Negligence-Torts

8/13/2019 Negligence-Torts

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BBM notes Compiled by Njihia Kaburu

7) Torts II

i) The tort of Negligence

ii) Elements of negligence

iii) Damages for negligence

iv) Professional negligence

THE TORT OF NEGLIGENCE

Negligence of course means carelessness, but in 1934 Lord right said!"#n strict legal anal$sis, negligence means more than heedless or careless conduct, %hether in

omission or commission! it &ro&erl$ connotes the com&le' conce&t of dut$, breach and damage

thereb$ suffered b$ the &erson to %hom the dut$ %as o%ing( *Lochgelly Iron and Coal Co v

McMullan +1934 -. 1 at /0)

This sentence enca&sulates the traditional tri&artite structure of negligence as a tort( #t is not enough to sho%

that defendant %as careless! the tort involves a breach of duty that causes damage that is not too remote(

Defn:carelessl$ carr$ing out an act and breaing a legal dut$ of care o%ed to another causing them loss or

damage(

Thus2 to succeed in an action for negligence, the claimant must &rove that2

The defendant had a duty of careto avoid causing inur$, damage or loss(

That there %as breach of that dutyb$ the defendant(

#n conseuence, the claimant suffered n!ury" dama#e or $oss(

Duty of Care

5or one to succeed in negligence $ou must first &rove that the defendant o%ed $ou a dut$ of care( 5or

centuries the la% has recognised relationshi&s in %hich one &erson o%es a dut$ to another( hat %as lacing

%as a #enera$ %rnc%$e on ho% to assess this dut$( T%o &rinci&les have develo&ed over the time(

The Neighbour Princi&le *6asic 7ule)

This %as develo&ed in the landmar case of2

Donoghue v Stevenson 1932

- &urchased a bottle of ginger beer for consum&tion b$ 6( 6 dran all the contents, %hich contained the

remains of a decom&osed snail and became ill( 8e sued the manufacturer( The manufacturer argued that

there %as no contract bet%een himself and 6 and so no dut$ of care( 8ELD! Ever$ &erson o%es a dut$ of

care to his "neighbour, to &ersons "so closel$ and directl$ affected b$ m$ act that # ought to reasonabl$ to

have them in contem&lation as being affected( #n la$ing the &rinci&le, the udges said2

"The rule that you are to love your neighbour becomes in la! you must not inure your neighbour#

and the layer$s %uestion! &ho is my neighbour' receives a restricted re(ly) *ou must ta+e

reasonable care to avoid acts or omissions hich you can reasonably ,oresee ould be li+ely toinure your neighbour) &ho! then! in la is my neighbour' The anser seems to be - (ersons ho

are so closely and directly a,,ected by my act that I ought reasonably to have them in contem(lation

as being so a,,ected hen I am directing my mind to the acts or omissions hich are called in

%uestion)"

The current test! foresight, &ro'imit$ and fairness

The test is no% stated in this form( The claimant has to sho% three things if there is to be a dut$ of care!

#t %as reasonabl$ foreseeable that a &erson in the claimants &osition %ould be inured(

There %as sufficient &ro'imit$ bet%een the &arties(

#t is fair, ust and reasonable to im&ose liabilit$ i(e( should the dut$ be restrictedlimited for reasons ofeconomic, social or &ublic &olic$:

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;5oreseeabilit$; means %hether a h$&othetical ;reasonable &erson; %ould have foreseen damage in the

circumstances(

;Pro'imit$; is shorthand for Lord -tin;s neighbour &rinci&le( #t means that there must be legal &ro'imit$,

i(e( a legal relationshi& bet%een the &arties from %hich the la% %ill attribute a dut$ of care(

There is no single case identified %ith this test, but one of its best e'&ositions is b$ 6ingham L< in the .ourt

of -&&eal in Ca(aro Industries vDic+man +19=9 >6 ?03 at ?@=A?=B(

&reach of that duty

The second element that a claimant in negligence must &rove is that the dut$ of care %as breached( This is to

be then assessed using a certain standard of care(

The basic rule

The basic rule is that the defendant must conform to the standard of care e'&ected of a reasonable &erson(

"Negligence is the omission to do something %hich a reasonable man guided u&on those

considerations %hich ordinaril$ regulate the conduct of human affairs, %ould do, or doing something

%hich a reasonable and &rudent man %ould not do( *.lythe v .irmingham&ateror+s *1=0?) 11

E'ch @=1)

/rdinary (erson in ordinary circumstances

Cne of the fe% cases in %hich the 8ouse of Lords has had to consider the behaviour of an ordinar$ &erson in

ordinar$ circumstances *not involving s&ecial sill or no%ledge) is 0lasgo Cor(oration v Muir +1943

-. 44=( Lord acmillan highlighted t%o im&ortant as&ects of the test!

