Objective Notes: W300 – Agreements, rights & responsibilities
UNITS 9-11 - MANUAL TWO
NEGLIGENCE
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Fault-based compensation
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Those injured/ damaged have to prove other party at fault & where found,
irrespective of gravity, compensation for all losses must be made since focus
on compensating victim means degree of culpability not taken into account
so Negligent (Neg) behaviour causing injury solely responsibility of def others doing same things where injury does not result have no ‘punishment’;
Def’s means irrelevant to liability (liab) since equality of obligation prevails
but courts recognise not fair to deprive people of all assets so law permits
liab insurance despite this countering fault concept;
Age, experience or subjective foresight of risk irrelevant since injury is same
irrespective of def’s actual ability to avoid harm but arguable that claimant
should be compensated irrespective of fault & it’s wrong that no fault = no
compensation – fault based system fails victims where no fault found;
Proof difficult because of witness absence/ reliability & concentration on
finding specific cause may ignore wider accident type based data so fault
predominance ignores other criteria, costs & alternatives.
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2
Definition of Negligence
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Everyday meaning = lack of care in performing tasks including lack of
supervision &/ or carelessness, failure to take proper care - a state of mind.
But legal meaning = person’s actions/ failure to act give right at law in
respect of injury/ loss suffered by another where established that def owes
claimant duty of care, such duty breached where def fails to meet standards
of reasonable person so def’s state of mind irrelevant -conduct compared to
reasonable person’s &, if found wanting, he has breached duty so intention,
recklessness or inadvertence not the issue – def did not wish to harm &
affects may not have been foreseen by him but by reasonable person’s
standards should have been.
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3
Neighbour principle
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Where def owes duty in any situation he must take reasonable care to
avoid acts/ omissions which can be reasonably foreseen as likely to injure
his neighbour = persons so closely & directly affected by his acts that he
must reasonably contemplate them being damaged/ injured when his
mind is directed to acts/ omissions in question (Donoghue v Stevenson)
so is issue of proximity, not of geography, but of having person in mind duty established where def reasonably ought to have foreseen that
claimant would be injured;
Carparo Industries Plc v Dickman redefined neighbour principle reasonable foresight of harm, sufficient proximate relationship & fair, just
& reasonable to impose duty.
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Objective Notes: W300 – Agreements, rights & responsibilities
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Application of neighbour principle - (Covesee Beach Case Study P5 below)
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In road accidents neighbour principle has established that road user owes
duty to other road users so 1st part of test is found & court must then see
whether duties found in the specific facts;
In Covesee, A has duty to S1 (driver of other car) but may not have duty to
S2 (passer-by) since duty more limited re psychiatric damage.
Standard of care
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Breach of duty of care found where def at fault – failed to meet law’s
standards in fulfilling duty;
Breach test comprises standard of care – how def should have behaved in
circumstances & whether conduct fell below standard;
Reasonable person test
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7
Standard objective & that of reasonable person (Blyth v Birmingham
Waterworks) average but not expected to be perfect – neither very intelligent
nor very stupid, nor very strong or very weak;
Courts have no regard to def’s personal attributes & not whether def in
question foresaw risk etc but whether reasonable person would have so
foreseen in the circumstances.
Not whether def did his best but whether he measured up to reasonable
person’s standards.
Application of reasonable person test in medical Neg
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Doctor must show greater degree of skill/ care than reasonable person who
does nor profess to have that skill & test is degree of skill/ competence of
ordinary competent person professing to have and exercising that skill
(Bolam v Friern Hospital Management Committee) but doctor not negligent
if acting in accordance with practice accepted as proper by responsible
medical opinion;
Not negligent where there are contrary views provided not stubbornly
adhering to techniques contrary to substantially whole of informed medical
opinion but Bolam can be unduly unfair to claimants & too protective of
professionals as based on professionals setting own standards which should
really be assessed/ reviewed by courts & can result in marginally acceptable
treatment being deemed to meet permissible standards of care;
So in Bolitho v City & Hackney Health Authority, held that courts not bound
to find liab avoided merely because action is based on medical opinion that
treatment/ diagnosis was sound unless opinion responsible, reasonable &
respectable – court to be satisfied opinion has logical basis & that experts
took into consideration comparative risks & benefits of treatment;
Doctor may be liab where court’s assessment is that opinion is not reasonable
or reliable but where substantial distinguished experts have such opinion –
particularly where risks/ benefits have been assessed –pre-supposition that
such have been weighed in reaching a conclusion -assessment question of
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Objective Notes: W300 – Agreements, rights & responsibilities
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clinical judgment & not appropriate for court to prefer one of two views
where both are logically supported.
But where opinion does not hold up to logical analysis, it does not provide
bench mark for def’s conduct to be assessed & court can hold that such
opinion is neither reasonable nor responsible.
Causation test
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Method by which courts ensure defs are not liab for losses they did not cause
- whether def’s breach caused loss & Barnett v Chelsea & Kensington
Hospital held only where def’s conduct causes the damage is he liab &
conduct/ omissions must be linked to damage suffered – chain of causation whilst def had breached duty, breach had not caused B’s death;
Courts ask ‘but for’ def’s breach would damage have occurred’ – if answer
no – happened because of breach - then def is liab but if yes – would have
happened anyway – claim will fail so factual not legal test – enquiry into all
circumstances to determine what caused the accident;
In clinical Neg, difficulties arise since opinions may differ as to whether
death/ harm would have occurred with/ without the treatment & in Wilsher
v Essex Area health Authority there was breach bur claimant could not
prove causation because of multi-possible reasons why harm could have
happened;
In multiple cause cases, claimant must show that alleged conduct more
likely than not caused the harm but not that conduct was sole cause of harm,
rather that such conduct materially contributed to the harm (Bonnington
Castings Ltd v Wardlaw);
With multiple defs, each liab where claimant exposed to harm in at least two
distinct employments, there is duty of care re his safety which has been
breached by each from which harm has resulted, each employment made
material contribution to risk of injury being caused & it must not have been
possible to prove by available scientific knowledge which period actually
caused harm;
Where intervening act breaks the chain & that act is non-tortious, causation
not found - no direct link between def’s conduct & final loss since 3rd party
act has broken link (Jobling v Associated Dairies Ltd) but where act is
tortious it will not break the chain (Baker v Willoughby).
