11:The Tort Of Negligence

Question 1

11: What is a tort ?

Answer 1

A tort is a civil wrong which a remedy ( usually a compensation ) is available to the person being wrong in the civil courts

Question 2

11.4: in order to succeed in an action for negligence what 3 elements are necessary for a claimant

Answer 2

1. The defendant owed the claimant a duty of care
2. The defendant breached that duty of care
3. Reasonably foreseeable damage was caused by the breach of duty

Question 3

11.5: what is duty of care ?

Answer 3

A legal duty to provide a reasonable standard of care to your patients and to act in ways that protect their safety

Question 4

11.5: Explain limited duty of care

Answer 4

Before 1932, courts were very very strict and only recognised a duty of care ( responsibility of not harming others) in few situations
Eg: ppl driving on the road had to take care not to harm others & property owners looking out for visitors
- It was hard to sue for negligence

Question 5

11.5: what is the Donoghue vs Stevenson case

Answer 5

What happened: A woman drank ginger beer that had a dead snail in it. She got sick
- She couldn’t sue under contract law because her friend brought the drink not her
- She sued the manufacturer ( Stevenson) under negligence.
Lord Atkinson created the NEIGHBOUR PRINCIPLE

Question 6

11.5:What is the neighbour principle

Answer 6

You must take care not to harm people who could be affected by your actions.
- A manufacturer must take care not to harm consumers, even if they don’t buy the product directly

Question 7

11.5: What is the Darnley v Croydon NHS Trust

Answer 7

What happened: A man went to A&E with a head injury, a receptionist told him the wait would be 4-5 hours. He left after 19 mins and collapsed suffering brain damage.
- The real wait was much shorter - 30 mins to see a nurse
The NHS owed him a duty of care once he booked in
- That duty included giving correct information - even by receptionists
- The hospital was responsible for the injury

Question 8

11.5.1: How does a claimant ascertain whether it’s owed a duty of care

Answer 8

• of there is a legal authority
  If there is a duty of care recognised by earlier courts

Question 9

11.5.1: what is the Caparo vs Dickman case

Answer 9

What happened:
- Caparo owned shares in Fidelity plc and wanted to buy more shares to take over the company
- Caparo relied on the audited accountant ( Dickman), the accounts were inaccurate
- Based on the false accounts Caparo decided to buy more shares and proceed with a takeover but suffered financial loss , Caparo sued Dickman for negligence in preparing the statements
The decision:
- The House of Lords ruled that Dickman was not liable
- The auditors didn’t owe a duty of care to Caparo for decisions made based in the audit as the audit was meant for shareholders to manage the company not help in share dealings or takeovers.

Question 10

11.5.1.1: what is the Margereson v JW Roberts

Answer 10

In order for a duty of care to exist, the loss or harm caused to the claimant must have been reasonably foreseeable at the time the defendant was negligent
What happened:
- M developed a lung disease due to exposure to abestos dust from the defendants premises during her childhood when she played in the factory loading bay
Decision :
- By the time M was exposed it was already known that abestos dust causes health issues therefore reasonably foreseeable
- Therefore the factory owner was liable

Question 11

11.5.1: What is the 3 stage test outlined in Caparo v Dickman

Answer 11

If there is no existing legal authority , then the 3 stage test can be used
1. The harm or loss caused must be reasonably foreseeable
2. There must be proximity between the claimant and the defendant
3. It must be fair, just and reasonable to impose a duty of care

Question 12

11.5.2: Explain proximity in Negligence law:

Answer 12

Proximity refers to the legal closeness between the claimant and the defendant
- it’s about whether the defendant’s actions could reasonably affect the claimant in a way that would justify holding the defendant legal responsibility
Proximity considerations could include:
1. Personal relationships between parties (e.g doctor-patient)
2. The time elapsed between the event and the harm
3. Possibility of interference ( eg: whether a product was tampered with after being sold )

Question 13

11.5.1.2: what is the Evans v Safety Glass Co

Answer 13

What happened:
- A man bought a car with a Triplex Safety Glass windscreen, which shattered while driving causing injury
Decision:
The manufacturer was not liable
- Time passed: The windscreen had been in place for over a year before the incident
- Other factors: The windscreen could have shattered due to poor fitting, not just a manufacturing defect

Question 14

11.5.1.2: Explain the Home Office v Dorset Yacht

Answer 14

What happened:
- Some boys from a Borstal (youth custody centre) escaped while on a trip with officers, and caused damaged to a yacht
Decision:
The home office was found to have a duty of care to the yacht
- There was a special relationship between the officers and the boys in their custody
- The escape of the boys and the damage they caused was reasonably foreseeable