*a) "The standard of foresight of the reasonable man is, in one sense, an im&ersonal test( #t eliminates the

&ersonal euation and is inde&endent of the idios$ncrasies of the &articular &erson %hose conduct is in

uestion( #t is an obective test( The abstract reasonable &erson is &ut into the shoes of the defendant, %ho is

e'&ected to have the same general no%ledge and understanding of riss *sa$, that ic$ roads are sli&&er$ or

that children ma$ get u& to mischief) as the reasonable &erson( The actual defendant ma$ be stu&ider ormore ignorant, or ma$ be cleverer or more no%ledgeable, but is still udged b$ this abstract im&ersonal

standard(

*b) "#t is still left to the udge to decide %hat, in the circumstances of the &articular case, the reasonable man

%ould have had in contem&lation( 8ere there is room for diversit$ of vie%( hat to one udge ma$ seem farA

fetched ma$ seem to another both natural and &robable( The outcome is therefore to that e'tent

un&redictable even in the tin$ minorit$ of cases that are resolved in court(

De,endants ith s(ecial s+ills or %uali,ications

ost of the difficult re&orted cases ho%ever involve defendants %ith s&ecial sills or ualifications( #t %ould

be sill$ to as %hether a reasonable "&erson %ould have driven the car, removed the a&&endi' or designed

the building in the same %a$ as the actual motorist, surgeon or architect %ho is being sued( #n such cases thedefendant is to be com&ared to a reasonable &erson %ith the relevant sill or ualification( This is not al%a$s

as eas$ as it might be(

5or one thing, there is sometimes doubt as to e'actl$ %hat sill or ualifications the defendant &rofesses

to have(

5or another, there ma$ be doubt as to %hether a large grou& *sa$ car drivers or doctors) should be subA

divided into smaller categories for the &ur&ose of com&arison %ith reasonable members of the grou&(

an$ cases involve car drivers( The onl$ standard of care is that of a reasonable driver, %hether the actual

driver is highl$ e'&erienced, ne%l$ ualified or even ust a learner( #t is irrelevant that the learner driver

defendant %as doing as %ell as she could, given her lac of e'&erience, if a reasonable driver %ould have

done better(

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-dditional factors

Cther factors to consider in assessing %hether the defendant breached hisher dut$ of care include2

Probabilit$ of inur$! %hen the ris and &robabilit$ of inur$ is high, the higher the standard of care

e'&ected of a reasonable man( E(g %hen dealing %ith vulnerable classes of &eo&le lie children, %arning

notices %ill not be sufficient(

eriousness of the ris! the old or $oung ma$ be &rone to more serious inur$ than the rest( Fou must

tae $our victims as $ou found them2 and so %hen the ris of serious inur$ is higher, the dut$ of care

reuired is raised(

aris v Ste(ney .orough Council

P %as em&lo$ed b$ G on vehicle maintenance( P had alread$ lost one e$e( ince ris to e$e inur$ %as

small, it %as not the normal &ractice to issue and insist on googles for &rotection( - chi& of metal fle%

to Ps good e$e rendering him &ermanentl$ blind( 8ELD! there %as a higher standard of care o%ed to P

because an inur$ to his remaining good e$e %ould blind him2 thus G liable(

Practicalit$ and .ost! #t is not al%a$s &ossible to tae all &recautions( here the cost or disru&tion

caused to eliminate the danger far e'ceeds the ris of it occurring, it is liel$ that defendants %ill be

found not to have breached their dut$ if not im&lement them(

Latimer v C Ltd

The defendants o%ned a factor$ that became flooded after a &eriod of heav$ rain, %ith the %ater beingmi'ed u& %ith oil on the factor$ floor leading to sli&&eriness( a%dust %as a&&lied to the maorit$ of

areas affected, but the claimant sli&&ed in one of the fe% untreated areas and fell( 8ELD! the

defendants tried their best to minimise the ris( To eliminate it allAtogether, the$ %ould need to close

the factor$2 %hich %ould be e'tremel$ e'&ensive(

.ommon Practice! one %ill have met hisher dut$ of care if heshe can &rove that their actions %ere in

line %ith common &ractice or customs of a &articular tradeindustr$ or a &articular &lace(

ocial 6enefit! some instances of ris$ conduct are e'cused if the$ confer some social benefit( E(g( fire

engines, ambulance etc

Professions and ill! &ersons %ho hold out themselves to &ossess a &articular sill are udged on %hat a

reasonable &erson &ossessing the same sill %ould do in the situation( ost &rofessions set their o%n

standards of care for their members %hch form the basis for assessment(

7es #&sa Louitr

Her$ often the claimant ma$ not be able to find out %hat ha&&ened( - &ared car, for e'am&le, ma$ have

moved off %ithout %arning do%n a hill( -ll the claimant can do is sho% that such a thing does not normall$

ha&&en unless there has been negligence( The claimant can then mae use of a rule of the la% of evidence

called res i(sa lo%uitur *the facts s&ea for themselves)( Fou must as $ourself!

