLE OF SUSSEX, now seems to
suggest that as far as ordinary members of the public were concerned, cases will
have to be very exceptional before the police can be held liable for failing to
protect an individual.
Fire brigades:
Liability of fire brigades in relation to negligence has been illustrated in three
different cases, with different facts. In CAPITAL AND COUNTRIES plc v.
HAMPSHIRE, the damage was said to be the result of the fire brigade’s
negligence, because they had turned off the sprinkler. In JOHN MUNROE v.
LONDON FIRE, The claimant’s building was set alight by smouldering debris from
a fire in the nearby building, the officers had been negligent to check the
claimant’s building when they found the debris. In CHURCH OF JESUS CHRIST
v. WEST YORKSHIRE, the fire brigade was unable to act because of the
insufficiency of water, and the case arose from the fire brigade’s failure to inspect
the hydrants.
The Court of Appeal considered whether the fire services owed a duty of care to
the member of the public who had called upon them to put out the fire, or to take
reasonable care to do so. The court concluded that no such duty existed.
Ambulance services:
➔ KENT v. GRIFFITHS AND OTHERS, the case concerned the London
ambulance service’s failure to respond promptly to a call from the claimant’s
doctor. As a result, the claimant stopped breathing and lost her baby. The
ambulance service argued that they did not owe a duty of care, but the court
disagreed, stating that the nature of the services provided by ambulance
was quite different from the fire brigade or the police, and so a duty of care
was owed
The armed forces:
➔ MULCAHY v. MINISTRY OF DEFENCE
The Court of Appeal considered whether a member of the armed forces,
injured by the negligent behaviour of a colleague during battle could sue for
injuries. It was held that there was no duty of care between fellow soldiers
engaged in battle conditions.
However, the court has made it clear that this ‘combat immunity’ will only apply in
situations where the soldiers are actually under the threat of an attack.
➔ BICI v. MINISTRY OF DEFENCE
The claimants were two Kosovan Albanians who were shot by British
soldiers during peacekeeping operations in Kosovo. The court held that the
soldiers were negligent in shooting the men when they were not threatened
by them, and had no reason to believe so. The Ministry of Defence argued
that the soldiers were covered by combat immunity, but the court held that
this was an incident of street disorder and not a combat situation.
Local authorities and public bodies:
Local authorities and other public bodies pose special problems when it comes to
negligent actions, because there maybe cases where reasonable foreseeability
and proximity have been established, but it may not be just and reasonable to
impose a duty, mainly because then the damages would have to be paid through
taxpayers, and the danger of employees being distracted from their main task and
possibly changing their work practices to avoid being sued.
In STOVIN v. WISE, the claimant had been injured when the motorbike he was
riding was hit by a car driven by the defendant. The defendant argued that the
accident was partly due to the fault of the local authority, because he had been
unable to see the motorbike due to an overhanging bank of earth, and the
authority had a statutory duty to remove such obstructions. The court upheld his
claim.
Restrictions on liability
The court considered the view that local authorities should also be protected from
unnecessary negligence claims in X v. BEDFORDSHIRE COUNTY COUNCIL,
where the House of Lords combined five different cases, which all raised the issue
to local authorities in negligence. In each case the local authorities had applied to
have the claim struck out, arguing that there was no cause of action. The
authorities had acted negligently regarding their powers to prevent child abuse,
and the other three cases concerned local authorities’ powers with regard to
providing education for children with special needs.
The House of Lords held that it was not just and reasonable to impose a duty with
regard to protection from child abuse, on the grounds that this was an area where
a degree of discretion had to be exercised.
The current approach
These case seem to establish that the courts intended strictly to limit the liability of
the public bodies for negligence
➔ W v. ESSEX COUNTY COUNCIL
The claimants were foster parents for the council. They had children of their
own and, accepting their first foster child, they had told the council that they
would not take any child who was a known or suspected child abuser. The
council had agreed to this, and later placed a 15 year old boy with them who
the council knew had once assaulted his sister, but they did not tell this to
the foster parents. Later the boy sexually abused the claimant’s children,
and they sued the council for negligence on their children’s behalf.
The Court of Appeal was asked to decide whether the case could go ahead, or
should be struck out. The court held that there were good policy reasons why a
duty of care should be imposed.
