Negligence in Tort (2017)
Category : Law of torts
A tort that concerns with breach of a legal duty to take care, and because of that breach, damage is caused to the claimant/ plaintiff. The claimant is usually compensated if he or she suffers damage as a result of the defedant’s damage.
Most torts normally protect specific interests of the claimant. Eg; the tort of nuisance protects against interference with the claimant’s use and enjoyment of land. The tort of battery (tresspass to the person) protects the claimant’s peson. Defamation protects against damage to reputation.
Negligence is much wider than other types of torts. It protects against three different types of harm;
• personal injury
• damage to property
• economic loss
Similar to other types of torts, there are 3 elements before a defendant can be held liable for negligence;
• the defendant must owe the claimant a duty of care
• the defendant must breach that duty of care
• damage is caused to the claimant because the defendant’s breach of duty of care
If any of these elements are missing, a defendant will not be liable for negligence. Eg; a driver might be driving recklessly, but as long as he does not cause any damage to anyone, he cannot be liable for negligence.
Duty of care is a legal concept which dictates the circumstances in which a person will be liable to another in negligence. This means that if a person is negligent, and causes damage to others, he/ she cannot be liable if he/ she does not owe the claimant a duty of care; eventhough the claimant suffered a very serious damage.
The purpose of this concept is to restrict the circumstances when where a defendant will be held liable for negligence. Without this concept, it will be very difficult to control the number of negligence cases.
The origin of duty of care can be traced back to the case of Donoghue v Stevenson (1932). In fact, this case is the main case that created the modern tort of negligence.
– Mrs Donoghue and her friend went into a cafe for a drink. She asked for a ginger beer, and her friend bought it. The ginger beer was in an opaque
bottle. Mrs Donoghue drank some of it, and when she poured the remaining contents, a decomposing snail fell out of the bottle. Mrs Donoghue became ill, and she sued the manufacturer.
Donoghue had not ordered or paid for the drink herself, so there was no contractual relationship between Donoghue and the cafe owner. Tort law at this time did not allow Donoghue to sue the cafe owner. There was a contractual relationship between the cafe owner nad the friend, but the friend had not drank the ginger beer. Ginger beer was not a dangerous product, and the manufacturer had not fraudulently misrepresented it. At that time, those were the only two grounds for claiming negligence against a manufacturer. On the face of it, the law did not provide a remedy for Donoghue.
However, she sued the manufacturer claiming that he owed her a duty to take reasonable care that ginger beer he manufactured, bottked, labeled and sealed and invited her to buy, did not contain substances likely to cause her injury. She also claimed damages.
The House of Lords agreec that the manufacturers owed a duty of care to the end consumer of their products. The ginger beer manufacturers had breached that duty, causing harm to Mrs Donoghue, and she was entitled to claim damages.
For the benefit of future cases, their Lordships attempted to lay down general criteria for when a duty of care would exist. Lord Atkin came up with the neighbour principle. According to him, ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.’ ‘Neighbour’ in this sense does not mean person who lives next door. According to LordAtkin, our neighbours are those ‘person who are so closely and directly affected by my act that I ought to have them in contemplation as being so affected when Iam directing my mind to the acts or omissions which are calle in question.’
In other words, if a person will be directly affected by our acts or omissions, they are considered as our neighbours, and we owe them a duty of care. We must keep them in mind when we are doing something.
In the case of Caparo Industries plc v Dickman (1990), the House of Lords stated that there were now 3 questions to be asked in deciding whehter a duty of care was owed by the defendant to the claimant. They are:
a) was the damage to the claimant reasonably foreseeable? (commonly referred to as reasonable foreseeability)
b) was the relationship between the claimant and the defendant sufficiently proximate? (commonly referred to as proximity of relationship, or simply proximity)
c) is it just and reasonable to impose a duty of care? (commonly referred to
1. REASONABLE FORESEEABILITY
3. JUSTICE AND REASONABLENESS
as justice and reasonableness)
Foreseeable means predictable. Reasonable foreseeability of damage means that a reasonable person (an ordinary person or an average person) can predict that damage might happen due to a certain negligent act. Eg; if a driver does not turn on the headlights during the night, he can reasonably predict that other cars might not see him, and might hit him.
