2. Negligence Flashcards
(36 cards)
What does liability under the fault principle depend on?
Liability under the fault principle depends on showing that the defendant’s conduct has fallen short of an objective standard.
Negative implication: there is no liability without fault.
Positive implication: where there is faulty conduct which foreseeably causes damage, the defendant ought to make good the damage caused.
What is the potential problem with the positive implication of the fault principle?
It raises the spectre of virtually limitless liability.
The duty of care plays a key role in limiting the reach of the tort of negligence. There will be liability only if the tortfeasor breached a duty of care owed to the claimant.
Important cases in the development of the duty of care
Donoghue v Stevenson (1932) - Lord Atkin - neighbour principle
Anns v Merton (1978) - Lord Wilberforce - single, universal test for the duty of care in negligence
Caparo v Dickman (1990) - a tortfeasor will be subject to a duty of care only if there are positive reasons for holding the defendant responsible for the claimant’s loss
Besides a breach of a duty of care, what else is needed for an action in negligence?
Negligence is a damage based tort, and the claimant must also show that appropriate damage was caused by the defendant’s breach of duty
–> ‘cause in fact’ v ‘cause in law’
In order to succeed in a claim in negligence, what must the claimant show?
He must show that the following criteria are met:
- The defendant owes the claimant a duty to take care
- The duty has been breached
- The defendant’s breach of duty has caused the claimant to suffer loss or damage of a relevant sort –> ‘cause in fact’
- That damage is caused in law by the defendant’s negligence / is not too remote / is within the scope of duty
What is the standard of care?
The standard of care defines what conduct will count in law as negligence or lack of care –> in this sense it defines the ‘content’ of the tort
What is special about the tort of negligence?
While some other torts (for example actions in defamation) are defined according to the interest they protect, the tort of negligence was and is defined primarily according to the ‘quality of the defendant’s conduct’.
Conduct is judged according to whether it falls short of a relevant objective standard of care.
What is the relevant standard peculiar to negligence?
It is that of the ‘reasonable person’. In general, we must judge the defendant by the standards of a reasonable person who is undertaking the task or activity in the course of which the negligence is said to arise.
The ‘reasonable person’ test is generally an objective one –> not adjusted to fit the particular qualities of the defendant. In the sense that is sets standards which are sometimes not reasonably attainable for particular defendants, negligence does indeed involve an element of ‘strict’ liability of a certain sort.
Nettleship v Weston (1971)
Facts: The defendant was a learner driver. She was given driving lessons by the plaintiff, a family friend. She ‘froze’ at the wheel, so that her car mounted the pavement and struck a lamp post. This caused injury to the plaintiff instructor. The plaintiff and defendant were in joint control of the car, since the instructor was operating the gear stick and handbrake while the defendant was steering.
The Court of Appeal held that the defendant’s conduct fell below the required standard of care, which was the same objective standard owed by every driver.
Lord Denning had three reasons for holding the learner driver to the same standard as an experienced driver:
- Criminal law did not excuse the learner driver, so tort law shouldn’t either. (‘The learner driver may be doing his best, but his incompetent best is not good enough.’)
- Practicality: It would be inappropriate and confusing for the driver of a car to owe different duties to different passengers in the car and to different individuals outside the car, depending on what they knew or did not know about the driver’s competence.
- Insurance: The injured person is only able to recover if the driver is liable in law. Thus, the judges will ‘see to it’ that those who carry liabilit insurance will be liable for losses they cause. –> This raises difficult questions!
Tomlinson v Congleton (2003)
General: In a case concerning the duties of occupiers to those on their premises, it was made clear by the HL that individual claimants retain personal responsibility for their own safety. In this case, a momentary act of carelessness (diving into water that was too shallow) led the claimant, a teenager, to break his neck. He was rendered tetraplegic.
Lord Hoffmann: ‘Perhaps it should, but society might not be able to afford to compensate everyone on that principle, certainly at the level at which such compensation is now paid. The law provides compensation only when the injury was someone else’s fault.’
Variations of the objective standard - children
Where children are concered, the applicable standard of care will be determined according to age. –> Children will be held to the standard of the ‘typical’ child of their own age.
Waller LJ emphasised that the risk of significant personal injury would need to be reasonably foreseeable to a child of the defendant’s age, before breach of the duty of care could be established. –> While children can be expected to show some foresight and care, they cannot be expected to show the degree of care shown by a resonable adult.