Question 15

11.5.1.3: Explain ‘ Fair, Just and reasonable’ to impose duty of care

Answer 15

Even if the harm is foreseeable and there is proximity between the parties, the court may decide that it is not appropriate to impose a duty of care
The four will ask:
- is it in public interest to hold the defendant liable?
- Will imposing a duty interfere with the defendant’s ability to perform their role
- Should the injured party have taken steps to protect themselves
It often boils down to pragmatic (realistic) factors and public policy

Question 16

11.5.1.3: Explain the Robinson V Chief of West Yorkshire Police

Answer 16

What happened: Two police officers were involved in a struggle while arresting a drug dealer. During this, they accidentally knocked over and injured a 76 year old pedestrian (R).
Decision: The police owed a duty of care to R
- The injury was reasonably foreseeable during the arrest
- The police had acted carelessly as it was foreseeable that their actions could result in harm to a bystander

Question 17

11.5.1: Explain the Michael V Chief Constable of South Wales

Answer 17

What happened: Joanna Michael called 999, saying her boyfriend had turned up and was threatening her. She called again 14 mins later screaming. When police arrived 8 mins later she had already been stabbed to death
Decision: The Supreme Court ruled that the police did not owe a duty of care because there was insufficient proximity between the police and the victim. The harm was not directly caused by a failure of the police to act.

Question 18

11.5.1.3: Explain the Floodgates argument ?

Answer 18

Courts are often cautious about expanding the duty of care to new situations. They are concerned about creating a situation where too many claims might be mad, which could lead to a flood of litigation
Floodgates arguments: where courts are reluctant to create legal precedents that could result in a large number of similar lawsuits

Question 19

11.5.1.3: Explain failure to act and special duties

Answer 19

Generally there is no duty to act in English law, meaning you are not usually liable if you fail to intervene when someone is in danger. However there are exceptions where a duty of care exists for failure to act:
1. Specific duties: eg, a lifeguard has a duty to help a person struggling in a swimming pool, and parents have a duty to care for their children
2. Undertaking a responsibility: if someone voluntarily takes on a duty, they may be liable for failing to act when someone depends on them

Question 20

11.5.2: What is pure economic loss?

Answer 20

This refers to financial loss without physical damage or personal injury. Therefore the courts won’t let you claim negligence - unless there’s a special relationship or duty.
Eg: someone else’s property is damaged and you lose out financially
A vet kills cattle ( not yours), and you lose auction profits . This is pure economic loss and you can’t usually claim

Question 21

11.5.2: Explain the Weller v Foot and Mouth Research Institute

Answer 21

What happened: Virus escaped, cattle died, auctions were cancelled
Result: Auctioneers lost money but couldn’t claim - no damage to their property - pure economic loss

Question 22

11.5.2: Explain Spartan Steel v Martin & Co

Answer 22

What happened: Power cut caused
1. Damage to steel in process - recoverable
2. Lost profit from those melts - recoverable
3. Lost profits from the me
Ts that weren’t made - not recoverable ( pure economic loss)

Question 23

11.5.2.2: Explain pure economic loss as a result of negligent statements

Answer 23

Normally you can’t claim compensation for pure economic loss in negligence unless:
1. There is a special relationship or assumption of responsibility

Question 24

11.5.2.2: What is the exception that allows claims for pure economic loss

Answer 24

Close and direct relationship between the claimant and defendant. This happens when:
1. The defendant knew their actions/statements would affect the claimant.
2. The claimant was someone the defendant could reasonably foresee being harmed

Question 25

11.5.2.2: Explain the solicitors and beneficiaries example?

Answer 25

Ross vs Caunters - A solicitor failed to warn about incorrect witnessing of a will - the beneficiary lost their inheritance - Court said the solicitor owed a duty of care to the intended beneficiary White v Jones - Solicitor delayed preparing a new will - daughters lost inheritance - Solicitor had assumed responsibility, so a duty of care was owed.

Question 26

11.5.2.2: What is the 2nd exception that allows the claim of pure economic loss?

