Law 231 L 02

Negligence An Outline of Negligence

The necessary elements of negligence liability: a) a duty of care b) a breach of that duty c) damage to the plaintiff caused by the breach Duty of Care (neighbourhood proximity) Breach of Duty (standard of care) Causation & (factual) Remoteness of Damage (legal) Damage / Loss / Injury (physical harm, psychiatric damage, economic / financial loss) But note the comments of Lord Denning MR on the role of "policy" in Dutton v Bognor Regis UDC [1972] 1 All ER 462 at 475 (CA)

The Duty of Care

The development of the "neighbour" principle: Donoghue v Stevenson [1932] AC 562 Negligible Act (Personal Injury)
buys contract

Mrs D

Friend
negligence ???

Retailer

contract contract

Wholesaler

Assumes manufacturer is ultimately liable Link between negligence liability and contract liability

Manufacturer (Stevenson)

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Hedley Byrne & Co v Heller & Partners Ltd [1964] AC 465 Anns v Merrton LBC [1977] 2 All ER 908 Failure to perform an act McLoughlin v O'Brian [1982] 2 All ER 298 The "retreat" from the Anns test - ("High Water Mark") Caparro Industries v Dickman [1990] 1 All ER 568 A question of whether solely financial / economic damage could lead to a duty of care. The reason given was that the auditor did not know that the accounts would be used for the purpose of merger / take-over. This served to narrow down where the precedent is similar to a particular case. Murphy v Brentwood DC [1990] 3 All ER 908 Overturns "decision" of Ann's Alcock v Chief Constable of S. Yorkshire [1991] 4 All ER 907 Mrs McLaughlin witnessed the accident 2 hours later, and so was deemed acceptable. McLaughlin - O'Brian - set the precedent that the distance between the primary and secondary victims must be small: N.S. (Nervous Shock) D (Damage) Primary Victim Secondary Victim 1) Relationship (must be close - not unmarried partners) 2) Time / Space 3) Witnessed with own senses (e.g. Hillsborough on TV ) Furthermore, you must be suffering from a medically diagnosable illness as a result, if you want to make a clam. House of Lords says you should have the "English stiff upper lip"! The Alcock case is likely to be used as the precedent in future mass incidents. McLaughlin is unlikely to be used again. -2-

Law 231 L 02

Some Duty Situations

Duty - where one must act Power - where on has a choice (you may chose to exercise that power, in which case you must exercise it in a non-negligent fashion) Negligent Infliction of Physical Harm - the foreseeable plaintiff Donoghue v Stevenson [1932] AC 562 Videan v British Transport Commission [1963] 2 All ER 860 (CA) Chadwick v British Railways Board [1967] 2 Al ER 945 Page v Smith [1995] 2 All ER 736 Negligent Exercise of Statutory Powers Anns v Merton LBC [1977] 2 All ER 492 Murphy v Brentwood C [1990] 3 All ER 908 X v Bedfordshire CC [1995] 3 All ER 353

Negligent Infliction of "Pure Economic Loss" Where a negligent act / omission is involved the traditional view is that economic loss is only recoverable when it is consequent upon actual physical harm. Despite the questions raised by the decision in Hedley Byrne (supra), subsequent case law tends to confirm the traditional view, subject to certain notable exceptions. See - Cattle v Stockton Waterworks (1875) LR 10 QB 453 & Spartan Steel v Martin & Co [1972] 3 All ER 557 (CA). Two decisions of the House of Lords, Anns and Junior Books, reopened the debate and provided the main points of controversy in the 1980s. A major area of concern arose from the dissenting speech of Lord Brandon in Junior Books in which he questioned the wisdom of allowing tortuous obligations to be superimposed on existing voluntary obligations arising out of multi-party contractual relationships

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Junior Books Ltd v Veitchi Co Ltd [1982] 3 All ER 201

did not sue, maybe because there was a clause, or main contractor had gone out of business

Junior Books

negligence

Main Contractor

Close relationship (Vichy) ( specialist floor layers)

Sub Contractor

The floor was damaged, this was not damage to property, as the floor was simply a faulty product - and did not cause damage to other property. This case was successful. However, in every case since, which has used Junior Books as a precedent has failed, as courts have distinguished them - i.e. Junior Books doesn't count! Simaan v Pilkington Glass Co [1988] 1 All ER 791 (CA) Greater Nottingham Co-op v Cementation Ltd [1988] 2 All ER 971 (CA) These developments have led to the current position that negligent acts or omissions do not normally give rise to liability for causing pure economic loss, unless there are exceptional circumstances which create a sufficient proximate relationship between the parties. (The position regarding what negligent statements is different.) What constitutes sufficient proximity has been considered recently in the House of Lords Henderson v Merritt Syndicates [1994] 3 All ER 506 White v Jones [1995] 1 All ER 691 Rescuers have more protection from the law than tresspassers.

