Negligence 411

7/31/2019 Negligence 411

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LAW OF TORT

Prepared by

Ms Mardiah Hayati Binti Abu Bakar


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THE LAW OF TORTS

Winfield : a wrong the victim of which is entitled toredress

AIMS To determine when a person has to pay

compensation for harm wrongfully caused. Eg, itallows P seeks monetary compensation (damages)

for the injuries suffered.

To determine what conduct may be stopped orregulated by order of court. Eg, It allows P seeks aninjuction to prevent the occurrence or repetition ofharm in the future.


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EXAMPLE

A contractor violates a building code whenconstructing a house. The house thencollapses, injuring somebody. The violation of

the building code establishes negligence perse and the contractor will be found liable, solong as the contractor's breach of the codewas the cause (proximate cause and actualcause) of the injury.


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NEGLIGENCE

Duty of care

1)Reasonableforeseeable

2) Directrelationship of

proximity

Breach of dutyof care

Reasonablemantest

The degree of

probability ofdamage

The skill

Social values

Magnitude ofharm

Damages

Not too remote


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Negligence

Elements of Negligence

1. Duty Of care

2. Breach of Duty Of care

3. Damage has been caused by Ds breach of

duty.


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1st Elements

Existence of Duty Of Care Definition: legal obligations imposed on an

individual requiring that they adhere to areasonable standard of care while performingany acts that could forseeably harm others.

A Defendant will only be liable to the plaintiff innegligence if he owes the plaintiff a duty to take

care EG: duty owed by drivers to the road users,

duties of employers in respect of safety of theirworkers, duties of doctors to patients, duties ofan occupier of land to visitors.


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DONOGHUE V STEVENSON

Held: D is under a legal duty to the ultimatepurchaser or consumer to take reasonablecare that the article is free from defect likely to

cause injury to health. D owes a duty to consumers and users of his

products not to cause them harm.

D is liable.


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NEIGHBOURHOODPRINCIPLE

Test required:

A. reasonably foreseeable & fair ground

B. direct relationship of proximity


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1st Test: reasonably foreseeable

Whether the injury to the P was reasonablyforeseeable consequence of Ds acts oromissions.

It is not required that P must be identifiable byD. Enough if P is one of a class within the areaof foreseeable injury.

P in the zone of danger that is created by Dscarelessness and the injury must be a typethat is likely to occur in the circumstances.


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The plaintiff has to establish that the duty wasowed to him.

Bourhill v Young[1943) AC 92( pg. 34)

Motorcyclist carelessly collided with anothermotor vehicle. P who was pregnant sufferednervous shock at witnessing the aftermath of

the accident and saw blood.Held: No duty of care owed to her. She is

outside the area of foreseeable danger.


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2nd test: direct relationship of

proximity

Whether there is a sufficient relationship ofproximity or neighbourhood between thetortfeasor and the person who has suffered the

loss. Bourhill v Young[1943) AC 92( pg. 34)

P was not in the proximity of the bad driving of

D a motorcyclist who crashed before P cameon the scene. D owed duty of care to the cardriver he collided with. He reasonably foreseethat if he rode his bike too fast he is likely to

crash into a vehicle on the road. P saw the


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Example of reasonable

A drives his car negligently with the result thathe crashes into a group of small childrenwaiting to cross the road outside a primary

school.Few persons suffers nervous shockupon viewing the incidents.

It would not be just and reasonable to imposeduty on the persons with no directrelationships of proximity.


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Example 2

Failure to services car, breaks down, causeshorrified traffic jam.Some victims of jam, mightbe late and received warning letter, loose a

valuable contract..etc Un ended story


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Breach of duty and proof of

negligence

The reasonable man test

Negligence is the ommission to do somethingwhich a reasonable man guided upon those

considerations which ordinarily regulate theconduct of human affairs, would do, or doingsomething which a prudent and reasonableman would not do.

Q: Would a reasonable man have acted as

the Defendant has done if the reasonable

man was faced with the same

circumstances as the Defendant?


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Cases:Nettleship v Weston(1971)

The P gave the D driving lessons.D had beencareful but on her third lesson the car struck alamp post and P was injured.

Held: although D a learner driver, she would bejudged by standard of the average competent

driver. She must drive in as good a manner as adriver of skill, experience and care. She hadtried to control the car to the best of her ability.But since she did not meet the required

standard of care, she is liable.


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Glasgow Corp v Muir{1943}

The appellants allowed a church picnic partyto use their tea room on a wet day.Members ofthe party had to carry the tea urn through a

passage where children were buying icecreams. For unexplained reason the urn wasdropped and children were scalded by the tea.

Whether D should have foreseen that injurywould occur when he brought the urn throughthe passage.

Held: No, because a reasonable man would not

have foreseen such an accident in that


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Factors determining Negligence

1. The skill which the defendant professes tohave. E.g solicitor, plumber, architect

Wells v Cooper[1958]

The D fixed a door handle onto a door. He didthe job as well as an ordinary carpenter woulddo it. The handle came off in the Ps hand and

he was injured Held: D had exercised such care as was

required of him and was not liable.


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3. The magnitude of harm likely

The court will take into account not only the risk of anydamage to P but also the extent of damaged that isrisked

*** probability of the injury occuring

Withers v Perry Chain Co. Ltd The P was prone to dermatitis and was given the most

grease free job available. Despite this she contracteddermatitis. D employers were held not liable as theyhad done all that was reasonable, short of refusing to

employ her at all. *** The seriousness of the injury

Paris v Stepney Borough Council(1951)

-employees with one blind eye should be given anextra precaution to avoid injury.


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4. The importance of the object tobe attained by Ds activity

The social importance or utility of thedefendants actions will allow him to incur risksof injury in his undertakings.

Daborn v Bath Tramways[1946] D drove left-hand drive car and due to his

negligence signalling, an accident occurred.Held: D was not liable as the car was used as

an ambulance during the war period. Thesocial importance of Ds act outweighed theimportance of his duty of care to othes.


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3rd Element : Damages

The Ps damage must have been caused by

Ds breach of duty and the damage must not

be too remote.


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A 50 year old man goes to hospital for astomach operation and after the operation, it isdiscovered that he has suffered brain damage.

To bring an action of negligence, the patientmust establish that the hospital of its agents(doctors,nurses) caused him to suffer a brain

damage. If following the brain damage, he undergoes

severe personality changes as a result ofwhich he losses his job, his wife divorces himand he can no longer lead an independent life,the rule of remoteness of damage will beapplied to determine to what extent he can be

compensated.


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THE END

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Negligence 411