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Negligence

Negligence

What is it?
The breach of a duty you hold to your ‘neighbours’.  Your ‘neighbour‘ in law, is anyone who is affected by your actions.  In a negligence case, the claimant must prove that the defendant owed a duty of care, that they breached this duty and that there was damage as a result of this breach.

Where does it come from?
The neighbour principles originates from [Donaghue v Stephenson]The defendant was bought a drink and upon finishing it found there was a slug in the bottom, and consequently became ill. She was owed no duty of care because she hadn't bought the drink. This landmark case changed that and made it so that those whom are directly affected by your actions will become your neighbour in law, and as such you will owe a duty of care to..  This was the first case that allowed a third party to be responsible for their actions on a party that they did not directly deal with, but whom was affected by their negligence.  This has since been adapted by a two-part test in [Anns v Merton LBC]The council failed to notice that the foundations of a building were only 2ft 6 inches, instead of the required 3ft. Their negligent inspecting produced a breach of duty. A two stage test was developed., and more recently in the now present three part test of [Caparo v Dickman]Caparo purchased a large amount of shares in a company based on a negligently produced set of accounts. It was held the defendant was not liable to be held accountable for the produced documents..

Is a duty of care owed?
The three part test from [Caparo v Dickman] is as follows:
(a)  Was the damage, the type and kind that was reasonably foreseeableE.g. Is driving a car at 50 mph in a 30 mph zone, likely to cause some damage if the defendant loses control of the car.? [Bourhill v Young]The defendant heard a car crash whilst she was getting of a tram. She later saw blood and was sent in to nervous shock. It was not reasonably forseeable that the defendant would receive this type of damage.
(b)  Is there a close proximityE.g. Does a driver owe a duty of care to pedestrians. between the two parties? – [Bourhill v Young]The defendant heard a car crash whilst she was getting of a tram. She later saw blood and was sent in to nervous shock. There was not a sufficient degree of proximity between her and the negligent act.
(c)  Is it fair, just and reasonableE.g. Will making all drivers responsible for losing control of their cars when speeding be unfair. to impose a duty upon the defendant?

In most cases, it will be quite straight forward whether a duty of care is owed, but what about cases such as when a police officer fails to get to an emergency in time, did they owe a duty of care?  This is where the third part of the test from Caparo is considered.  Courts now also bring in to mind whether there is a matter of policy that should restrict them from imposing duties between parties. For example, a policeman does not owe a duty of care to attend all scenes of crime [Hill v Chief Constable of West Yorkshire]Mrs. Hill's daughter was the last victim of the Yorkshire Ripper. The police already had Peter Sutcliffe as a possible suspect, but could not be held to of held a duty, because they did not know that she was going to be attacked and it would have been unreasonable to impose this duty., and up until recently barristers could not be held accountable for negligent work [Hall v Simons]Simons was negligent as an advocate for his client, Mr. Hall, there used to be an advocates right not to be held accountable for negligent work, but this case revoked that right..  So why?  Well, in the case of police, nurses and teachers, if they had to be accountable for every action they would be too cautious before doing actions in future, and this would lead to a run down of public services.  Moreover, there is the consideration of time and costs involved.  In the cases of barristers, courts find it difficult to find breaches of duties between advocates and their clients, because a breach of duty might lead to a whole retrial of the initial ‘negligent’ case.

Omissions
A defendant can be held liable for their actions, but what about for something they don’t do; for example failing to help a drowning person. The liability of omissions was set forth in [Smith v Littlewoods]Littlewoods purchased a cinema with the intention to build a supermarket. Children set fire to the cinema which spread to Smith's premises. Fires had been started there before, but this was unknown to Littlewoods. It was held Littlewoods could not be held liable as there was no duty to prevent damage to another.. In general no liability will be owed as a result of an omission, unless (a) there is a special relationship between the parties e.g. contractual relationships – [Stansbie v Troman]A decorator was told to lock up the premises when he was done, but failed to do so. He was held liable., (b) there is a special relationship between the defendant and the party that causes the damage – [Home Office v Dorset Yacht Co Ltd.]Night watchmen were negligent in keeping youth prisoners locked up, and some boys escaped and caused damage to property. They were held responsible because they were responsible for controlling the boys., (c) when a defendant negligently cause a source of danger – [Haynes v Harwood]Harwood left a horse on a busy street. Some boys threw rocks at the horse and it bolted. A policeman tried to stop the horse but was trampled. It was held that Harwood was responsible for creating the source of danger. or (d) where the defendant knew that there was danger on a property but failed to take reasonable steps to prevent it – [Goldman v Hargrave]A lightening strike set fire to a tree. The defendant said that it was God that started the fire, however he was held to be liable as he knew of the fire but did not take any reasonable steps to inform anyone of it..

