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Tort Law MG
General negligence
| Question | Answer |
|---|---|
| three essential elements must be proven in order to sue for Negligence | D owed C a duty of care/D was in breach of his duty as he did not comply with the standard of care of the reasonable person/C suffered damage (which must be not too remote from the defendant's negligence) as a result of D's breach of duty |
| Donoghue v. Stevenson [1932] | These are taken from the seminal |
| Lord Atkin | take reasonable care to avoid acts or omissions which can reasonably foresee would likely to injure neighbour/persons who are so closely and directly affected by my act that I ought reasonably have them in contemplation |
| Caparo Industries plc v. Dickman [1990]/Lord Bridge | in addition to the foreseeability of damage proximity and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty |
| Sutradhar v Natural Environment Council [2006] | proximity convenient shorthand term for a relationship between two parties which would make it fair and reasonable/duty of care too onerous if C liable for an indeterminate amount or care for an indeterminate time to an indeterminate class of people |
| “category based” approach | the 'three-stage' test is not to be used at all times/; Lord Bridge considers whether a duty of care has been imposed in specific situations in which the duty of care issue has arisen |
| the incremental approach | i.e. a step by step approach/established duty categories are vital to this approach, as a judge faced with a new factual situation has to then to consider earlier cases and extend their principles in to the case before the Court. |
| Murphy v. Brentwood District Council [1990 | followed the incremental approach in novel factual situations |
| Nova Mink v Trans Canada Airlines [1951] | "... the court is stating as a conclusion of law what is really a conclusion of policy as to responsibility for conduct involving unreasonable risk". |
| Hill v Chief Constable of W Yorks [1988] | duty of care would lead to unduly defensive practices by D |
| La Banque Financiere de la Cite SA v Westgate Insurance Co. Ltd. [1988] | An alternative remedy is available to C (especially an action for breach of contract) |
| Greater Nottingham Co-Operative Soc v Cementation Piling [1988] | A duty of care would undermine the requirements of other causes of action e.g. where there has been a complex commercial contract negotiated between the parties |
| Peabody Donation Fund v Sir Lindsay Parkinson [1984] | C is the 'author of his own misfortunes' |
| Duty of care: types of defendants | Public Bodies/Police/Professional Rescuers |
| Public Bodies | Generally not automatically immune from suit in negligence/but apparent from the decisions taken by the courts that there is reluctance to find that a duty is owed by local authorities to individual claimants. |
| Police | A similar approach applies to cases where a police force is a potential defendant (vicariously, with the Chief Constable as the named defendant), and there is no precedent for a duty of care to be owed. |
| Hill v Chief Constable of Yorkshire Police [1988] | held police did not generally owe a duty of care to individual for their activities/such a duty might exceptionally arise where the police assumed a particular responsibility to a particular member of the public |
| Fire Brigade/Capital and Counties plc v Hampshire County Council and Others [1997] | held fire brigade is not under a common law duty of care to answer a call/also held that even where the fire brigade has turned up, this does not create a sufficient degree of proximity with the owner of the premises so as to create a duty of care. |
| Ambulance Service | A similar approach is adopted for the ambulance service |
| Kent v Griffiths [2000] | held that the ambulance service did not owe a duty of care to turn up, but once the service had given an undertaking to arrive, the ambulance should arrive in a reasonable time, unless there was a good reason for it not to do so. |
| Highway Authorities/Gorringe v Calderdale Metropolitan Borough Council [2004] | held that the duty imposed on the defendant by s 41 of the Highways Act 1980 to ‘maintain the highway’ did not include the provision of road signs or markings. |
| Sandhar and Another v Department of Transport, Environment and the Regions [2005] | Held: Duty of care of the defendant did not include prevention of ice formation of removal of snow from the road. |
| Duty of care: omissions/Lord Keith observed in Yuen Kun Yeu v AG Hong Kong [1988] | the law will NOT generally impose liability in respect of omissions (i.e. liability is confined to misfeasance and does not extend to non-feasance). |
| Lord Goff then identified five exceptions to this basic principle | where a duty arises from the occupation and control of land/where D controls something dangerous/where D gives an undertaking/where there is a special relationship between C and D/where the D is expected to exercise control over a third party |
| where a duty arises from the occupation and control of land | Cunningham v Reading FC 1991 |
| where D controls something dangerous | Haynes v Harwood [1935]/Goldman v Hargreave [1967] |
| where D gives an undertaking | Barnett v Chelsea and Kensington HMC (1969) |
| Undertakings are normally required to be explicit | Stansbie v Troman [1948] |
| implied | Mercer v SE and Chatham Railway MC [1922] |
| where there is a special relationship between C and D/or parent/child, school/child etc. | Stansbie v Troman [1948] 2 KB 48 |
| where the D is expected to exercise control over a third party | Home Office v Dorset Yacht Club [1970]/Hudson v Ridge Manufacturing [1957] |
| Duty of care: the defendant’s duty TO rescuers | negligent defendant who causes an accident to the victim will also be liable to the rescuer/also applies if it is the victim's own negligence that causes the rescue attempt in which the rescuer is injured. |
| Videan v British Transport Commission CA [1963] | if a person by his fault creates a situation of peril he must answer for it to any person who attempts to rescue the person who is in danger. |
| Breach is determined by reference to two questions | how ought the D to have behaved in all the circumstances of the case (standard of care)/on the facts, did D's conduct fall below the appropriate standard, in the circumstances? |
| How ought D to have behaved? | In other words, what was the standard of care expected of D? |