In Langley v Dray (1998), the defendant was driving a stolen car. He was chased by the claimant (who was a policeman). As a result of the chase, the claimant crashed his car and he was injured. He sued the defendant for negligence.
The Court of Appeal held that the defendant knew, or ought to have known, that he was being chased by te claimant. Therefore, when he increased his speed, he knew or should have known that the claimant wil also increase his speed and so risk injury. The defendant had a duty of care not ot create such risks,and by driving fast, he was in breach of that duty.
In addition, the defendant has to be able to identify a particular individual who might foreseeably be affected by their actions; as in the case i of Haley v London Electricity Board  AC 778.
Proximity means closeness. If the claimant and the defendant are close – whether physically or legally speaking – a duty of care can rise. The concept of proximity of relationship can be traced back to the neighbour principle. If a person is directly affected by our acts, he/ she is considered as having a proximate relationship with us.
In Watson v British Boxing Board of Control (2000), the claimant was the famous professional boxer Michael Watson. He suffered severe brain damage after being injuredduring a match. He sued the Board because they were in charge of safety arrangements at professional boxing matches, and evidence showed that if they had made immediate medical attention available at the ringside, his injuries would have been less severe.
The Court of Appeal held that there was sufficient proximity between the Board and Watson. The Board were the only body in UK which could license professional boxing matches, and therefore, it had complete control of, and responsibikity for a situation which couold clearly result in harm to Watson if the Board did not exercise reasonable care.
Normally, the courts only determine whether it is just and reasonale to impose a duty of careif a case meets the requirements of foreseeability and proximity, but the courts believe that there is a sound public policy reason for denying the claim.
In MacFarlene v Tayside Health Board (1999), the claimant became pregnant after her partner’s vasectomy failed (the vasectomy was performed in the defendant’s hospital). She claimed for the costs of bringing up the child. The courts denied her claim on the basis that it was not just and reasonable to award compensation for the birth of a healthy child. In fact, most people would consider a healthy child a blesssing.
In negligence, the courts expect the defendant to act in a manner in the same way an average person would act in a particular situation. For instance, a reasonable average driver will drive within the speed limit, give a signal before making a turn, and so on. This means that every activity, there is a ‘standard behaviour’ which is expected by the courts.
Breach of duty of care means that the defendant has fallen below the standard of behaviour expected in someone undertaking the activity concerned.
In Vaughan v Menlove (1837), the defendant constructed a hayrick, or a stack of hay, near the border of the property he rented from the plaintiff. The defendant was repeatedly warned that the hayrick was in danger of catching fire over the courseof five weeks. Despite the warnings, defendant said that ‘he would chance it.’ The hay eventually caught fire, burning down both defendant’s bulidings and the cottages of the plaintiff on a neghbouring parcel of land.
It was held that the defendant was liable for negligence. According to the court, even though it was not the defendant who caused the fire, it was well known that hay would catch fire if npot properly stacked. A reasonable person would have stacked the hay properly, and because the defendant did not act like a reasonable person, he has fallen below the expected standard, and therefore, he has breached his duty of care.
The negligent act of the defendant must cause damage. However, there are cases where the claimant thinks that the defendant’s negligence has caused the damages, but at the same time, the law does not see it that way.
For example, in the case of Hunter v Canary Wharf Ltd and London Docklands Development Corporation (1997), there was a construction of a big tower block (a large business and shopping developmnet) known as Canary Wharf in East London. Because of this construction, there was excessive dust in the area. The local residents sued the defendant, and one of the issues was whether excessive dust could be considered as damage to property. The Court of Appeal concludede that the mere deposit of excessive dust was not damage because dust is an unavoidable incident in urban life. There must some physical chance to property due to the dust before it can be considered as damage (for eg, dust causing damage to electrical equipment).