Remoteness test
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Neg unfair/unworkable if all losses from breach attributable to def so liab
limited by rules of remoteness necessary to limit liab to sensible, justifiable
amounts & claims to sensible sums, enable insurers/ others responsible for
paying to accurately assess future liabs & ensure claimants do not profit from
incidents;
Original Re Polemis test was direct causation –where shown def liab for all
damage flowing from conduct irrespective of whether def foresaw the
damage so foreseeability relevant only to culpability;
But Wagon Mound (no.1) test is reasonable foreseeability – damage must be
of kind reasonable person would foresee.
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Objective Notes: W300 – Agreements, rights & responsibilities
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Tests cannot be reconciled but Re Polemis not overruled as Wagon Mound
was PC decision so either remains valid law but courts mainly use Wagon
Mound as appropriate test for remoteness;
But ‘egg-shell skull’ (ESS) rule applies as an exception to rule – def must
take claimant as he found him & if damage is reasonably foreseeable type
def liab for all claimant’s losses , irrespective of extent foreseeable (Smith v
Leech Brain);
ESS rule extends Wagon Mound to extent that where Neg conducts results
in harm, def liab for full extent of claimant’s loss where their condition/
disability aggravates this despite it not being possible for def to have
foreseen this – see Unit 16 for application of ESS to psychiatric damage.
Neg element relationship & impact of policy on judgments
Relationship:
 Elements are duty of care, breach of that duty & that such breach caused the
loss & where these are found losses are limited to those attributable to def –
they must not be too remote;
 The relationship = chain of causation – proximity between def type &
claimant type creating duty which def breached resulting in attributable
damage type flowing from breach without intervention of acts/ events
breaking chain & limitation on liab through remoteness rules;
 Elements arguably artificial – particularly treating causation distinct from
duty/ breach - as differences between them blurred in practice and in Spartan
Steel & Alloys Ltd v Martin & Co, Denning referred to difficulty of pigeon
holing elements & felt courts should discard such elusive tests but separation
is helpful in considering whether claimant has valid case so courts continue
to separate elements;
 It is to be considered whether decisions reached through separation process
or whether policy role is predominant;
 Additionally, discarding tests necessitates alternatives – single test, policy
only, no-fault systems & considering whether keeping them produces better
results or, more radically, whether fault based systems are fair – many harms
not compensated because fault not found.
Policy considerations:
 Policy, whilst not always being expressed, impacts on decisions & allows
courts to account for social attitude changes within confines of precedent
enabling tort law change & development;
 The Carparo ‘fair, just & reasonable’ test especially enables policy based
judgments taking into account whether decisions will result in inundation of
claims (‘floodgates’ concerns), which type of conduct should be deterred
where by nature wrong &/ or anti-social, def’s resources, particularly if
insured so that costs of Neg spread across society – or, rather, insured
element – through premium income, public benefit and upholding the law
rather than acceding to public criticism where decisions may be viewed
unjust, however lawful they are;
 Policy enables judicial ability to swiftly adapt to social changes, just results
rather than strict common law adherence & meeting general social needs.
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Objective Notes: W300 – Agreements, rights & responsibilities
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But may produce uncertainty, difficulties in predicting decisions & too rapid
reliance can result in contradictory case law with judicial bias camouflaged
in name of policy;
Arguably separation into various elements = artificial device to justify
policy based decisions so duty of care should be abandoned as element but
it has to be considered what should replace it & whether fault-based
systems can survive on policy considerations alone;
Hepple argues that law is incoherent in drawing artificial lines between law/
policy divisions & should really be conduit for risk assessment by removing
features which only relate to injury/ dearth compensation since tort doesn’t
properly reconcile individual to social responsibility;
Additionally, concept of duty of care should be replaced by considering
whether def’s risk justifiable (fault issue), if not, would damage have
occurred if he had acted without fault (causation) & was damage to claimant
type within the risk’s scope (remoteness);
Where there is no governing precedent, losses should lie where they fall
unless liab distributes losses properly & deters harmful conduct;
Policy needs fuller & open examination by the law to provide coherent
reconciliation of individual & social responsibilities & it is to be considered
whether duty of care concept now obsolete, need for new liab determining
tests & what extent should existing tests be adapted to reconcile decisions
with policy.
CASE STUDY: COVESEE BEACH (P2 ABOVE)
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D is a lifeguard assisted by A;
J is a yachtsman who takes out his friend R in a dinghy despite them having
drunk & there being severe weather warnings & during the trip the dinghy
runs aground & both J & R are injured;
D is not paying attention & doesn’t see the accident but a spectator, F, does
& swims out to help;
F causes damage to the boat which results in injury to himself & R;
A rushes to scene in a jeep but knocks over a child, H, & H’s mum, P, suffers
a heart attack when she sees this;
A rescues the men but forgets to call for an ambulance & drives them to the
hospital;
On route she is not paying full attention & rear ends S1’s car further injuring
J, R & F;
S2, a passer-by, sees the accident & is greatly distressed by this.
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