Mullin v Richards (1998)
Facts: The plaintiff suffered an injury to her eye when a plastic ruler broke during a mock swordfight at school. The plaintiff’s claim against the education authority (based on alleged failures of supervision) was unsuccessful, but the judge awarded damages against her fellow pupil, subject to a reduction of 50 per cent for contributory negligence. The Court of Appeal reversed the decision to award damages. In answering the question of whether the injury could be said to have been foreseeable, age was a relevant factor.
Bringing an action against the organisation or occasionally the individual who had the responsibility for supervising the child
There needs to be some failure to exercise due care on the part of the supervisor.
Mullin v Richards (1998) –> no grounds for holding the school liable for failure of supervision
Palmer v Cornwall (2009) –> school was found liable when a rock thrown at a seagull by a child hit the claimant in the eye. It was not the individual supervisor who was at fault: there was a failure to provide an adequate number of supervisors.
Woolridge v Sumner (1963)
The plaintiff, a photographer, was seriously injured when the defendant, a participant in a horse show, rode his horse too fast around a corner and veered into the area where the photographer was standing.
Diplock LJ: ‘A person attending a game or competition takes the risk of any damage caused to him by any act of a participant done in the course of and for the purpose of the game or competition notwithstanding that such act may involve an error of judgment or a lapse of skill, unless the participant’s conduct is such as to evince a reckless disregard of the spectator’s safety.’
What is one of the key concerns behind ‘compensation culture’? Discuss in relation to the Perry v Harris (2008) case.
One of the key concerns behind ‘compensation culture’ is the threat that some forms of recreation will be abandoned because of the risk of liability that might be associated with them. On this acount, there is too much emphasis on safety, to the detriment of valued risk-taking of all sorts.
Judgment in Perry v Harris (2008) (bouncy castle) is designed to deliver a message, that negligence law does not set unrealistic standards for everyday activities. The emphasis is on a reasonable parent, rather than on the contents of ‘official’ documents and guidance relating to the equipment. The domestic setting was therefore very important to the outcome.
A reasonable parent would not have kept the children under constant surveillance; nor stopped the children from somersaulting; nor prevented children of different sizes from using the bouncy castle at the same time, even though these were touched upon in the instructions supplied.
Wilsher v Essex Health Authority (1987)
In this case, Mustill and Glidewell LJJ explained that there would be no exception to the ‘objective’ standard of care where an inexperienced or newly qualified medical professional was concerned. Rather, the applicable standard would be set according to the post that is filled by the defendant. Where the plaintiff was cared for in a specialist unit, in this case a neonatal unit, the applicable standard of care was a high one. This standard would be variable according to the post held within the team providing care for the plaintiff, but it would not be variable according to the level of experience held by the particular individual member of staff.
The ordinary skilled person professing to have a special skill
The standard of care to be applied in any given case will depend upon the activity being performed by the defendant. In support of Mustill LJ’s mixed approach, it is clear that the relevant standard will in some cases also depend on the kind of skill that the defendant professes to have (as opposed to their level of experience, which should be irrelevant).
The Bolam test
Relates to the question of how the law should approach a case of alleged negligence against a professional person where that person’s conduct is supported by some, but perhaps not all, fellow professionals.
McNair J: ‘… he is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art … Putting it the other way round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion who would take a contrary view.’
Criticism of the Bolam test
The application of the Bolam test within the medical context has led to accusations of a protectionist stance towards doctors. Two broad problems have been identified:
- Bolam has been applied in these cases in such a way that the court’s judgment is replaced with the judgment of the defendant’s medical expert, as long as the expert is found to be honest and respectable.
- It has been suggested that many aspects of medical negligence litigation have been inappropriately ‘Bolamized’. In other words, wherever a tricky issue arises concerning the standard of care in a medical context, the habitual response of the courts has been to reach for the Bolam test, and to resist making their own judgments.
Bolitho v City of Hackney Health Authority (1998)
Summary: medical negligence; causation
Abstract: B, the administratrix of the estate of a child, P, who suffered catastrophic brain damage when respiratory failure resulted in cardiac arrest, appealed against a Court of Appeal ruling [1993] P.I.Q.R. P334, [1994] C.L.Y. 3368 dismissing her appeal against the dismissal of her claim for damages for medical negligence. The trial judge had found that P’s doctor had breached her duty of care by failing to attend P, but that the breach had not caused P’s death since, had the doctor attended, she would not have performed the intubation needed to save P’s life and, on the basis of the expert medical evidence presented, she would not have been negligent in failing to do so. In reaching the latter conclusion, the judge had applied the test established in Bolam v Friern Hospital Management Committee [1957] 1 W.L.R. 582 and B contended that the Bolam test had no application to issues of causation and the judge had misdirected himself in referring to it.