*a) %hen it is legitimate to use the ma'im

*b) %hat the effect of invoing it is(

#ts onl$ legitimate to use this &rinci&le in the follo%ing instances2

The thing %hich caused the inur$ %as under management and control of the defendant(

The accident %as such that %ould not occur if those in control used &ro&er care(

Cnce successfull$ invoed, the burden of &roof is reversed and the defendants must &rove that the$ %ere not

negligent( E(g

4ichley v 5ould 1967

- car sidded to the %rong side of the road I it %as enough to indicate dangerous driving(

Mahon v /sborne 1939

- surgeon %as reuired to &rove that leaving a s%ab inside a &atient after an o&eration %as not negligent(

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- casualt$ doctor sent a &atient home %ithout treatment, referring him to his o%n doctor( The &atient died of

arsenic &oisoning( 8ELD! %hile the doctor %as negligent, arsenic &oisoning %as so serious that the &atient

%ould have died an$%a$(

#n a number of situations the a&&lication of the "but for test %ould lead to outcomes that %ould be absurd or

arguabl$ unust( The courts have in some of these cases been &re&ared to abandon or modif$ that test( These

are called s&ecial &roblems in causation including2

ulti&le causes

This occurs %here there are a number of &ossible causes of inur$ including the negligent act( The courts are

left to decide on the facts of each case %hether the negligent act %as the most liel$ cause of the inur$(

&ilsher v sse:

The health authorit$ had failed to detect that the catheter had been %rongl$ inserted and therefore the

&remature bab$ received too much o'$gen( That %as held to be negligent( E'cess o'$gen can cause

blindness in &remature infants( #t is ho%ever onl$ one of several causes2 including si' others( 8ad it been

the cause in the case of ilsher: The 8ouse of Lords held that this had not been established on the balance

of &robabilities, so that there %as no direct causal lin(

The courts are a bit fle'ible in a&&l$ing legal &rinci&les2 es&eciall$ in e+ce%tona$ cases(

5airchild v 0lenhaven 5uneral Services Ltd ; /thers 2


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5or long times, the onl$ la% that remained that could hold such liable %as the normal &rinci&les of tort la%

including Donoghue v Stevenson andnns v Merton London .orough Council( These onl$ hel&ed cover

negligent misstatements that did not cause financial loss( 8o% about those that caused it:

&ecial 7elationshi&

7ecover$ for negligent misstatements %as limited to situations %here there e'isted a contractual or fiduciar$

relationshi& bet%een the &arties( 8o%ever, Lord Denning in 1901 &ro&osed another test %hich %as not

immediatel$ acce&ted( This %as in2Candler v Crane! Christmas ; Co 1971

- bad investment %as made based on negligentl$ &re&ared accounts( The investors claimed for negligent

misstatement( #n his dissenting udgment, Lord Denning held that a &erson %as liable for negligent

misstatements if there e'isted a s&ecial relationshi&( To establish this relationshi&, the &erson %ho made the

statement must have done so in some &rofessional or e'&ert ca&acit$ %hich made it liel$ that others %ould

rel$ on %hat he said e(g( accountant, baner, surve$or etc( Cn accountants, Lord Denning said that the$ o%e

a dut$ of care to not onl$ their clients, but all those %hom the$ no% %ill rel$ on their accounts in the

transactions for %hich those accounts are &re&ared( 8o%ever, his %as onl$ a dissenting udgment and the

.ourt of -&&eal held the accountants not liable(

T%elve $ears later, s&ecial relationshi& %as acce&ted as a valid test( This led to a ne% udicial a&&roach to

cases involving negligent misstatements( This %as in the case of2

edley .yrne ; Co veller ; artners Ltd +19?4 -. 4?0(

The claimants through their baners ased the defendants for advice about the credit%orthiness of one of the

latters customers( The defendants gave a reasonabl$ favourable re&l$, and the claimants e'tended credit to

the customers and suffered losses in conseuence( The 8ouse of Lords held that in &rinci&le the defendants

o%ed a dut$ of care to the claimants and %ould have been liable to them for the resulting losses if the$ had

not given the advice "%ithout res&onsibilit$ on our &art( 5or the moment $ou can ignore the &oint about

"%ithout res&onsibilit$ and consider the issues of &rinci&le( The case &rofoundl$ changed the la% in t%o

res&ects!