Answer 26

A negligent statement if there is a special relationship This is proven by: 1. The defendant assumed responsibility for the accuracy of the statement 2. The defendant had special skill/ knowledge 3. The claimant reasonably relied on the statement 4. It was foreseeable that the claimant would rely on it. If these are met, a duty of care exists, even if there is no contract

Question 27

11.5.2.2: Explain key cases of negligent statements

Answer 27

Hedley Byrne vs Heller - Bank gave financial info without responsibility, claimant lost money relying on it - Principle: There can be liability for negligent misstatements if there’s a special relationship - Result: no liability because of a valid disclaimer Spring vs Guardian Assurance - Ex-employer gave a negligent job reference, claimant couldn’t find new work - Result: Employer owed duty of care - there was reliance and assumption of responsibility

Question 28

11.5.2.2: What is the Caparo test?

Answer 28

In Caparo vs Dickman, the court limited negligent misstatement claims You must prove: 1. The statement was made for you or a group like you 2. It was for a specific transaction 3. The defendant expected you would rely on it without checking further Caparo relied on inaccurate company accounts to buy shares Result: no duty of care - the accounts weren’t prepared specifically for them

Question 29

11.5.2.2

Question 30

11.5.2.2: what other exceptions can prevent liability

Answer 30

Disclaimers but only if reasonable - Hedley Byrne: the bank’s disclaimer meant it wasn’t liable - Smith v Eric Bush: a disclaimer in a surveyor’s report was invalid under the Unfair Contract Terms Act 1977

Question 31

11.5.3: Explain psychiatric injury and it’s link to claiming compensation

Answer 31

Sometimes referred as nervous shock it’s a type of personal injury but it is more problematic to claim - it’s harder to diagnose - Easier to fake - Difficult to calculate compensation - Risk of opening the ‘floodgates’ - too many claims

Question 32

11.5.3: who can claim for psychiatric injury?

Answer 32

1. Primary victims - Directly involved in the accident or event caused by negligence - At risk of physical injury, even if they only suffer psychiatric harm - Easier to claim 2. Secondary Victims - not involved directly : they may - witness the event, arrive at the scene shortly after - Much harder to claim. Stricter rules apply Because it’s not fair or reasonable to hold defendants responsible for every person emotionally affected by witnessing a tragic event

Question 33

11.5.3.1: What is the Dulieu vs White

Answer 33

A horse and cart crashed through a pub window. A pregnant woman behind the bar feared for her life and developed a psychiatric illness Court allowed the claim - her fear for her own safety was real and immediate

Question 34

11.5.3.1: Explain the Grieves vs FT Everard

Answer 34

Claimant was exposed to abestos at work He didn’t get sick but became mentally I’ll from worry about possibly getting I’ll in the future Court said there was no claim : - it wasn’t foreseeable that a reasonable person would become mentally I’ll just from worry - no duty of care for psychiatric injury caused by fear of future illness

Question 35

11.5.3.1: Explain psychiatric injury at work

Answer 35

Employers can be liable if: 1. The psychiatric harm was reasonably foreseeable 2. The employer knew or should have known 3. And failed to protect the employee The mental injury must be medically diagnosed and foreseeability must be proven

Question 36

11.5.3.2: Can rescuers claim for psychiatric injury?

Answer 36

Yes but only if: 1. The rescuer was in actual danger 2. The rescuer was reasonably believed they were in danger

Question 37

11.5.3.2: Explain the Chadwick v British Rail

Answer 37

A man volunteered to help after a major train crash where 90 people died. He saw horrific scenes and later developed a psychiatric illness Courts decision: he claimed compensation it was foreseeable that volunteers would help and might suffer mental harm . He was physically at risk due to unstable wreckage

Question 38

11.5.3.3: What is a secondary victim and give a case example

Answer 38

It is someone who witnesses a serious accident and is not in danger themselves but suffers a psychiatric illness because of what they saw or feared Hinz vs Berry - A woman saw her husband die and her children injured in a car crash She developed a psychiatric illness and was allowed to claim

Question 39

11.5.3.3: what do limits have to be proven for a secondary victim to get a claim

Answer 39

According to the Alcock case

Question 40

11.5.3.3: What proofs does a secondary victim pass to get claims

Answer 40

1. Close tie of love and affection with the victim 2. Proximity to the event or immediate aftermath ( physically near, seen or heard it with your own eyes and ears) 3. A recognised psychiatric illness

Question 41

11.6.4: Explain element 2 - The Defendant broke their duty of care

Answer 41

To win a negligence case, it’s not enough to show the defendant owed a duty of care but they must a,so prove that the defendant breached that duty by failing to act like a reasonable person in the same situation