Held, dismissing the appeal, that the Bolam test was of central importance in determining whether the doctor would have been negligent in failing to intubate. However, the court was not obliged to hold that a doctor was not liable for negligent treatment or diagnosis simply because evidence had been called from medical experts who genuinely believed that the doctor’s actions conformed with accepted medical practice. The reference in Bolam to a “responsible body of medical men” meant that the court had to satisfy itself that the medical experts could point to a logical basis for the opinion they were supporting. Where cases concerned the balancing of risks against benefits, the court had to be sure that, in forming their opinion, the medical experts had considered the issue of comparative risks and benefits and had reached a view which could be defended. However, it would only be in rare cases that the court would reject the medical experts’ view as unreasonable and the evidence did not support such a conclusion in the instant case.
In principle, this case clarifies that the final judgment on breach of juty lies with the court, not with medical practitioners.
In the endm the crucial determinant whether the Bolitho restatement of the Bolam test will make any different will be judicial attitudes. There are some signs of a greater judifical willingness to question the practices of the medical profession, evidenced not only by Bolitho, but also by the more recent case of Chester v Afshar.
More general conclusion: It would seem unlikely that the medical profession will escape the much more general trend towards external, rather than purely internal, review of standards, complaints, and professional practice.
Overseas Tankship (UK) Ltd v The Miller Steamship Co (‘The Wagonmound No 2’) (1967)
This was an appeal to the Privy Council from the Supreme Court of New South Wales. The respondents had two ships at Sheerlegs Wharf in Sydney Harbour, undergoing repairs. The appellant was charterer of another ship, The Wagon Mound, which was taking an oil from the nearby Caltex Wharf. Because of the carelessness of The Wagon Mound’s engineers, a large quantity of oil overflowed on to the surface of the water and drifted towards Sheerlegs Wharf where it accumulated around the respondent’s vessels. That oil was set alight, causing extensive damage to the two vessels.
The owners of the two damaged ships brought an action against the charterer of The Wagon Mound. The action was successful. It was concluded that the ignition of the oil though unlikely was nevertheless foreseeable. The question was whether it was justifiable to create this particular risk by spilling the oil, given that the risk was so low. Because there was no benefit to be derived from spreading the oil on the water, the answer was that it wasn’t.
Bolton v Stone (1951)
Bolton v Stone posed a new problem. There a member of a visiting team drove a cricket ball out of the ground onto an unfrequented adjacent public road and it struck and severaly injured a lady who happened to be standing in the road. That it might happen that a ball would be driven onto this road could not have been said to be a fantastic or far-fetched possibility: according to the evidence it had happened about six times in 28 years. And it could not have been said to be a far-fetched or fantastic possibility that such a ball would strike someone in the road: people did pass along the road from time to time. So it could not have been said that, on any ordinary meaning of the words, the fact that a ball might strike a person in the road was not foreseeable or reasonably foreseeable - it was plainly foreseeable. But the chance of its happening in the foreseeable future was infinitesimal. A mathematician given the data could have worked out that it was only likely to happen once in so many thousand years. The House of Lords held that the risk was so small that in the circumstances a reasonable man would have been justified in disregarding it and taking no steps to eliminate it.
How can Bolton v Stone and The Wagonmound 2 be distinguished?
Some risks, though foreseeable, are very low in probability. The fact that a risk is small (in probability terms) does not justify us in ignoring it. There must, as Lord Reid says, be some valid reason for neglecting it. For example, the cost of precautions may be very high. In The Wagon Mound itself, there was no justification for releasing oil into the harbour, so that even if the risk of ignition was tiny, there was no good reason for having disregarded it.
The question is, as Lord Reid put it, whether a reasonable man, careful of the safety of his neighbour, would think it right to neglect the risk.
Whom does the burden of proving negligence lie on?
The burden of proving negligence lies on the claimant in the usual way, and must be discharged to the usual standard, namely on the balance of probabilities. (To establish breach, it must be shown that its more likely than not that the defendant was careless.) If the circumstances strongly suggest negligence, then the claimant may have little else to do than state the facts. This is why it may appear as though the burden has shifted to the defendant. (He must then bring some evidence of lack of carelessness.)
The classic statement of this ‘doctrine’ is as follows: ‘But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.’ (Scott v The London and St Katherine Docks Company (1865))