In other words, if you saw a drowning girl, and there wasn’t some kind of special relationship between you, such as mother and daughter, or teacher and pupil, you would be under no obligation to save her. However, if you did attempt to save her, and made things worse, you would be liable – [East Suffolk Rivers Catchment Board v Kent]The judges held that unless the defendant omission had material worsened the cause of damage, or damage itself, that they could not be liable.

Is there a breach of duty?
In order for their to be a breach of duty, it is considered whether the reasonable person. This means that all disabilities of the defendant are ignored. [Nettleship v Weston]The defendant was a learner driver and negligently crashed in to a lampost. When the court was deciding whether there was a breach of duty, they considered Weston through the mind of the reasonable competent driver. One of the deciding factors behind this, is that drivers are covered by insurance. With this in mind, this decision might not seem so unfair..  In the case of an expert acting in the course of his expertise, he will be compared to the reasonable expert in that field – [Bolam v Friern Hospital]The defendant volunteered for some tests at a mental health institute. He was put under electro-convulsive treatment and suffered fractures. He said that the doctors had not properly constrained him, warned him of the risks or given him muscle relaxant. An expert in the trial said this was how the reasonable doctor would have performed the tests. The court came up with the test where the an individual will be compared to the 'ordinary competent man exercising that particular act'..  When deciding whether there is a breach, the court will also consider the following:-

Magnitude of risk – [Botlon v Stone]A cricket ground which only had a medium sized fence, had a ball hit out of the grounds - something that had happened only one or two times before over many decades. On this one occasion it hit the plaintiff and caused damage. It was held that the risk of damage was so minimal that the defendant had taken reasonable steps in the small fence that they had already put up..
Cost of precautions – [Latimer v AEC]Oil was spilt on a factory floor. Sawdust was used to cover it up, but somebody still slipped. The court held that the alternative was to close the entire factory and this precaution would have been too expensive..
Seriousness of potential harm – [Paris v Stepney BC]A one eyed welder was given a task without any protective eyewear. A piece of metal flew into his one working eye and he became blind. The court held that reasonable steps should have been taken to protect him under the circumstances..
Emergency situations – [Marshall v Osmand]A policeman was chasing a suspect in a car, and crashed. Because of the situation no duty of care was owed because of the error in judgement was made because of a flash decision in an emergency..

Sometimes breach of duty can be difficult to prove.  In these situations, res ipsa loquitur can be used.  Literally, it means ‘the facts speak for themselves’.  If it can be satisfied that (a) the defendant was in control of the thing that caused the injury and (b) the injury could only have been caused as a result of negligence, then the defendant will be found to be in breach of duty. – [George v Eagle Air Services]An airplane crashed, and the claimants husband died. The court held that airplanes do not just 'crash' unless there is some form of negligence. Because of res ipsa loquitur, the tables turned, and it was up to the defendants to prove that they had not be negligent.

Factual Causation
It then needs to be considered whether the defendant would have received the same injuries, had the defendant not breached his duties.  This is known as the ‘but for’ test and was devised in [Barnett v Kensington Chelsea Hospital]Three watchmen complained of stomach aches after their tea break. They were to a local doctors but when the doctor was telephoned, he told them to go and see their own doctors tomorrow. By the next morning one of them was dead and his widow sued. The court found that they had died of arsenic, and even if the doctor had seen them the night before, would have been unable to help him. They devised a simple test 'but for the defendants actions, would the victim still have been injured'?.

Degree of probability – [McGhee v National Coal Board]The plaintiff worked in a brick kiln and walked home every night in his dusty overalls because there were no washing machines at work. He caught a skin disease - dermatitis. The court held he could succeed because the defendants had materially increased the risk of the plaintiff contracting the disease..