The Standard of Care in Negligence

Having identified a number of situations in which a person may owe a duty (or in other words an obligation) to another, the next stage is to identify the precise content of that obligation. The question as to whether there has been a breach of duty in any given case can only be answered by reference to the level of duty required of the -4-

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obligor. In general, obligations in tort can be said to be "externally imposed" in the sense that the parties will not have agree them. IN negligence this is achieved by the requirement that the activity is conducted in such a way that it meets the standard if care if the reasonable man. "either the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which the prudent or reasonable man would not do." Alderson B. in Blyth v Birmingham Waterworks (1856) 11 Exch 781 at 784. a) The Reasonable Man (an "objective" test) Bolam v Friern Barnet HMC [1957] 2 All ER 118 Nettleship v Weston [1971] 3 All ER 566 (CA) Bolitho v City & Hackney HA [1997] 4 All ER 771 (HL) b) Foreseeable Harm Roes v Ministry of Health [1954] 2 All ER 131 (CA) Bolton v Stone [1951] 1 All ER 1078 (HL) c) Errors of Judgement Whitehouse v Jordan [1980] 1 All ER 650 (CA); [1981] 1 All ER 267 (HL) d) Application of the Standar, Burden of Proof, the "res ipsa loquitur" maxim There are a number of factors which the court may take into account when determining, as a matter of fact, whether or not reasonable care has been taken, considering all the circumstances of the case. These are questions of fact and should not be elevated to the status of propositions of law. Under civil law (as distinct from criminal law) the burden of proof required is that the Plaintiff must establish "on the balance of probabilities" that the Defendant has been negligent. However, in certain

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situations, a presumption arises that the accident must have been caused by negligence, and then the Defendant must disprove negligence. Bolton v Stone [1951] 1 All ER 1078 (HL) Grant v Australian Knitting Mills Ltd [1935] 1 All ER Rep 756 (HL)

Strict Liability
Note that the Consumer Protection Act 1987 (Part I) has created a "strict liability" regime in the field of Liability for Defective Products. In other words, if the 1987 CPA applies, there is no need to establish "fault" under the general rules of negligence liability. The act creates rights in addition to existing common law rights, and in effect, enables consumers to sue manufacturers of defective products directly, without the need to establish a contractual relationship. However, questions remain as to the effect of the "safety" requirements under s.3(1) of the Act, and the "Development risks" defence under s.4(1)(e) of the Act, both of which have the potential To Whom It May Concern: undermine the "strict liability" regime and reinstate the "reasonableness" test (as above).

Causation & Remoteness of Damage

Having established that a prima facie duty is owed by the defendant to the plaintiff and that there has been a breach of that duty, some further questions remain to be answered before the defendant will be found liable and damages are awarded to the plaintiff Was that breach a factual cause of the plaintiff's loss / harm? Is that loss / harm recoverable in law or is it too remote? What is the measure of damages awarded? a) Factual Causation (the "but for" test) "Subject to the question of remoteness, causation is a question of fact. If the damage would not have happened BUT FOR a particular fault, then that fault is the cause of the damage; if it would have happened just the same, fault or no fault, If YES If recoverable

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the fault is not the cause of the damage." - Denning J in Cork v Kirkby MacLean Ltd [193] 2 All ER 402 at 406 Barnett v Chelsea & Kensington HMC [1968] 1 All ER 1068 McGee v NCB [1972] 3 All ER 1008 (HL) Dermatitis of a miner - factual link of breach, did not need to be proved if it can be shown that the factor being claimed for caused the given illness. Hotson v East Berkshire HA [1987] 2 All ER 909 (HL) Wilsher v Essex AHA [1988] 1 All ER 871 (HL) b) Remoteness of Damage In theory the consequence of any particular act / omission are potentially endless, but legal liability is restricted for practical purposes. Courts decide on basis of policy grounds. Re Polemis [1921] 3 KB 560 (CA) Said actual linkage The Wagon Mound (No 1) [1961] 1 All ER 404 (PC) Said "reasonably foreseeable". However, this case is not binding on law, as it was decided by the Privy Council. But, in practice, it has been adopted and applied. Type of physical injury is not too important. Hughes v Lord Advocate [1963] 1 All ER 705 (HL) Smith v Leech-Brain & Co [1961] 3 All ER 1159 (CA) the "Egg Shell Skull Principle" - does the physical qualities of the claimant affect the compensation sustained? Negligent Act Personal Injury Aggravated Personal Injury

Possible break

New Aggravation

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Sometimes, found to be too remote to claim; often not if he claimant has contributed through his own or others negligence to the new or aggravated personal injury. Page v Smith [1995] 2 All ER 736 (HL) Not reasonably foreseeable reoccurrence of ME. Thin skull shell should apply extended the eggshell principle? c) Intervening Cause (Novus Actus Interveniens) The breach of duty may satisfy the "but for" test but the courts may still not impose liability if it is established that some other factual cause, occurring after the breach, is the actual cause of the damage. This is sometime referred to as a "break in the chain" of causation where the defendant's original breach is no longer said to be the cause because it is too remote! Performance Cars v Abrahams [1961] 3 All ER 413 (CA) Lamb v Camden LBC [1981] 2 All ER 408 (CA) McKew v Holland & Nannn & Cubbits (Scotland Ltd [1969] 3 All ER 882 (HL) Plaintiff already had an injured leg. His own action broke the causal linkage.
personal injury

Negligence

P.I. N.A.I. + P.I.

adds to P.I.

Casual Break } } Too Remote } Wipes Out Liability

Contributory Negligence - does not necessarily wipe out the blame, % ok

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