The Law of Tort and Principles of Negligence Jonathan Hodgkinson

Learning Objectives To understand the nature of tortious liability To identify different areas of harmful activity for which the law of tort provides remedies To examine the different elements required for the tort of negligence

Introduction It arises as a result of a breach of a duty imposed by law.

Tortious Liability Based on duty imposed by law Seeks to protect people from certain types of harmful conduct Owed to a wide range of persons

Law of tort covers civil actions where a claimant has been ‘wronged’ in someway and has suffered some form of damage / injury which the court will compensate them for. Remember – damages / PSLA?

Examples of Torts Tort is an umbrella term for several types of civil wrong: Tort of Trespass to person Tort of Negligence Tort of Nuisance Tort of Defamation Tort of Trespass to land

Negligence covers situations where people suffer personal injury and / or their property may be damaged. Example: in a car crash, the car may be damaged and passengers may be injured, both types of ‘damage’ would fall under the tort of negligence

Terminology Civil Criminal Prosecuted Victim Beyond reasonable doubt Guilty Sued Claimant On a balance of probabilities Liable

General Sequence for Tortious Liability Act or omission Causation Fault Protected interest Damage Liability

But specifically to negligence Negligence formula 3 Is there a duty of care? Has there been a breach of that duty? Did the breach cause damage (that the damage is not too remote / the claimant suffered loss as a result of the breach)? The claimant must prove each part in order

Duty of Care The legal rules relating to this area originate from the case of Donoghue v Stevenson [1932] AC 562 (research the facts!) In this case Lord Atkin laid out the neighbour principle. (What is it?)

Donoghue v Stevenson (1932) Facts Mrs Donoghue went to a café with a friend The friend bought her a drink of ginger beer and ice cream The bottle of ginger beer had dark glass so the inside contents could not be seen After drinking some of it, Mrs Donoghue poured the rest out and saw that it contained a dead and decomposing snail Taken ill because of the impurities in the drink

Donoghue v Stevenson (1932) Injuries resulting from defective products were normally claimed in contract law Donoghue did not have a contract with the seller, as her friend had bought the ginger beer While her friend did have a contract, she had not suffered any injury Neither had a contract with Stevenson, the manufacturer. Donoghue was therefore required to claim damages for negligence

Donoghue v Stevenson (1932) Meow Donoghue v Stevenson (1932) Held: in a narrow sense - the ratio of this case heard ultimately by the HoL developed the principle that a manufacturer has a duty of care to his ultimate customer, whoever that may be. But in a wider sense… The HoL developed the modern tort of negligence when Lord Atkin said, “You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour…”

The ‘Neighbour Principle’ "You must take reasonable care to avoid acts or omissions, which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law is my neighbour? The answer seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind towards the acts, or omissions which are called in question". (Lord Atkin)

Automatic relationships that bring a DoC one road-user to another employer to employee manufacturer to consumer doctor to patient solicitor to client teacher to student

Duty of Care The courts in recent years have sought to limit the expansion of duty of care to new situations. This is a development of the ‘neighbour principle’ Caparo Industries v Dickman (1990) – 3 stage approach: Research the facts of the case and discover what the three stage approach is! Then feedback to the group.

Caparo Industries v Dickman (1990) – 3 stage approach: Was the harm suffered reasonably foreseeable? 2. Was there a relationship of proximity between the parties? 3. Is it fair, just and reasonable in all the circumstances to impose a duty of care?

1. Harm suffered reasonably foreseeable The claimant must show that at the time of Defendant’s negligent act it was foreseeable that some damage to that particular claimant would occur. General example: someone driving at 60mph through a 30mph zone is expected to foresee the possibility of seriously injuring or even killing someone and therefore owes a duty of care to other road users

1. Harm suffered reasonably foreseeable Contrast: Church of Jesus Christ of Latter-day Saints v West Yorkshire Fire [1997] No duty of care owed where the fire service had failed to inspect and maintain hydrants and had insufficient water. (No reasonable foreseeability?) Kent v Griffiths [2000] Ambulance was called to take a patient suffering from a serious asthma attack to hospital immediately The ambulance, without reason, failed to arrive within a reasonable time Patient suffered a heart attack as a result, which could have been avoided Held: it was reasonably foreseeable that the claimant would suffer harm

Topp v London Country Bus (South West) Ltd (1993) A bus driver left a bus unattended with the keys in the ignition Bus was stolen and driven dangerously, causing an accident in which the claimant was injured The damage was held not to be reasonably foreseeable

2. Relationship of proximity between the parties Proximity can be: Physical presence (Bourhill v Young) Varies case to case (Mcloughlin v O’Brian) Must be proximate to what the Defendant has done (or failed to do), not the Defendant themselves

Bourhill v Young (1943) A motorcyclist was going too fast, crashed into a car and was killed Mrs Bourhill, who was eight months’ pregnant, was about 50 yards away She heard the accident, but did not see it Afterwards, she saw blood on the road and suffered shock. Her baby was stillborn as a result. Held: Cyclist did not owe her a duty of care, as he could not have reasonably foreseen that she would be affected by his negligent driving, and she was not sufficiently proximate enough to the damage

Mcloughlin v O’Brian (1983) Lord Wilberforce: Duty of care to secondary victims psychiatric damage…. 1. There had to be a relationship between the primary and secondary victim 2. proximity in time and space to the accident or its immediate aftermath 3. the claimant had suffered injury as a result of what he or she saw or heard.

3. Is it fair, just and reasonable? Public policy test - courts reluctant to impose a duty of care on public authorities Case: Hill v C. C. of West Yorkshire Case: Osman v Ferguson HOWEVER - they will impose a duty if they make the situation worse Case: Capital & Counties plc v Hampshire CC

3. Is it fair, just and reasonable? Why? Imposing a duty on police could lead to policing being carried out in a defensive way, which Likely lead to lower standards of policing

Hill v Chief Constable of West Yorkshire (1990) Serial killer had been murdering women Claimant’s daughter was the killer’s last victim By the time of her death, the police already had enough information to arrest the killer, but had failed to do so Mother claimed that the police owed a duty of care to her daughter

Hill v Chief Constable of West Yorkshire (1990) Held: Failed on grounds of proximity and that it was not fair, just and reasonable to impose a duty of care on the police to unknown victims

Osman v Ferguson (1993) Police officers were aware that there was a real risk of an attack on a schoolboy The attacker had a fixation about the boy and had been following him and causing concern Numerous complaints to police had been made Boy’s father was murdered, and the boy was seriously injured Held: The relationship was sufficiently proximate (unlike in Hill), and the case succeeded as it was fair, just and reasonable to impose a duty of care

Capital & Counties plc v Hampshire CC Fire brigade attended a scene of a fire A fire officer ordered that the sprinkler system in the building be turned off Led to more serious damage than if the sprinkler system had been left on Held: It was fair, just and reasonable to impose a duty of care, as they had made the situation worse

Defences Main defences to an action in negligence: 1. Contributory negligence - where the plaintiff is found to have contributed through his own fault to his injury. The Law Reform (Contributory Negligence Act 1945 states that the plaintiff will receive a reduced amount of damages if he is partially to blame.

Defences (contd.) 2. Consent (Volenti non fit injuria) (“to a willing person, injury is not done") - where the plaintiff is aware of the risk and consents to it. No damages are recoverable in this situation. Morris v Murray (1990) C sues dead D for injuries after being involved in an air accident. Held – defence of Volenti non fit injuria is a good defence in this instance being as it was “glaringly obvious” that the pilot was drunk.