| the standard of care expected of D | standards of behaviour of the hypothetical reasonable man against which the behaviour of the D is judged/objective test which does not usually take into account any personal circumstances of D himself. |
| Blyth v Birmingham Waterworks Co (1856) | "Negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do." |
| number of policy questions | a) What implications will a decision one way or the other have on future costs?/b) What is fair and just in all the circumstances?/ |
| c) Do any public interest considerations arise?/d) Who can best bear the loss?/e) Was D insured? | |
| The reasonable man test | ‘the man on the Clapham omnibus’/ or ‘the man who takes the magazines at home and in the evening pushes the lawnmower in his shirt sleeves’Hall v Brooklands Auto Racing Club [1933] |
| Nettleship v Weston [1971] | The standard of care takes no account of the individual weaknesses |
| categories of defendants where the courts have consistently deviated from the reasonable man test | Non adult defendants/Sick and disabled people/The elderly/Defendants with special Skills/Professionals and experts/Sportsmen and women |
| Non adult defendants | The standard is such as can be reasonably expected of an ordinary child of the same age as the D. |
| Sick and disabled people | Buckley v Smith Transport [1946]/not expected to exercise as high a standard of care as other people in the same situation, but according to the standard of a person suffering from the same disability. |
| The elderly/Daly v Liverpool Corporation [1939] | Stable J absolved an old lady from contributory negligence in getting in the way of a bus |
| Defendants with special Skills | the standard applied to him will not be that of the ordinary reasonable man, but rather that of the reasonably competent practitioner in the relevant specialist area/ Phillips v William Whitely [1938]/Nettleship v Weston [1971] |
| Professionals and experts | same high standard of care as people with equivalent expertise/Bolam v Friern Hospital Management [1957]/ modified by Bolitho v City and Hackney HA [1997] |
| the Bolam test | whether the defendant doctor acted in accordance with a practice accepted at the time by a responsible body of medical opinion/entirely dependent on doctors' evidence |
| For how junior doctors are treated | Wilsher v Essex AHA [1986] |
| Midland Trust Bank v Hett, Stubbs and Kemp [1979] | Oliver J said that the standard to be applied to the solicitor defendant was that of a reasonably competent solicitor/ a widespread practice of the profession is not good enough. |
| Edward Wong Finance v Johnsons, Stokes & Master [1984] | Even the sanction of common usage did not help the defendant/ held that the D was negligent since there was a foreseeable risk that the vendor's solicitor might run off with the money and the D's were under a duty to guard against this risk. |
| Sportsmen and women | Amateurs are distinguished from professionals/Wooldridge v Sumner [1963]/D was required to take 'reasonable care in all the circumstances' and Condon v Basi [1985] 2 All ER 453. |
| Did D fall below the standard of care? | If the risk was unforeseeable D will not be held to have acted in breach of his duty of care since he cannot be expected to guard against unforeseeable circumstances/Roe v Minister of Health [1954] |
| Bolton v Stone [1951] | It does not however follow automatically, that a D is in breach of his duty of care if the risk was foreseeable |
| Read v Lyons & Co Ltd [1947] | Thus the law will expect D to exercise a degree of care "commensurate with the risk created" |
| Courts will consider | The likelihood of harm/The severity of the potential damage/The social utility of D's act/Cost and practicability of taking precautions/normal Practice |
| The likelihood of harm | Bolton v Stone [1951] but contrast with Miller v Jackson [1977]also Haley v London EB |
| The severity of the potential damage | Paris v Stepney BC [1951] |
| The social utility of D's act | The D's purpose in acting will also be taken into account as in Watt v Herts CC and Daborn v Bath Tramways [1946] |
| Cost and practicability of taking precautions | see Latimer v AEC [1953]/however that a D's lack of resources may not of itself excuse a public body such as a Health Authority for failing to act/see e.g R v Central Birmingham HA ex parte Collier |
| normal Practice | Where D has acted in accordance with generally accepted practice this may be a defence/see Sidaway v Bethlem Royal Hospital Governors ([1985] |
| /but this is not conclusive evidence since common practice may be in breach of the duty of care | |
| Lord Tomalin's statement in Bank of Montreal v Dominion Gresham Guarantee & Casualty Co [1930] | /"Neglect of duty does not cease by repetition to be neglect of duty". |
| Lips v Older [2004] | held that the landlord should have foreseen the likelihood of the harm, the severity of the potential injury and should have considered the cost and practicality of taking precautions (i.e. erecting a handrail). |
| Res Ipsa Loquitur | 'the situation speaks for itself'/ Doctrine developed for some VERY RARE cases where there is no evidence of what actually occurred. |
| Definition | “An inference of negligence, which, in the absence of evidence in rebuttal, is sufficient to impose liability” Jones M.A.(2002) Torts, Blackstone Publishing |
| 3 requirements/from the case of Scott v London & ST Katherine Docks (1865) | D must have been totally (100%) in control of thing that caused the damage/Accident could not have happened without carelessness on the part of someone/The cause of the damage must be unknown |
| Easson v London & NE Railway [1944] | There cannot possibly have been any interference by a third party/child fell out of express train. Door could have flown open or been opened by passenger – no RIL. |
| Glass v Cambridge Health Authority [1995] | RIL applied where heart of healthy patient stopped during surgery for no apparent reason/this cannot possibly have happened without anyone being careless. Unusual in medical negligence cases, however. |
| Effect | it becomes up to D to prove, on the balance of probabilities, that he did NOT cause the accident (which is very difficult to do!). |
| Ng Chun Pui v Lee Chuen Tat [1988] | RIL does NOT reverse the burden of proof/It is still up to C to prove the breach of duty, but if there are facts which cannot ever be known by either side, no matter what, the doctrine of RIL assists the C. |
Created by:
kudoak