The Court of Appeal then heard three cases dealing with local authorities’ liability
for preventing child abuse. The first, D v. EAST BERKSHIRE COMMUNITY NHS
TRUST, was brought by a mother who had been wrongly suspected of harming
her daughter. In the second, MAK v. DEWSBURY HEALTHCARE TRUST, a
father and daughter sued the council for taking the daughter into care under
incorrect suspicion that she was being abused by her father. The claimants in the
third case, RK v. OLDHAM NHS TRUST, were a mother and father whose
daughter was taken into care by the council for a year after they were wrongly
accused of abuse.
The court held that the situation had, since then, changed due to the passing of
the Human Rights Act 1998, which created the right to freedom from inhuman and
degrading treatment. This means that local councils that wrongly take children into
care based upon negligent claims of child abuse can be sued under the HRA
1998. As a result, it no longer made sense today that councils should be immune
from being sued under the tort of negligence so as to avoid the adverse effects of
fear of being sued, since they can be sued under human rights law instead.
➔ LAWRENCE v. PEMBROKESHIRE COUNTY COUNCIL
An attempt was made to use the HRA 1998 to defeat the decision in D v.
EAST BERKSHIRE, but the Court of Appeal rejected this approach.
➔ X v. HOUNSLOW LONDON BOROUGH COUNCIL
The Court of Appeal addressed a new and slightly different issue; what duty
of care, if any, did local authorities owe to vulnerable adults. The Court of
Appeal said that local authority does not owe duty of care to vulnerable
adults, unless circumstances show that they had assumed responsibility.
BREACH OF DUTY
Breach of a duty of care essentially means that the defendant has fallen below the
standard of care expected from someone undertaking a particular activity. Here,
the standard of care is an objective one: the defendant’s conduct is tested against
that of what is expected by a reasonable person in a similar situation. This means
that there is a general standard of reasonableness, and the defendant’s particular
circumstances are irrelevant.
In NETTLESHIP v. WESTON, the claimant was a driving instructor and on her
third lesson, the defendant hit a lamppost, injuring the claimant. The court held
that she was required to come up to the standard of the average competent driver,
and anything less amounted to negligence.
The standard of reasonableness
The standard of care in negligence is never an absolute duty to prevent harm to
others, meaning a person is expected to take necessary and reasonable
precautions to ensure no damage is caused , and is not expected to do anything
and everything possible to prevent harm.
➔ SIMMONDS v. ISLE OF WIGHT COUNCIL
The claimant was a five year old boy who got injured while playing
unsupervised in a park. His mother had sent him to some supervised swings
but, unknown to her, he headed to the nearby swings. He was playing alone
and fell down, breaking his arm. However the court rejected the mother’s
claim that the school had a duty of care to prevent such accidents, as it was
not possible for the school to make a playing field completely free of hazards
in an already well supervised function
➔ HOLT v. EDGE
The claimant’s case against the doctor failed, as the symptoms she had told
him about were unusual for that condition, and so the doctor had not fallen
below any standard of care in failing to diagnose it.
In deciding what behaviour could be expected of a reasonable person in a
particular situation, the courts take into account a number of factors,
balancing them against each other. These include:
1. Special characteristics of the defendant
2. Special characteristics of the claimant
3. The size of the risk
4. Practicality of protection
5. Common practice
6. Benefits to society
Special characteristics of the defendant
Children: where the defendant is a child, the standard of care is that of an
ordinarily careful and reasonable child of that age.
➔ MULLIN v. RICHARDS
The defendant and claimant were two 15 year old girls who were playing
with rulers, and one of the girls went blind when a ruler went into her eye.
The court stated that the correct test would be of whether an ordinarily
careful and reasonable 15 year old girl would have foreseen a risk of injury.
➔ ORCHARD v. LEE
The Court of Appeal stressed that where the defendant was a child, their
behaviour would have to be ‘careless to a very high degree’ before they
should be considered liable for negligence. In this case, that did not apply
where a 13 year old child was playing within a playing area and was not
breaking any rules.
Illness:
➔ ROBERT v. RAMSBOTTOM
The defendant had a stroke while driving and lost control of his car, hence
hitting the claimant. The court held that he should nevertheless be judged
according to the standard of a reasonably competent driver.