*a) The defendants %ere held to o%e a dut$ to tae care in the advice or information that the$ gave*b) That dut$ e'tended to &urel$ economic losses(

8o%ever, for one to succeed in such a claim, there a&&ears to be three reuirements2

a) The claimant relied on the defendant;s sill and udgment or his abilit$ to mae careful enuir$2

*b) The defendant ne%, or ought reasonabl$ to have no%n, that the claimant %as rel$ing on him2 and

*c) #t %as reasonable in the circumstances for the claimant to rel$ on the defendant(

7easonable foresight

Cver time, the courts e'tended &otential liabilit$ and started to tae account of third &arties not no%n to the

adviser( This %as stated in2

. 5asteners Ltd v Mar+s! .loom ; Co

The defendants *accountants) &re&ared audited accounts sho%ing overAvalued stoc hence inflated &rofit(

The auditors %ere a%are of liuidit$ &roblems in the com&an$ and that it %as seeing outside financing( The

claimants too over the com&an$ for nominal amounts so that the$ could obtain services of the com&an$s

t%o directors( 6 never disclosed to


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Kse to %hich the statement is to be &ut

ince


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court held that auditors and accountants %ere under a higher standard of care %hen advising on com&an$

acuisitions since the losses can be much greater( 6DC assumed vicarious liabilit$ for its &artners

statements(

-nother case has tested the courts inter&retation2

@40 .acon and &oodro and rnst ; *oung

N7M alleged that defendants had failed to &oint out that com&anies it %as targeting to invest in %ould suffer

huge reAinsurance losses2 and %hether these could be &rotected against( The$ sued defendants as financialadvisers for overA&a$ing //0 million &ounds for these com&anies( 8ELD2 though its true that accountants

o%e a higher standard of care %hile advising on taeovers due to &otential losses, the$ had met this standard

in this case for the advice given %as eual to %hat an$ com&etent &rofessional %ould have given( 5urther,

the &laintiffs %ould have still bought the com&anies(

5or grou& situations, there has been further clarification in form of t%o im&ortant cases2

.arings lc Coo(ers ; Lybrand

6arings &lc colla&sed in 1990 after lossAmaing trader b$ the general manager of its inga&ore subsidiar$

652 %hich %as audited b$ the defendants( The defendants had &rovided 6arings directors %ith

consolidation schedules and a co&$ of the audited re&ort( The defendants argued that the$ onl$ o%ed a dut$

of care to 65 and not 6arings( 8ELD2 the defendants must have no%n that their audit re&ort and

consolidation schedules %ould be relied on at grou& level and so the$ o%ed a dut$ of care to 6arings(

.CCI A/verseasB Ltd rnst ; &hinney 199E

The defendants audited the grou& accounts but not of the claimant subsidiar$( The claimants ho%ever

claimed that the auditors o%e a dut$ of care to them( 8ELD2 No dut$ of care %as o%ed to the subsidiar$

because no s&ecific information is normall$ channelled do%n b$ a holding com&an$ to the com&an$s

subsidiaries(

Limiting Liabilit$:

Due to &otential liabilit$ of auditors, auditing firms have been e'&loring %a$s of limiting their liabilit$( TheLimited Liabilit$ Partnershi&s -ct /BBB hel&ed such firms in limiting their liabilit$( The liabilit$ of audit

&artners can no% be limited(

#n addition, several firms have incor&orated their audit &ractices *registered them into com&anies)2 to eno$

limited liabilit$(

DEFENCE, TO NEGLIGENCE

There are several defences available to a claim of negligence( These are2

.ontributor$ Negligence

The courts ma$ reduce the damages to be &aid b$ the claimant if the defendant establishes that the$contributed to their o%n inur$ or loss( This is no%n as contributor$ negligence(

Sayers v arlo FDC 197?

The claimant %as inured %hile tr$ing to climb out of a &ublic toilet cubicle that had defective loc( 8ELD!

the claimant had contributed to her inuries b$ the method she used to climb out(

#f the defendant can &rove that the claimant %as &artiall$ at fault2 damages are reduced b$ a &ercentage that

is ust and reasonable based on the claimants share of the blame( #t ranges normall$ from 1BA@0( 8o%ever

sometimes, the$ ma$ be reduced u& to 1BB2 leaving the claimant not liable(

Holenti NonA5it #nuria

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The defence is called volenti non fit inuria *damage is not done to someone %ho consents) and the claimant

is said to be volens *%illing)(

#t means that both &arties have voluntaril$ consented to the risinur$( #t ma$ be either e'&ress *b$

%ordsagreement) or im&lied from the conduct of &ersons involved(

ICI v Shatell

The claimant and his brother disregarded safet$ &recautions %hile using detonators, thus inuring the

claimant( 8ELD! b$ not follo%ing safet$ &recautions, the$ had voluntaril$ consented to inur$(

The claimant must be full$ informed of the riss before he consents to them( #m&lied consent is thus rare(

Dann v amilton

- girl &assenger in a vehicle driven b$ a drun &erson still succeeded in claim for negligence( Though she

%as a%are of the ris, there %as no evidence she %illingl$ consented to the ris(

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Negligence-Torts