Multiple causes of damage – [Fairchild v Glenhaven Funeral Services]The plaintiff had contracted a disease from exposure to asbestos after working for several different employees. Each of the defendants were held to be liable as they had each 'materially increased' the risk of the defendant contracting asbestos..

Successive cause of damage – [Performance Cars Ltd. v Araham]A Bentley was hit by the defendant, in the same spot it had been previously hit. The second defendant was not liable for the cost of the respray, as this will be covered by the defendant in initial crash..

Loss of a chance – [Hotson v East Berkshire Area Health Authority]East Berkshire failed to spot a hip injury received by the plaintiff in a fall. Five days later when it was diagnosed, it had worsened. The court heard that although there was a strong chance this would have happened anyway, there had been a 25% chance that this could have been avoided had it of been spotted earlier. They awarded 25% of the damages based on this delay..

Remoteness of Damages
It needs to be shown that the damage was the type and kind that was reasonably foreseeable and that it is not too remote – [The Wagon Mound]While refuelling the Wagon Mound ship, some oil was negligently spilt in to the sea. Two days later some metal from some welders near to where the ship had been docked set fire to some wool in the sea, which in turn set fire to the oil and damaged the ship that was being welded. It was held that the damage was too remote and could not be reasonably foreseen, and the defendant was not guilty..

The damage caused must be foreseeable, but it does not have to be caused in a reasonably foreseeable way, [Hughes v Lord Advocate]The defendants had a tent over a manhole and had surrounded the tent with paraffin lamps. A ten year old dropped one down the hole and caused an explosion which burnt the boy. Although a burn from a paraffin lamp was expected, it was not expected to be caused by an explosion. The court held that the defendants were still liable.. The defendant can still be liable even if the damage is greater than was reasonably foreseeable [Robinson v Post Office]The plaintiff fell of a ladder and cut his leg. The doctor gave him anti-tetanus injection which he suffered a reaction to. It was foreseeable that he would receive a tetanus injection, and the defendants were liable for the subsequent reaction from the shot..

Intervening events (novus actus interveniens), such as natural events or a third party can affect the outcome of a result; [Knightley v John]Negligent driving of the defendant caused a tunnel to be blocked. A police officer negligently sent the plaintiff through the other side of the tunnel, against the flow of the traffic. This third party act was considered a break in the chain of causation and the defendant was held not liable.. Similarly, acts of the claimant can fail an action – [McKew v Holland & Hannen]The plaintiff injured his leg as a result of the defendant's negligent action. As a result his leg was sometimes unpredictable in it's actions. He decided to walk down a steep staircase with no handrail, whilst holding a small child. He fell and broke his ankle - because of his unreasonable actions to put himself in this position, the defendants were held not liable..

In some rare situations, such as the defendant had a rare allergic reaction, the thin skull ruleTake your defendant as you find them. is applied. In this case, damage is not too remote even if the extent of damage affect the victim more than it would affect another person – [Blaue]The defendant stabbed a woman whom could have been treated, however she was a Jehovah's Witness and refused to have a blood transfusion, and as a result died. The defendant was liable as you hve to take your defendant as you find them..

Defences
Contributory negligence.  Was the claimant partially responsible for his own injuries.  I.e. riding on the side of a vehicle. [Davies v Swan Motor Co.].Davies, a bin man, was holding on to the side of his dustcart when a bus overtook him and crashed, killing him. Both the bus driver, the dustcart driver and Davies were negligent in this action. Davies' wife damages were reduced as a result.  The claimant’s fault must be the legal and factual cause of the harm he suffered.
Volenti.  Did the claimant know of and consent to the risk of danger. [Wooldridge v Summer]A professional photograph at a horse show was knocked down while he leaned over to try and take a photograph. It was held that he was not a reckless spectator and was owed a duty of care and as such volenti could not operate..  Volenti must have seen both a volntary and agreement element from the plaintiff to satisfy the test.
Ex turpi causa.  Cannot run negligence actions while participating in criminal activity. [Pitts v Hunt]The plaintiff encouraged a drunk, uninsured and unqualified driver (the defendant) to drive him in a passenger motorbike. They crashed. The plaintiff couldn't claim because of his part in encouraging the criminal act..

 

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