➔ MANSFIELD v. WEETABIX
In this case the Court of Appeal took a different approach. Here, the driver of
a lorry was suffering from a disease which on the day in question caused a
hypoglycemic state (a condition in which the blood sugar falls so low that the
brain’s efficiency becomes temporarily impaired). The Court of Appeal said
that the standard of care which applied to him should be that of a reasonably
competent driver who was unaware that he suffered from a condition that
impaired his ability to drive. On this basis, he was not held to be negligent.
Professional and special skills:
➔ HORTON v. EVANS
A pharmacist was held liable for the side effects suffered by a customer
whose GP had mistakenly prescribed drugs eight times stronger than her
usual dose, on the grounds that a reasonably competent GP would have
noticed the increased dosage and queried about it.
➔ BOLAM v. FRIERN BARNET HOSPITAL MANAGEMENT COMMITTEE
The case was brought by a patient who had had electric shock treatment for
psychiatric problems and suffered broken bones as a result of the relaxant
drugs given before the treatment. These drugs were not always given to
patients but the doctors had only given this to the claimant due to the risk of
fractures. The House of Lords stated that so long as a doctor could find an
medical expert prepare to state that the actions complained of were in
keeping with a reasonable body of medical opinion, there would be no
liability
➔ BOLITHO v. CITY AND HACKNEY HEALTH AUTHORITY
The court held that the opinion of medical experts was reasonable, but a
doctor could not escape liability simply because an expert rendered their
actions reasonable.
➔ MARRIOTT v. WEST MIDLANDS REGIONAL HEALTH AUTHORITY
The claimant suffered a head injury and was admitted into the hospital for a
night, to be discharged the next day. He fell ill again and the GP (general
practitioner) found nothing wrong but advised his wife to call if anything was
wrong. Four days later, the claimant was paralysed and this was held to be
the result of the original injury. He claimed that the GP had been negligent in
not referring him back to the hospital, given that he did not have the
resources to test for the particular condition that the claimant was later
diagnosed with. The GP brought expert evidence to suggest that although
this would have been the reasonable course of action, keeping a patient at
home for review was equally reasonable in the circumstance. As a result the
defendant was not held liable.
➔ ADAMS AND ANOTHER v. RHYMNEY VALLEY DISTRICT COUNCIL
The claimants were a family whose children were killed when fire broke out
in the house. The house had double glazed windows which could be opened
with a key, and they claimed that the council had been negligent in providing
this type of window, and the question arose as to whether it was correct to
decide this by applying the BOLAM test, given that the council were not
professional window designers, and the court held that it was.
It was established in BOLAM that where the defendant is exercising a particular
skill, they are expected to do so to a standard reasonable for a person at the
same level in the field.
➔ DJEMAL v. BEXLEY HEALTH AUTHORITY
The standard required was held to be that of a reasonable senior
houseman, acting as a casualty officer, regardless of how long the
defendant had actually been doing that particular job at that level.
➔ BALAMOAN v. HOLDEN AND CO.
The defendant was a solicitor and the only lawyer in the town. The claimant
consulted him for a nuisance claim, although he only had contact with the
solicitor’s staff. He was advised that the claim was for 3000 pounds, when it
was actually for 25000 pounds. He sued the solicitor for negligent
misstatement, but the court held that the solicitor could only be judged to the
standard of a reasonable lawyer in a small country town, and so the claim
failed.
There is a duty to explain any advice given by a professional in a particular field,
but there is no need to give out every detail, or unnecessary information.
➔ CHESTER v. AFSHAR
The House of Lords held that a professional in a field had a duty to not only
take reasonable steps to ensure the advice given was right, but to also
explain that advice.
➔ MOY v. PETTIMAN SMITH
The defendant was a barrister who was sued by a client. The case arose
from another case where the claimant had sued a health authority for
medical negligence. The parties were negotiating on a settlement of
1500000 pounds outside of court and the barrister advised the claimant not
to accept it. The claimant did so, but it actually weakened her case, and so
she sued the barrister for negligent advice and the question arose regarding
negligence. The House of Lords held that the barrister was not negligent, as
the advice she had given was within the range of what wa reasonable for a
barrister, and it was not necessary to spell out all the reasoning behind the
advice as long as it was clear and understandable.
➔ ROE v. MINISTER OF HEALTH
The claimant had been left paralyzed after surgery, because a disinfectant in
which anesthetics were kept leaked. It was invisible and therefore the
defendant was not liable as he had already followed the safety procedure
correctly
Where knowledge and practice within a particular area have changed overtime,
the defendant is to be judged according to the standards accepted at the time the
alleged negligence happened.