Question 42

11.6.1: Explain the Standard of Care

Answer 42

The standard of care is objective - based on what a reasonable person will do - you can’t defend yourself by saying ‘ I was inexperienced’ or ‘ I didn’t know better.’ Eg: Nettleship v Weston A learner driver crashed during a lesson, the court said she was held to the same standard as any competent driver

Question 43

11.6.1: Explain children and professional people abd the standard of care

Answer 43

Children are held to the standard of a reasonable child of the same age Eg: Orchard v Lee - A 13 year old accidental injured a teacher while playing tag, court said a typical 13 year old wouldn’t have foreseen serious harm therefore no breach Professionals are judged by what a competent person in their job would do - regardless of their experience Eg: Phillips vs Whiteley - Claimant got infected after ear piercing, court judged the piercer by the standard of a competent piercer not doctor therefore no breach

Question 44

11.6.3: Factors that affect breach of duty

Answer 44

Courts look at several things to decide if the defendant acted unreasonably 1. Probability of harm eg: Miller v Jackson ( cricket balls damaged property often) risk was high breach occurred 2. Seriousness of harm: if potential harm is very serious, more care is expected. Eg: Paris v Stepheny 3. Practicality and cost of precautions: if precautions are cheap and easy, they should be taken 4. Social usefulness / emergency: if someone acts in an emergency or for the public good, some risk is acceptable therefore no breach

Question 45

11.6.4:

Question 46

11.6.4: Explain the compensation Act 2006 in regards to negligence claims

Answer 46

This law helps judges decide whether someone has breached their duty of care in negligence claims - without changing the rules themselves - Encourages common sense when judging if someone should have done more to avoid injury - Aims to protect socially useful activities from being shit down because there’s a small risk of injury

Question 47

11.6.4: What does section 1 of the compensation act include ?

Answer 47

Courts consider: Would extra precautions stop a useful activity from happening? Would it discourage people from helping or running those activities ?

Question 48

11.6.4: what does section 2 include in the compensation act

Answer 48

Saying sorry or offering help doesn’t count as admitting guilt Eg: Welly-Wanging case

Question 49

11.6.5: Explain proving a breach of duty

Answer 49

To win a negligence claim, the person suing must prove, on the balance of probabilities, that the defendant broke their duty of care They do this: 1. Use of criminal convictions ( Civil Evidence Act 1968) - If the defendant has already been found guilty of a criminal offence, that can be used as proof in a civil negligence case. 2. Res Ipsa Loquitar ( the thing speaks for itself) The doctrine shifts the burden of proof to the defendant if: - The defendant was in control of the situation that caused harm - The harm would not normally happen without negligence - The exact cause is unknown If these apply, the defendant has to prove they weren’t negligent Eg: Ward v Tesco Stores

Question 50

11.7: what are the 3 things to prove in negligence

Answer 50

The claimant must prove: 1. The defendant owed a duty of care 2. The defendant breached that duty 3. Tge breach caused the claimant loss or damage that was reasonably foreseeable

Question 51

11.7.1: What is the ‘But For’ test - proving cause

Answer 51

To succeed the claimant must show that the injury or loss would not have happened but for the defendant’s negligence Eg: Barnett v Chelsea A man went to hospital but was sent home without being treated . He died of arsenic poisoning. The hospital breached its duty, but he would have died anyway so the hospital wasn’t liable

Question 52

11.7.2: what happens when there are multiple cases - several parties may be to blame

Answer 52

Sometimes it’s hard to say who exactly who caused the harm. Courts may relax the strict rules if a party significantly increased the risk of harm Eg: McGhee vs National Coal board

Question 53

11.7.3: Explain remoteness of damage

Answer 53

A defendant is only liable for damage that a reasonable person could have forseen - If the damage is too far-fetched or unusual, it’s considered too remote Eg: The Wagon Mound - the fire from the oil spill was not foreseeable therefore not liable Hughes v Lord Advocate - explosion wasn’t expected, but burns were foreseeable therefore defendant was liable

Question 54

11.7.4: Explain the eggshell skull rule

Answer 54

Even if the victim has a special weakness, the defendant is fully responsible for the actual harm caused Eg: Smith v Leech Brain Man suffered a burn at work, which triggered cancer due to a pre-existing condition. Defendant was liable for the death even though only a minor burn was foreseeable

Question 55

11.7.5: Intervening Acts - Breaking the chain of causation

Answer 55

If something else happens after the defendant’s action that causes the injury, it may break the causal chain. This is called a novus actus interveniens Eg: Mckew v Holland Man with an injured leg tried to walk down stairs unassisted, fell and made it worse Court said he acted unreasonable - his own actions broke the chain