➔ MAGUIRE v. HARLAND AND WOLFF plc
The claimant contracted the fatal disease mesothelioma after being exposed
to asbestos from her husband’s work clothes.the court found that at the time
Mr. Maguire had been working at the shipyard, there had been no
information from specialists on workplace safety, or from the medical
profession to suggest that it was necessary to protect family members from
exposure, and so the defendants were not liable.
➔ N v. UK MEDICAL RESEARCH COUNCIL
Failure to look into a possible risk can amount to negligence.
Special characteristics of the claimant:
➔ PARIS v. STEPNEY BOROUGH COUNCIL
The claimant was an employee of the defendants who only had the sight of
one eye, and had been given the job of welding. While doing so, a metal
piece fell into his eye as he had not been provided with goggles. The House
of Lords held that failing to provide goggles would not make the defendants
liable to a worker with no eyesight problems.
➔ BARETT v. MINISTRY OF DEFENCE
The court held that there is no duty to stop someone from drinking, but once
the claimant was drunk, it was assumed that the defendant had assumed
some kind of responsibility for the consequences of intoxication.
➔ GRIFFITHS v. BROWN
The claimant was drunk and asked the defendant, a taxi driver, to take him
to a cashpoint, and got injured there. He sued the driver, and argued that the
defendant owed him a duty as he knew he was drunk, but the court held that
duty of care would not increase simply because the claimant was drunk.
Size of risk: this includes both the chances of the damage occurring and the
seriousness of the damage.
➔ BOLTON v. STONE
The claimant was standing in front of her house when she was hit by a ball
from a nearby cricket stadium. This had happened rarely in the past and the
defendants had erected a 17 foot fence around the fence to prevent such a
situation. The House of Lords held that the chances of such a situation
occurring were so slight that the defendants could not be liable for
negligence, or to take any more precaution.
Practicality of protection:the magnitude of the risk must be balanced against the
costand trouble to the defendant of taking necessary measures to eliminate it.
➔ LATIMER v. AEC Ltd.
Flooding had occurred in the factory due to an unusually heavy spell of rain.
The defendants had covered most of the area with saw dust but not all, as
they didn’t have enough. An employee slipped on a wet floor and got
injured. He sued the factory for not taking reasonable precautions, but the
House of Lords rejected this argument as the defendants could not be
expected to take such onerous measures.
Common practice: in deciding whether liability should be imposed for negligence,
the courts may look at common practice in the relevant field.
➔ WILSON v. GOVERNORS OF SACRED HEART ROMAN PRIMARY
SCHOOL
A nine year old boy was injured by a fellow pupil, when he was crossing the
school playground to go back home. The court held that schools usually did
not supervise students at this time, and so the defendants had not fallen
below any standard of care.
➔ THOMPSON v. SMITH SHIPREPAIRERS
Companies whose industrial practices showed serious disregard for
workers’ health and safety would not evade liability simply by showing that
such behaviour was common practice in the industry.
Potential benefits of the risk:
➔ COLE v. DAVIS GILBERT
The care arose after Cole was walking across a village green and stepped
into a hole, breaking her leg. The hole had been used to hold a maypole for
a village fete, and was dug by the local british legion which had organised
the fete. After the pole had been removed, they had filled the pole but it had
been left open again, causing the accident. The court assumed it had been
done by children while playing, and held that the legion was not in breach of
duty, as they had taken reasonable steps to fill the hole
The court held that the standard of care should not be set higher than was was
reasonably minimum, as doing so would mean that events like village fetes could
not take place at all
DAMAGE
The negligence must cause damage. If there is no damage, there is no claim of
negligence. In most cases, there is obvious damage to person, property, or
economic loss.
The issue of damage to property was the subject of HUNTER v. CANARY
WHARF ltd. The case arose from the construction of a tower, an action
concerning the effects of the construction was brought by the local residents, and
one of the issues that arose from the case was whether excess dust could
constitute damage under negligence. The court held that it did not, as it was an
inevitable result of urban life.
A very different issue was examined in R v. CROYDON HEALTH AUTHORITY
and McFARLANE v. TAYSIDE HEALTH BOARD, where it was considered
whether the birth of a child could be considered damage, and the court held that it
could.